Exhibit 4.1





Exhibit 4.1




Published
CUSIP Number: 94105JAG0




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of July 11, 2011




among




WASTE CONNECTIONS, INC.,

and its Subsidiaries listed on Schedule 1 hereto

under the heading “Borrower Subsidiaries”,

as the Borrowers,




BANK OF AMERICA, N.A.,

as the Administrative Agent,

Swing Line Lender and L/C Issuer,




and




THE OTHER LENDERS PARTY HERETO,




with




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

and

WELLS FARGO SECURITIES, LLC,

as the Joint Lead Arrangers and Joint Book Managers,




and




JPMORGAN CHASE BANK, N.A.,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Syndication Agents




and




UNION BANK, N.A.

and

U.S. BANK, NATIONAL ASSOCIATION

as Co-Documentation Agents



 


 









 






TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	24	 
	1.03 Accounting Terms
	 	 	25	 
	1.04 Rounding
	 	 	26	 
	1.05 Times of Day
	 	 	26	 
	1.06 Letter of Credit Amounts
	 	 	26	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	26	 
	 
	 	 	 	 
	2.01 The Committed Loans
	 	 	26	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	27	 
	2.03 Letters of Credit
	 	 	28	 
	2.04 Swing Line Loans
	 	 	37	 
	2.05 Prepayments
	 	 	40	 
	2.06 Termination or Reduction of the Aggregate Commitments
	 	 	41	 
	2.07 Repayment of Loans
	 	 	41	 
	2.08 Interest
	 	 	41	 
	2.09 Fees
	 	 	42	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	43	 
	2.11 Evidence of Debt
	 	 	44	 
	2.12 Payments Generally; the Administrative Agent’s Clawback
	 	 	44	 
	2.13 Sharing of Payments
	 	 	46	 
	2.14 Accordion Advances (Increases and Replacements of the
Aggregate Commitments and New Term Loans)
	 	 	47	 
	2.15 Joint and Several Liability of the Borrowers
	 	 	50	 
	2.16 Designation of Parent as the Agent for the Borrowers
	 	 	53	 
	2.17 Cash Collateral
	 	 	54	 
	2.18 Defaulting Lenders
	 	 	55	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	56	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	56	 
	3.02 Illegality
	 	 	60	 
	3.03 Inability to Determine Rates
	 	 	61	 
	3.04 Increased Costs; Reserves on LIBOR Rate Loans
	 	 	61	 
	3.05 Compensation for Losses
	 	 	63	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	64	 
	3.07 Survival
	 	 	64	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	64	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension and Amendment and Restatement
	 	 	64	 
	4.02 Conditions to all Credit Extensions
	 	 	67	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	68	 
	 
	 	 	 	 
	5.01 Corporate Authority
	 	 	68	 
	5.02 Governmental Approvals
	 	 	68	 





 


i









 





	 	 	 	 	 
	5.03 Title to Properties; Leases
	 	 	68	 
	5.04 Financial Statements; Solvency
	 	 	69	 
	5.05 No
Material Changes, Etc.
	 	 	69	 
	5.06
Permits, Franchises, Patents, Copyrights, Etc.
	 	 	69	 
	5.07 Litigation
	 	 	69	 
	5.08 No
Materially Adverse Contracts, Etc.
	 	 	69	 
	5.09
Compliance with Other Instruments, Laws, Etc.
	 	 	69	 
	5.10 Tax Status
	 	 	70	 
	5.11 No Event of Default
	 	 	70	 
	5.12 Holding Company and Investment Company Acts
	 	 	70	 
	5.13 Absence
of Financing Statements, Etc.
	 	 	70	 
	5.14 ERISA Compliance
	 	 	70	 
	5.15 Use of Proceeds
	 	 	71	 
	5.16 Environmental Compliance
	 	 	72	 
	5.17 Transactions with Affiliates
	 	 	73	 
	5.18 Subsidiaries
	 	 	73	 
	5.19 True Copies of Charter and Other Documents
	 	 	74	 
	5.20 Disclosure
	 	 	74	 
	5.21 Capitalization
	 	 	74	 
	5.22 Permits and Licenses
	 	 	74	 
	5.23 Excluded Subsidiaries
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	75	 
	 
	 	 	 	 
	6.01 Punctual Payment
	 	 	75	 
	6.02 Maintenance of Offices
	 	 	75	 
	6.03 Records and Accounts
	 	 	75	 
	6.04 Financial Statements, Certificates and Information
	 	 	75	 
	6.05 Legal Existence and Conduct of Business
	 	 	77	 
	6.06 Maintenance of Properties
	 	 	77	 
	6.07 Insurance
	 	 	78	 
	6.08 Taxes
	 	 	78	 
	6.09 Inspection of Properties, Books, and Contracts
	 	 	78	 
	6.10 Compliance with Laws, Contracts, Licenses and Permits;
Maintenance of Material Licenses and Permits
	 	 	78	 
	6.11 Environmental Indemnification
	 	 	79	 
	6.12 Further Assurances
	 	 	79	 
	6.13 Notice of Potential Claims or Litigation
	 	 	79	 
	6.14 Notice of Certain Events Concerning Insurance and Environmental Claims
	 	 	79	 
	6.15 Notice of Default
	 	 	80	 
	6.16 New Subsidiaries
	 	 	80	 
	6.17 Reserved
	 	 	81	 
	6.18 Additional Notices
	 	 	81	 
	6.19 Designation of Excluded Subsidiaries
	 	 	81	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	82	 
	 
	 	 	 	 
	7.01 Restrictions on Indebtedness
	 	 	82	 
	7.02 Restrictions on Liens
	 	 	83	 





 


ii









 





	 	 	 	 	 
	7.03 Restrictions on Investments
	 	 	85	 
	7.04 Merger, Consolidation and Disposition of Assets
	 	 	85	 
	7.05 Sale and Leaseback
	 	 	86	 
	7.06 Restricted Payments and Redemptions
	 	 	86	 
	7.07 Employee Benefit Plans
	 	 	87	 
	7.08 Burdensome Agreements
	 	 	88	 
	7.09 Business Activities
	 	 	88	 
	7.10 Transactions with Affiliates
	 	 	88	 
	7.11 Prepayments of Indebtedness
	 	 	88	 
	7.12 Accounting Changes
	 	 	88	 
	7.13 Use of Proceeds
	 	 	89	 
	7.14 Financial Covenants
	 	 	89	 
	7.15 Restrictions on Excluded Subsidiaries
	 	 	89	 
	 
	 	 	 	 
	ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	90	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	90	 
	8.02 Remedies Upon Event of Default
	 	 	92	 
	8.03 Application of Funds
	 	 	92	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	93	 
	 
	 	 		 
	9.01 Appointment and Authorization of the Administrative Agent
	 	 	93	 
	9.02 Rights as a Lender
	 	 	93	 
	9.03 Exculpatory Provisions
	 	 	94	 
	9.04 Reliance by the Administrative Agent
	 	 	95	 
	9.05 Delegation of Duties
	 	 	95	 
	9.06 Resignation of the Administrative Agent
	 	 	95	 
	9.07 Non-Reliance on the Administrative Agent and Other the Lenders
	 	 	96	 
	9.08 No
Other Duties, Etc.
	 	 	96	 
	9.09 The Administrative Agent May File Proofs of Claim
	 	 	96	 
	9.10 Release of Borrowers
	 	 	97	 
	 
	 	 		 
	ARTICLE X. MISCELLANEOUS
	 	 	97	 
	 
	 	 	 	 
	10.01
Amendments, Etc.
	 	 	97	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	99	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	102	 
	10.04 Expenses; Indemnity; Damage Waiver 
	 	 	102	 
	10.05 Payments Set Aside 
	 	 	104	 
	10.06 Successors and Assigns 
	 	 	105	 
	10.07 Treatment of Certain Information; Confidentiality 
	 	 	110	 
	10.08 Right of Setoff 
	 	 	111	 
	10.09 Interest Rate Limitation 
	 	 	111	 
	10.10 Counterparts; Effectiveness 
	 	 	112	 
	10.11 Survival of Representations and Warranties 
	 	 	112	 
	10.12 Severability 
	 	 	112	 
	10.13 Replacement of Lenders 
	 	 	112	 
	10.14 Governing Law; Jurisdiction; Etc. 
	 	 	113	 
	10.15 Waiver of Right to Trial by Jury 
	 	 	114	 





 


iii









 





	 	 	 	 	 
	10.16 USA PATRIOT Act Notice 
	 	 	114	 
	10.17 No Advisory or Fiduciary Responsibility
	 	 	 115	 
	10.18 ENTIRE AGREEMENT 
	 	 	115	 
	10.19 Existing Credit Agreement Amended and Restated 
	 	 	116	 





 


iv









 





SCHEDULES




	 	 	 
	1

	 	List of Subsidiaries of the Parent
	1.01A

	 	Existing Letters of Credit
	1.01B

	 	Covenanted Senior Debt
	2.01

	 	Commitments and Applicable Percentages
	5.07

	 	Litigation
	5.14

	 	Pension Plans
	5.16

	 	Environmental Matters
	5.17

	 	Related Party Transactions
	6.07

	 	Permitted Self-Insurance
	7.01

	 	Existing Indebtedness
	7.02

	 	Existing Liens
	10.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	A-1

	 	Form of Committed Loan Notice
	A-2

	 	Form of Swing Line Loan Notice
	B-1

	 	Form of Revolving Credit Note
	B-2

	 	Form of Swing Line Note
	C-1

	 	Form of Compliance Certificate
	C-2

	 	Form of Environmental Compliance Certificate
	D-1

	 	Form of Assignment and Assumption
	D-2

	 	Form of Administrative Questionnaire
	E

	 	Form of Instrument of Accession






 


v









 







AMENDED AND RESTATED CREDIT AGREEMENT




AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of July
11, 2011, among WASTE CONNECTIONS, INC., a Delaware corporation (the “Parent”), the
Subsidiaries listed on Schedule 1 hereto under the heading “Borrower Subsidiaries”
(together with Parent, collectively the “Borrowers”), each lender from time to time party
hereto (collectively, the “Lenders”, and each individually, a “Lender”), and BANK
OF AMERICA, N.A., as the Administrative Agent, Swing Line Lender and L/C Issuer.



WHEREAS, certain of the Borrowers, the Administrative Agent and certain of the Lenders are
parties to that certain Revolving Credit Agreement, dated as of September 27, 2007 (as amended from
time to time, the “Existing Credit Agreement”), pursuant to which the lenders thereunder
have made loans and other extensions of credit to the Borrowers;



WHEREAS, the Borrowers have requested, among other things, that the Lenders and the
Administrative Agent amend and restate the Existing Credit Agreement, and the Lenders and
Administrative Agent are willing to do so on the terms and conditions set forth herein;



NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree that on the Closing Date, the Existing Credit
Agreement shall be amended and restated in its entirety by this Agreement, the terms of which are
as follows:



ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:



“Acceding Lender” has the meaning set forth in Section 2.14(c).



“Accordion Advance” has the meaning set forth in Section 2.14(a).



“Accordion Funding Date” has the meaning set forth in Section 2.14(e).



“Accordion Tranche” has the meaning set forth in Section 2.14(b).



“Accountants” means an independent accounting firm of national standing reasonably
acceptable to the Required Lenders and the Administrative Agent.



“Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrowers and the Lenders.


 


1









 





“Administrative Questionnaire” means an Administrative Questionnaire substantially in
the form of Exhibit D-2 or any other form approved by the Administrative Agent.



“Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



“Aggregate Commitments” means the aggregate Revolving Commitments of the Revolving
Lenders outstanding from time to time, which amount shall initially equal $1,200,000,000, as such
amount may be reduced or increased pursuant to the terms hereof.



“Applicable Percentage” means (a) in respect of the Aggregate Commitments, with
respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Commitments represented by such Revolving Lender’s Revolving Commitment at
such time, subject to adjustment as provided in Section 2.18, and (b) in respect of any
term loan advanced hereunder from time to time pursuant to Article II (including pursuant
to Section 2.14), with respect to any Lender advancing a portion of such term loan at any
time, the percentage (carried out to the ninth decimal place) of the term loan represented by the
principal amount of such term loan Lender’s portion of the Outstanding Amount of the term loan at
such time.



If the commitments of all of the Revolving Lenders to make Committed Loans and the obligation
of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section
8.02(a) or if the Aggregate Commitments have expired, then the Applicable Percentages of the
Revolving Lenders shall be determined based on the Applicable Percentages of the Revolving Lenders
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption, Instrument of Accession or other instrument, as the case may be,
pursuant to which such Lender becomes a party hereto.



“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to (i) Section 4.01(a)(x) for the initial period following
the Closing Date and (ii) thereafter, Section 6.04(c):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	LIBOR Rate	 	Base Rate	 	Commitment
	Level	 	Leverage Ratio	 	Loans & L/C Fees	 	Loans	 	Fee
	I
	 	 	3  3.25:1.00	 	 	 	2.000	%	 	 	1.000	%	 	 	0.350	%
	II
	 	3  2.75:1.00 and 
<3.25:1.00	 	 	1.650	%	 	 	0.650	%	 	 	0.300	%
	III
	 	3  2.25:1.00 and 
<2.75:1.00	 	 	1.400	%	 	 	0.400	%	 	 	0.250	%
	IV
	 	3 1.75:1.00 and 
<2.25:1.00	 	 	1.275	%	 	 	0.275	%	 	 	0.225	%
	V
	 	 	< 1.75:1.00	 	 	 	1.150	%	 	 	0.150	%	 	 	0.200	%





 


2









 





Any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall
become effective as of the first Business Day immediately following the date a Compliance
Certificate is received by the Administrative Agent pursuant to Section 6.04(c);
provided, however, that if a Compliance Certificate is not delivered within ten
(10) days after the time periods specified in such Section 6.04(c), then Level I (as set
forth in the table above) shall apply as of the first Business Day thereafter, subject to
prospective adjustment upon actual receipt of such Compliance Certificate.



Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



“Arrangers” means, collectively, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, in their respective capacities as joint
lead arrangers and joint book managers.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
D-1 or any other form approved by the Administrative Agent.



“Attributable Indebtedness” means, with respect to any Person, on any date, (a) in
respect of any Capital Lease, the capitalized amount thereof that would appear on the balance sheet
of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any
Synthetic Lease, the capitalized amount of the remaining lease payments thereunder that would
appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such
Synthetic Lease were accounted for as a Capital Lease.



“Audited Financial Statements” means the audited consolidated balance sheet of the
Parent and its Subsidiaries for the fiscal year ended December 31, 2010, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Parent and its Subsidiaries, including the notes thereto.


 


3









 





“Availability Period” means, with respect to the Committed Loans, the period from and
including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the
Revolving Commitment of each Revolving Lender to make Committed Loans and of the obligation of the
L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.



“Balance Sheet Date” means December 31, 2010.



“Bank of America” means Bank of America, N.A. and its successors.



“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101,
et seq.), as amended and in effect from time to time.



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



“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



“Base Rate Loan” means a Loan that bears interest based on the Base Rate.



“Benefit Amount” has the meaning specified in Section 2.15(f).



“Borrowers” has the meaning specified in the introductory paragraph hereto.



“Borrower Materials” has the meaning specified in Section 6.04.



“Borrowing” means a Committed Borrowing, a Swing Line Borrowing or a borrowing
consisting of a portion of any term loan advanced hereunder from time to time pursuant to
Article II (including pursuant to Section 2.14), as the context may require.



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Rate Loan,
means any such day that is also a London Banking Day.



“Capital Lease” means, with respect to any Person, any lease of (or other agreement
conveying the right to use) any real or personal property by such Person that, in conformity with
GAAP, is accounted for as a capital lease on the balance sheet of such Person.


 


4









 





“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing
Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as
the context may require), cash or deposit account balances or, if the L/C Issuer or the Swing Line
Lender benefitting from such collateral shall agree in its sole discretion, other credit support,
in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the
Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.



“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended and in effect from time to time.



“CFO” means the principal financial or accounting officer of the Borrowers.



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance
of any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary, (x)
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.



“Closing Date” means the first date all the conditions precedent set forth in
Section 4.01 are satisfied or waived in accordance with Section 10.01, which date
is July 11, 2011.



“Code” means the Internal Revenue Code of 1986, as amended and in effect from time to
time.



“Commitment Fee” has the meaning specified in Section 2.09(a) hereof.



“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of
the Revolving Lenders pursuant to Section 2.01 or Section 2.14.



“Committed Loan” has the meaning specified in Section 2.01.



“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Committed Loans that are
LIBOR Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A-1.



“Compliance Certificate” means a certificate substantially in the form of Exhibit
C-1.


 


5









 





“Conforming Amendment” has the meaning specified in Section 2.14(f).



“Consolidated EBIT” means, for any period, the Consolidated Net Income (or Deficit) of
the Consolidated Group determined in accordance with GAAP, plus (a) interest expense, plus
(b) income taxes, plus (c) non-cash stock compensation charges, to the extent that such
charges were deducted in determining Consolidated Net Income (or Deficit), all as determined in
accordance with GAAP, including, without limitation, charges for stock options and restricted stock
grants, plus (d) one-time, non-recurring acquisition costs to the extent such costs are
expensed in accordance with FAS 141R and not capitalized, plus (e) non-controlling interest
expense, plus (f) non-cash extraordinary non-recurring writedowns or writeoffs of assets,
including non-cash losses on the sale of assets outside the ordinary course of business,
plus (g) any losses associated with the extinguishment of Indebtedness, plus (h)
special charges relating to the termination of a Swap Contract, plus (i) any accrued
settlement payments in respect of any Swap Contract owing by any members of the Consolidated Group,
plus (j) one-time, non-recurring charges in connection with the modification of employment
agreements with certain members of senior management as approved by the Administrative Agent (with
such approval not to be unreasonably withheld), minus (k) non-cash extraordinary gains on the sale
of assets to the extent included in Consolidated Net Income (or Deficit), and minus (l) any
accrued settlement payments in respect of any Swap Contact payable to any members of the
Consolidated Group.



“Consolidated EBITDA” means, for any period (without duplication), (a) Consolidated
EBIT plus the depreciation expense and amortization expense, to the extent that each was deducted
in determining Consolidated Net Income (or Deficit), determined in accordance with GAAP, plus (b)
the depreciation expense and amortization expense (without duplication) of any company whose
Consolidated EBITDA was included under clause (c) hereof,
plus (c) Consolidated EBITDA for
the prior twelve (12) months of companies or business segments acquired by the Consolidated Group
during the respective reporting period (without duplication)
provided that (i) the financial
statements of such acquired companies or business segments have been audited for the period sought
to be included by an independent accounting firm satisfactory to the Administrative Agent, or (ii)
the Administrative Agent consents to such inclusion after being furnished with other acceptable
financial statements, and provided further that such acquired Consolidated EBITDA may be further
adjusted to add-back non-recurring private company expenses which are discontinued upon acquisition
(such as owner’s compensation), as approved by the Administrative Agent. Simultaneously with the
delivery of the financial statements referred to in clauses (c)(i) and (c)(ii)
hereof, the CFO shall deliver to the Administrative Agent a Compliance Certificate and appropriate
documentation certifying the historical operating results, adjustments and balance sheet of the
acquired company or business segment.



“Consolidated Group” means the Parent and its consolidated Subsidiaries.



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


 


6









 





“Consolidated Total Funded Debt” means, with respect to the Consolidated Group, the
sum, without duplication, of (a) the aggregate amount of Indebtedness of the Consolidated Group on
a consolidated basis, relating to (i) the borrowing of money or the obtaining of credit, including
the issuance of notes, bonds, debentures or similar debt instruments, (ii) Attributable
Indebtedness in respect of any Capital Leases and Synthetic Leases, (iii) the non-contingent
deferred purchase price of assets and companies (typically known as holdbacks) to the extent
recognized as a liability in accordance with GAAP, but excluding short-term trade payables incurred
in the ordinary course of business, and (iv) any unpaid reimbursement obligations with respect to
letters of credit outstanding, but excluding any contingent obligations with respect to letters of
credit outstanding; plus (b) Indebtedness of the type referred to in clause (a) of another
Person who is not a member of the Consolidated Group Guaranteed by one or more members of the
Consolidated Group.



“Consolidated Total Interest Expense” means, for any period, the aggregate amount of
interest required to be paid or accrued by the Consolidated Group during such period on all
Indebtedness of the Consolidated Group outstanding during all or any part of such period, whether
such interest was or is required to be reflected as an item of expense or capitalized, including
payments treated as interest under GAAP in respect of any Capital Lease or any Synthetic Lease and
including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees or
expenses in connection with the borrowing of money, but (a) excluding (i) any amortization and
other non-cash charges or expenses incurred during such period to the extent included in
determining consolidated interest expense, including without limitation, non-cash amortization of
deferred debt origination and issuance costs and amortization of accumulated other comprehensive
income, (ii) all amounts associated with the unwinding or termination of any Swap Contract, (iii)
any accrued settlement payments in respect of any Swap Contract payable to any member of the
Consolidated Group and (iv) to the extent included as an item of interest expense, any premium paid
to prepay, repurchase or redeem any Indebtedness incurred pursuant to Section 7.01, and (b)
including any accrued settlement payments in respect of any Swap Contract owing by any member of
the Consolidated Group.



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Covenanted Senior Debt” means those notes identified on Schedule 1.01(b)
hereto and all other senior Indebtedness for borrowed money incurred by the Borrowers from time to
time which impose performance-based covenants upon any Borrower.



“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or
other applicable jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


7









 





“Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



“Default Rate” means (a) with respect to any Loan, the interest rate otherwise
applicable to such Loan plus 2% per annum, (b) with respect to the L/C Fees, the Applicable Rate
used in determining the L/C Fees plus 2% per annum, and (c) with respect to all other Obligations
under this Agreement then due and payable, an interest rate equal to the Base Rate plus the
Applicable Rate otherwise applicable to Base Rate Loans plus 2% per annum.



“Defaulting Lender” means, subject to Section 2.18(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to (i) fund all or any portion of its Loans
within three (3) Business Days after the date such Loans were required to be funded hereunder, or
(ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any
other amount required to be paid by it hereunder (including in respect of its participation in
Letters of Credit or Swing Line Loans) within three (3) Business Days after the date such payment
is due, (b) has notified the Borrowers, the Administrative Agent or any Lender that it does not
intend to comply with its funding obligations or has made a public statement to that effect with
respect to its funding obligations hereunder or under other agreements in which it commits to
extend credit, (c) has failed, within three (3) Business Days after request by the Administrative
Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its
funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to
this clause (c) upon receipt of such written confirmation by the Administrative Agent), or
(d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority. Any determination by the Administrative Agent that a Lender
is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and
binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject
to Section 2.18(b)) upon delivery of written notice of such determination to the Borrowers,
the L/C Issuer, the Swing Line Lender and each other Lender.



“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



“Distribution” means the declaration or payment of any dividend or distribution on or
in respect of any Equity Interest (other than dividends or other distributions payable solely in
additional Equity Interests); the purchase, redemption, retirement or other acquisition of any
Equity Interest, directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any other distribution
on or in respect of any Equity Interest.


 


8









 





“Dollar” and “$” mean lawful money of the United States.



“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).



“Environmental Laws” has the meaning specified in Section 5.16(a).



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrowers directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.



“Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



“Equity Interests” means, with respect to any Person, all of the shares of capital
stock of any class of, or other ownership or profit interests in, such Person, all of the
warrants, options or other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other ownership or profit interests
in such Person (including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with any Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



 


9









 






“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan (other than
a Multiemployer Plan); (b) the withdrawal of any Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification


that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate or the treatment of a
Pension Plan (other than a Multiemployer Plan) amendment as a termination
under Section 4041 of ERISA or notification of a filing of a notice of intent to terminate or
the treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA; (e)
the institution by the PBGC of proceedings to terminate a Pension Plan (other than a Multiemployer
Plan) or notification of the institution by the PBGC of proceedings to terminate a Multiemployer
Plan; (f) any event or condition which could reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan (other than a Multiemployer Plan); (g) the determination that any Pension Plan (other
than a Multiemployer Plan) is considered an at-risk plan within the meaning of Section 430 of the
Code or Section 303 of ERISA or notification that any Multiemployer Plan is considered a plan in
endangered or critical status within the meaning of Sections 431 and 432 of the Code or Sections
304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any
ERISA Affiliate.



“Event of Default” has the meaning specified in Section 8.01.



“Exchange Act” means the Securities Exchange Act of 1934, as amended and in effect
from time to time.



“Excluded Subsidiaries” means each of the Subsidiaries listed on Schedule 1
under the heading “Excluded Subsidiaries”, each Foreign Subsidiary and each other Subsidiary from
time to time designated as an Excluded Subsidiary in accordance with Section 6.19 and
subject to Section 7.15.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrowers hereunder, (a) Taxes imposed on or measured by its overall net income or net receipts
(however denominated), and franchise or similar Taxes imposed on it (in lieu of net income Taxes),
by (i) the jurisdiction (or any political subdivision thereof) under the Laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable Lending Office is located, or (ii) by any Governmental Authority as a
result of a present or former connection between such recipient and the jurisdiction of such
Governmental Authority, (b) any branch profits Taxes imposed by the United States or any similar
Tax imposed by any other jurisdiction in which any of the Borrowers is located, (c) any backup
withholding Tax that is required by the Code to be withheld from amounts payable to a Lender that
has failed to comply with Section 3.01(e), (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrowers under Section 10.13), any United States
withholding Tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a
new Lending Office (or assignment), to receive additional amounts from the Borrowers with respect
to such withholding tax pursuant to Section 3.01(a)(ii) or (c), and (e) in the case
of any non-Foreign Lender which changes its Lending Office to an office outside the United States,
any resulting United States withholding Taxes that are in effect and would apply to a payment to
such Lender as of the date of the change of the Lending Office.


 


10









 





“Existing Credit Agreement” has the meaning specified in the first recital hereto.



“Existing Letters of Credit” means all “Letters of Credit” (as defined in the Existing
Credit Agreement) and set forth on Schedule 1.01A.



“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) 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 (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



“Fee Letters” means, collectively, (a) the letter agreement, dated as of May 18, 2011,
among the Parent, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
(b) the letter agreement, dated as of May 18, 2011, between the Parent and J.P. Morgan Securities
LLC, and (c) the letter agreement, dated as of May 18, 2011, between the Parent and Wells Fargo
Securities, LLC.



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



“Foreign Lender” means any Lender that is organized under the applicable Laws of a
jurisdiction other than that in which any Borrower is resident for tax purposes (including such a
Lender as the L/C Issuer) or any other Lender that is not a “United States” person within the
meaning of Section 7701(a)(30) of the Code. For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.



“Foreign Subsidiary” means any Subsidiary of the Parent that is not a Domestic
Subsidiary.



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.


 


11









 





“Fronting Fee” has the meaning specified in Section 2.03(i).



“FRB” means the Board of Governors of the Federal Reserve System of the United States.



“Fuel Derivatives Obligations” means fuel price swaps, fuel price caps and fuel price
collar and floor agreements, and similar agreements or arrangements designed to protect against or
manage fluctuations in fuel prices.



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



“GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the


related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



 


12









 







“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



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



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



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



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



(d) the net present value (using the Base Rate as the discount rate) of every obligation of
such Person issued or assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding (A) trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not overdue or which are being contested in
good faith and (B) contingent purchase price obligations solely to the extent that the contingency
upon which such obligation is conditioned has not yet occurred);



(e) Attributable Indebtedness of such Person in respect of Capital Leases;



(f) Attributable Indebtedness of such Person in respect of Synthetic Leases;



(g) all sales by such Person of (A) accounts or general intangibles for money due or to become
due, (B) chattel paper, instruments or documents creating or evidencing a right to payment of money
or (C) other receivables (collectively, “Receivables”), whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the business operations of
such Person relating thereto or a disposition of defaulted Receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to pay any discount,
interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith, provided, however, that sales referred to in clauses (B) and (C) shall not constitute
Indebtedness to the extent that such sales are non-recourse to such Person;



(h) every obligation of such Person (an “equity related purchase obligation”) to purchase,
redeem, retire or otherwise acquire for value any Equity Interest of any class issued by such
Person, or any rights measured by the value of such Equity Interest;


 


13









 





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



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



(k) all Guarantees of such Person in respect of any of the foregoing.



The “amount” or “principal amount” of any Indebtedness at any time of determination
represented by (x) any Indebtedness, issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof determined in accordance
with generally accepted accounting principles, (y) any sale of Receivables shall be the amount of
unrecovered capital or principal investment of the purchaser (other than the Borrowers) thereof,
excluding amounts representative of yield or interest earned on such investment, and (z) any equity
related purchase obligation shall be the maximum fixed redemption or purchase price thereof
inclusive of any accrued and unpaid dividends to be comprised in such redemption or purchase price.



“Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.



“Indemnitees” has the meaning specified in Section 10.04(b).



“Information” has the meaning specified in Section 10.07.



“Instrument of Accession” has the meaning specified in Section 2.14(c).



“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a LIBOR Rate Loan, exceeds three (3) months, the
respective dates that fall every three (3) months after the beginning of such Interest Period shall
also be Interest Payment Dates and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



“Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date
such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on
the date one (1), two (2), three (3) or six (6) months thereafter, as selected by the Borrowers in
a Loan Notice; provided that:



(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;


 


14









 





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



(c) no Interest Period shall extend beyond the Maturity Date.



“Interim Balance Sheet Date” means March 31, 2011.



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition (or assumption, as
applicable) of capital stock or other Equity Interests, Indebtedness, assets constituting a
business unit or all or a substantial part of the business of, another Person, (b) a loan, advance
or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of
any other debt or equity participation or interest in, another Person, including any partnership or
joint venture interest in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that constitute a business
unit. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



“IRB LOC” means any Letter of Credit providing credit support for an IRB, which may be
a so-called “direct pay” Letter of Credit.



“IRBs” means industrial revenue bonds, solid waste disposal bonds or similar
tax-exempt bonds issued by or at the request of the Borrowers.



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



“Issuer Documents” means with respect to any Letter of Credit, the L/C Application,
and any other document, agreement and instrument entered into by the L/C Issuer and any Borrower or
in favor of the L/C Issuer and relating to any such Letter of Credit.



“KYC Requirement Information” means, with respect to any Subsidiary of the Parent,
such Subsidiary’s tax identification number, physical address, country of principal place of
business, headquarters and formation, type of legal entity and phone number.



“Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial
determinations, including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, provided, however, that with respect
to Taxes, “Laws” shall also include guidelines issued by any Governmental Authority, whether or not
having the force of law.


 


15









 





“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s
funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.



“L/C Application” means an application and agreement for the issuance or amendment of
a Letter of Credit in the form from time to time in use by the L/C Issuer.



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.



“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



“L/C Expiration Date” means the day that is seven (7) days prior to the Maturity Date
then in effect for the Committed Loans (or, if such day is not a Business Day, the next preceding
Business Day).



“L/C Fee” has the meaning specified in Section 2.03(h).



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, any successor issuer of Letters of Credit hereunder or any other Lender which has agreed
in writing to become an “L/C Issuer” hereunder and has been approved by the Borrowers and the
Administrative Agent. All singular references to the L/C Issuer shall mean any L/C Issuer, the L/C
Issuer that has issued the applicable Letter of Credit, or all L/C Issuers, as the context may
require.



“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



“L/C Supported IRBs” means IRBs which are enhanced by IRB LOCs.



“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



“Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrowers and the Administrative Agent.



“Letter of Credit” means any standby letter of credit issued hereunder and shall
include IRB LOCs and the Existing Letters of Credit.



“Leverage Ratio” has the meaning specified in Section 7.14(a).


 


16









 





“LIBOR Rate” means,



(a) for any Interest Period with respect to a LIBOR Rate Loan, the rate per annum equal to (i)
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or such
other commercially available source providing quotations of BBA LIBOR as may be designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) London
Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii)
if such rate is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the LIBOR Rate Loan being made,
continued or converted and with a term equivalent to such Interest Period would be offered by Bank
of America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the
commencement of such Interest Period; and



(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two (2) London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one (1) month commencing that day or (ii) if such published rate is not available at
such time for any reason, the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one (1)
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



“LIBOR Rate Loan” means a Loan that bears interest at a rate based on clause
(a) of the definition of LIBOR Rate.



“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



“Loan” means an extension of credit by a Lender to the Borrowers under Article
II in the form of a Committed Loan, a Swing Line Loan or any term loan advanced hereunder from
time to time pursuant to Article II (including pursuant to Section 2.14) and
“Loans” shall mean all of such extensions of credit collectively.



“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section
2.17, the Fee Letters, each joinder agreement and related documents entered into or delivered
by a Subsidiary of the Parent in connection with such Subsidiary becoming a Borrower hereunder, and
each amendment, consent and/or waiver executed in connection with any of the foregoing
imposing Obligations of any kind on any Borrower, each as amended, modified, supplemented or
replaced from time to time.


 


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“Loan Notice” means a Committed Loan Notice, a Swing Line Loan Notice or a similar
notice relating to any term loan advanced hereunder from time to time pursuant to Article
II (including pursuant to Section 2.14).



“London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



“Material Adverse Effect” means, with respect to any event or occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or governmental
investigation or proceeding), (a) a material adverse effect on the business, properties, condition
(financial or otherwise), assets or operations of the Borrowers taken as a whole or (b) any
impairment of the validity, binding effect or enforceability of this Agreement or any of the other
Loan Documents or any impairment of the material rights, remedies or benefits available to the
Administrative Agent or any Lender under any Loan Document. In determining whether any individual
event could reasonably be expected to result in a Material Adverse Effect, notwithstanding that
such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have
occurred if the cumulative effect of such event and all other then-existing events could reasonably
be expected to result in a Material Adverse Effect.



“Maturity Date” means July 11, 2016.



“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five (5) plan years, has made or been obligated to make
contributions.



“Multiple Employer Plan” means a Plan covered by Title IV of ERISA (other than a
Multiemployer Plan) which has two or more contributing sponsors (including any Borrower or any
ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in
Section 4064 of ERISA.



“Municipal Contracts” means governmental permits issued to a Borrower by, and
franchises and contracts entered into between a Borrower and, any municipal or other governmental
entity, as the same may be amended from time to time.



“Note” means a Revolving Credit Note, a Swing Line Note or a promissory note
representing any term loan advanced hereunder from time to time pursuant to Article II
(including pursuant to Section 2.14), as the context may require.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, in each case whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.


 


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“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and
including any certificate or articles of formation or organization of such entity.



“Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document, excluding, however, such Taxes imposed as a
result of an assignment or transfer (other than an assignment that occurs as a result of a
Borrower’s request pursuant to Section 10.13 or after the occurrence and during the
continuance of a Default).



“Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; (ii) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date
and any other changes in the aggregate amount of the L/C Obligations as of such date, including as
a result of any reimbursements by the Borrowers of Unreimbursed Amounts; and (iii) with respect to
any term loan to the extent advanced hereunder from time to time pursuant to Article II
(including pursuant to Section 2.14), the outstanding principal amount of such term loan on
such date.



“Parent” has the meaning specified in the preamble to this Agreement.



“Participant” has the meaning specified in Section 10.06(d).



“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.



“Pension Act” means the Pension Protection Act of 2006, as amended and in effect from
time to time.



“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.


 


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“Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.



“Permitted Lien” has the meaning specified in Section 7.02.



“Permitted Receivables Transactions” means any sale or sales of, and/or securitization
of, or transfer of, any Receivables of the Borrowers pursuant to which (a) the Receivables SPV
realizes aggregate net proceeds of not more than $100,000,000 at any one time outstanding,
including, without limitation, any revolving purchase(s) of Receivables where the maximum aggregate
uncollected purchase price (exclusive of any deferred purchase price) for such Receivables at any
time outstanding does not exceed $100,000,000, (b) the Receivables shall be transferred or sold to
the Receivables SPV at fair market value or at a market discount, and shall not exceed $125,000,000
in the aggregate at any one time and (c) obligations arising therefrom shall be non-recourse to the
Parent and its Subsidiaries (other than the Receivables SPV).



“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any
such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



“Platform” has the meaning specified in Section 6.04.



“Pro Forma Reference Period” means, as of the calculation date for any pro forma
covenant calculation hereunder, the most recently completed Reference Period prior to such
calculation date for which financial statements have been delivered pursuant to Section
6.04.



“Public Lender” has the meaning specified in Section 6.04.



“Real Estate” means all real property at any time owned or leased (as lessee or
sublessee) by any Borrower.



“Receivables” has the meaning set forth in clause (g) of the definition of
“Indebtedness”.



“Receivables SPV” means any one or more direct or indirect wholly-owned Subsidiaries
of the Parent formed for the sole purpose of engaging in Permitted Receivables Transactions, and
which engage in no business activities other than those related to Permitted Receivables
Transactions.



“Reference Period” means as of any date of determination, the period of four (4)
consecutive fiscal quarters of the Consolidated Group or the twelve (12) month period ending on
such date, or if such date is not a fiscal quarter end date, the period of four (4) consecutive
fiscal quarters or the twelve (12) month period most recently ended (in each case treated as a
single accounting period).


 


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“Register” has the meaning specified in Section 10.06(c).



“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.



“Release” has the meaning specified in CERCLA; provided that in the event
CERCLA is amended so as to broaden the meaning of any term defined thereby, such broader meaning
shall apply as of the effective date of such amendment; and
provided further, to the extent that
the laws of a state wherein the property lies establishes a meaning for “Release” which is broader
than specified in CERCLA, such broader meaning shall apply.



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the thirty (30) day notice period has been waived.



“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Committed Loan Notice or a Loan Notice delivered in connection with any
term loan advanced hereunder from time to time pursuant to Article II (including pursuant
to Section 2.14), as the case may be, (b) with respect to an L/C Credit Extension, an L/C
Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.



“Required Lenders” means, as of any date of determination, Lenders holding more than
fifty percent (50%) of the sum of the (a) Total Outstandings (with the aggregate amount of each
Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Revolving Lender for purposes of this definition) and (b) the
unused Aggregate Commitments; provided that the unused Revolving Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.



“Responsible Officer” means the chief executive officer, president, chief operating
officer, CFO, treasurer or assistant treasurer of a Borrower, and solely for purposes of the
delivery of incumbency certificates pursuant to Section 4.01, the secretary or any
assistant secretary of a Borrower. Any document delivered hereunder that is signed by a
Responsible Officer of a Borrower shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Borrower.



“Restricted Payment” means any (a) Distribution, (b) payment or prepayment by any
Borrower or any Subsidiary to (i) such Borrower’s or such Subsidiary’s shareholders (or other
equity holders), in each case, other than to another Borrower, or (ii) any Affiliate of such
Borrower or such Subsidiary or any Affiliate of such Borrower’s or such Subsidiary’s shareholders
(or other equity holders), in each case, other than to another Borrower; provided,
however, that in the case of each of clauses (b)(i) and (b)(ii), no Restricted Payment
shall be deemed to have occurred as a result of a payment to an executive or an employee of a
Borrower in such Person’s capacity as an executive or an employee, or (c) derivatives or other
transactions with any financial institution, commodities or stock exchange or clearinghouse (a
“Derivatives Counterparty”) obligating such Borrower or such Subsidiary to make payments to
such
Derivatives Counterparty as a result of any change in market value of any Equity Interest of
such Borrower or such Subsidiary.


 


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“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make
Committed Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01 under the caption “Revolving Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.



“Revolving Credit Note” means a promissory note made by the Borrowers in favor of a
Revolving Lender evidencing Committed Loans or Swing Line Loans, as the case may be, made by such
Revolving Lender, substantially in the form of Exhibit B-1.



“Revolving Lender” means, at any time, any Lender that has a Revolving Commitment at
such time.



“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002, as amended and in effect from
time to time.



“Securities Laws” means the Securities Act of 1933, the Exchange Act, Sarbanes-Oxley
and the applicable accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of
the foregoing may be amended and in effect on any applicable date hereunder.



“Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.



“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent.


 


22









 





“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and, for the avoidance of doubt, the foregoing shall
include Fuel Derivatives Obligations and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a “Master Agreement”), including any such obligations
or liabilities under any Master Agreement.



“Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



“Swing Line Loan” has the meaning specified in Section 2.04(a).



“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
A-2.



“Swing Line Note” means a promissory note made by the Borrowers in favor of the Swing
Line Lender evidencing Swing Line Loans made by the Swing Line Lender, substantially in the form of
Exhibit B-2.



“Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



“Synthetic Lease” means, with respect to any Person, any (a) so-called synthetic,
off-balance sheet or tax retention lease, or (b) agreement for the use or possession of property
creating obligations that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).


 


23









 





“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



“Total Facility Amount” means, as at any date of determination, the sum of (i) the
Aggregate Commitments plus (ii) the aggregate Outstanding Amount of any term loan advanced
hereunder from time to time pursuant to Article II (including pursuant to Section
2.14), as the same may be increased from time to time pursuant to Section 2.14 hereof
or reduced from time to time in accordance with the terms hereof. As of the Closing Date, the
Total Facility Amount is equal to $1,200,000,000.



“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



“Total Revolving Outstandings” means the aggregate Outstanding Amount of Committed
Loans, Swing Line Loans and L/C Obligations.



“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR
Rate Loan.



“UCC” means the Uniform Commercial Code as in effect in the State of New York.



“United States” and “U.S.” mean the United States of America.



“Unreimbursed
Amount” has the meaning specified in
Section 2.03(c)(i).



1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of
similar import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Recitals, Articles, Sections, Exhibits and Schedules shall be construed to refer to Recitals,
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and regulatory provisions
consolidating,


amending, replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.




 


24









 







(b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” means “to and including.”



(c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



1.03
Accounting Terms.




(a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of
determining compliance with any covenant (including the computation of any financial covenant)
contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at
one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC
825 on financial liabilities shall be disregarded.



(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrowers or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers
shall negotiate in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide
to the Administrative Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.



(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Parent and its Subsidiaries or to the determination of any
amount for the Parent and its Subsidiaries on a consolidated basis or any similar reference shall,
in each case, be deemed to include each variable interest entity that the Parent is required to
consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as
defined herein.


 


25









 





1.04 Rounding. Any financial ratios required to be maintained by the Consolidated Group pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).



1.06 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



ARTICLE II.THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 The Committed Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally
agrees to make loans (each such loan, a “Committed Loan”) to the Borrowers from time to
time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at
any time outstanding the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Revolving Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving
Commitment (other than as described in Section 2.04 with respect to the Swing Line Lender).
Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or LIBOR Rate Loans, as further provided herein. The Borrowers jointly and severally
promise to pay to the Administrative Agent, for the account of the Revolving Lenders, all amounts
due under the Committed Loans on the Maturity Date or such earlier date as is required hereunder.



 


26









 





2.02 Borrowings, Conversions and Continuations of Loans.



(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of LIBOR Rate Loans shall be made upon the Borrowers’ irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 1:00 p.m. (i) not less than three (3) Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of LIBOR Rate Loans or of any conversion of
LIBOR Rate Loans to Base Rate Loans, and (ii) not less than one (1) Business Day prior to the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrowers
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrowers. Each Borrowing of, conversion to or continuation of LIBOR Rate Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrowers are requesting a Committed Borrowing, any other Borrowing, a conversion of Loans from one
Type to the other or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted and (v) if applicable, the duration of the Interest Period
with respect thereto. If the Borrowers fail to specify a Type of Loan in a Loan Notice or if the
Borrowers fail to give a timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect
to the applicable LIBOR Rate Loans. If the Borrowers request a Borrowing of, conversion to, or
continuation of LIBOR Rate Loans in any such Loan Notice, but fail to specify an Interest Period,
they will be deemed to have specified an Interest Period of one (1) month.



(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Borrowers, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Committed Borrowing, each applicable Lender shall make the
amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section
4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrowers in like funds as
received by the Administrative Agent either by (i) crediting the account of the relevant Borrower
on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrowers; provided, however, that if, on the date
a Committed Loan Notice with respect to a Committed Borrowing is given by the Borrowers, there are
L/C Borrowings outstanding, then the proceeds of such Committed Borrowing first, shall be
applied, to the payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrowers as provided above.


 


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(c) Except as otherwise provided herein, a LIBOR Rate Loan may be continued or converted only
on the last day of an Interest Period for such LIBOR Rate Loan. During the existence of a Default,
no Loans may be requested as, converted to or continued as LIBOR Rate Loans without the consent of
the Required Lenders.



(d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the
interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrowers and the Lenders of any change in the Administrative Agent’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, unless the Administrative Agent otherwise
consents, there shall not be more than fifteen (15) Interest Periods in effect with respect to all
Loans.



2.03 Letters of Credit.



(a) The Letter of Credit Commitment.



(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date until the L/C
Expiration Date, to issue Letters of Credit, including IRB LOCs, for the account of any Borrower,
and to amend or extend Letters of Credit previously issued by it, in accordance with subsection
(b) below and otherwise subject to compliance with this Section 2.03, and (2) to honor
drawings properly drawn under the Letters of Credit; and (B) the Revolving Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrowers and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate
Commitments, and (y) the aggregate Outstanding Amount of the Committed Loans of any Revolving
Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment. Each request
by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrowers that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. This Agreement shall be the “Reimbursement Agreement” referred to in the IRB LOCs.
All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and conditions hereof.



 


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(ii) The L/C Issuer shall not issue any Letter of Credit, if:



(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit (other than IRB LOCs) would occur more than twelve (12) months after the date of
issuance or last extension, unless Revolving Lenders holding in excess of fifty percent
(50%) of the Aggregate Commitments have approved such expiry date; or




(B) the expiry date of such requested Letter of Credit would occur after the L/C
Expiration Date, unless all the Revolving Lenders have approved such expiry date.



(iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems material to
it;




(B) the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer applicable to letters of credit generally;




(C) such Letter of Credit is to be denominated in a currency other than Dollars; or




(D) any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory to the
L/C Issuer (in its sole discretion) with the Borrowers or such Defaulting Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.18(a)(iv)) with respect to the Defaulting Lender arising from either the
Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may
elect in its sole discretion.



(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.



(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C
Issuer would have no obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.


 


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(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters
of Credit as fully as if the term “the Administrative Agent” as used in Article IX included
the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with
respect to the L/C Issuer.



(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit; Auto-Reinstatement Letters of Credit.



(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
the Borrowers delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of
a L/C Application, appropriately completed and signed by a Responsible Officer of the Borrowers (or
through such other procedures as may otherwise be approved by the L/C Issuer and the Administrative
Agent, including electronic communications in accordance with Section 10.02(b)). Such L/C
Application (other than for IRB LOCs) must be received by the L/C Issuer and the Administrative
Agent not later than 1:00 p.m. at least two (2) Business Days (or such later date and time as the
Administrative Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the case may be, and the
timing of submission of the Letter of Credit Application with respect to an IRB LOC shall be as
determined by the L/C Issuer and the Borrowers. In the case of a request for an initial issuance
of a Letter of Credit, the related L/C Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter
of Credit; and (H) such other matters as the L/C Issuer may reasonably require. In the case of a
request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in
form and detail reasonably satisfactory to the L/C Issuer (w) the Letter of Credit to be amended;
(x) the proposed date of amendment thereof (which shall be a Business Day); (y) the nature of the
proposed amendment; and (z) such other matters as the L/C Issuer may reasonably require.
Additionally, the Borrowers shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.



(ii) Promptly after receipt of any L/C Application at the address set forth in Section
10.02 for receiving L/C Applications and related correspondence, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such L/C Application from the Borrowers and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice
from any Revolving Lender, the Administrative Agent or any Borrower, at least one (1) Business Day
prior to the requested date of issuance or amendment of the


 


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applicable Letter of Credit, that one
or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date (which, in the case of an IRB LOC, shall be a date satisfactory to the L/C
Issuer), issue a Letter of Credit for the account of the Borrowers or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of such
Revolving Lender’s Applicable Percentage times the amount of such Letter of Credit.



(iii) If the Borrowers so request in any applicable L/C Application, the L/C Issuer may, in
its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least
once in each twelve (12) month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrowers
shall not be required to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at
any time prior to an expiry date not later than the L/C Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before the day that is seven
(7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that
Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have
elected not to permit such extension or (2) from the Administrative Agent, any Revolving Lender or
the Borrowers that one or more of the applicable conditions specified in Section 4.02 is
not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.



(iv) If the Borrowers so request in any applicable L/C Application, the L/C Issuer may, in its
sole and absolute discretion, agree to issue an IRB LOC that permits the automatic reinstatement of
all or a portion of the stated amount thereof after any drawing thereunder (each, an
“Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer, the
Borrowers shall not be required to make a specific request to the L/C Issuer to permit such
reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in
the following sentence, the Revolving Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance
with the provisions of such IRB LOC. Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated
amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a
specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C
Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone
or in writing) on or before the day that is seven (7) Business Days before the Non-Reinstatement



 


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Deadline
(A) from the Administrative Agent that Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have elected not to permit such
reinstatement or (B) from the Administrative Agent, any Revolving Lender or the Borrowers that one
or more of the applicable conditions specified in Section 4.02 is not then satisfied or
that such reinstatement would violate the proviso to the first sentence of Section
2.03(a)(i) (treating such reinstatement as an L/C Credit Extension for purposes of this clause)
and, in each case, directing the L/C Issuer not to permit such reinstatement.



(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrowers and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.



(c) Drawings and Reimbursements; Funding of Participations.



(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the L/C Issuer shall notify the Borrowers and the Administrative Agent
thereof. Not later than 12:00 noon on the date of any payment by the L/C Issuer under a Letter of
Credit (or, with respect to any IRB LOC, the time set forth therein) (each such date, an “Honor
Date”), the Borrowers shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing; provided, that if any payment is made by the
L/C Issuer after 12:00 noon (or, with respect to any IRB LOC, the time set forth therein) on an
Honor Date, such reimbursement shall occur not later than 12:00 noon (or, with respect to any IRB
LOC, the time set forth therein) on the first Business Day occurring after such Honor Date. If the
Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Revolving Lender’s Applicable Percentage
thereof. In such event, the Borrowers shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than the delivery of a
Committed Loan Notice), and, subject to Section 2.03(c)(iii), the Borrowers’ failure to
have reimbursed the L/C Issuer on the Honor Date shall not be deemed a breach of this Agreement
provided that such Committed Borrowing of a Base Rate Loan is deemed to be disbursed and that the
making of such Loan is otherwise permitted by this Agreement. Any notice given by the L/C Issuer
or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.



(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent (and the Administrative Agent may apply Cash Collateral
provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office
in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds available
shall be deemed to have made a Base Rate
Committed Loan to the Borrowers in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.


 


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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest
at the Default Rate. In such event, each Revolving Lender’s payment to the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such
Revolving Lender in satisfaction of its participation obligation under this Section 2.03.



(iv) Until each Revolving Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.



(v) Each Revolving Lender’s obligation to make Committed Loans or L/C Advances to reimburse
the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the L/C Issuer, the Borrowers or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that
each Revolving Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c)
is subject to the conditions set forth in Section 4.02 (other than delivery by the
Borrowers of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Borrowers to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.



(vi) If any Revolving Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer
shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to the L/C Issuer at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the L/C issuer in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.
If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid
(other than interest and fees as aforesaid) shall constitute such Revolving Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.


 


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(d) Repayment of Participations.



(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment
in accordance with Section 2.03(c), if the Administrative Agent receives for the account of
the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrowers or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving
Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Revolving Lender’s L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.



(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is returned by
such Revolving Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Revolving Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.



(e) Obligations Absolute. The obligation of the Borrowers to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:



(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other Loan Document;



(ii) the existence of any claim, counterclaim, setoff, defense or other right any of the
Borrowers may have at any time against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer
or any other Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;



(iii) any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;


 


34









 





(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or



(v) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, any of the Borrowers.



The relevant Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with such
Borrower’s instructions or other irregularity, such Borrower will immediately notify the L/C
Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.



(f) Role of L/C Issuer. Each Revolving Lender and each of the Borrowers agree that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of Revolving Lenders holding in
excess of fifty percent (50%) of the Aggregate Commitments (or of the Total Revolving Outstandings
if the Aggregate Commitments have been terminated); (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and
remedies as they may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrowers which the Borrowers prove were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a 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.


 


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(g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrowers when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



(h) L/C Fee. The Borrowers, jointly and severally, agree to pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable Percentage a fee for each
Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn
under such Letter of Credit (the “L/C Fee”); provided, however, that any
L/C Fee otherwise payable for the account of a Defaulting Lender with respect to any Letter of
Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C
Issuer pursuant to Section 2.18(b) shall be payable, to the maximum extent permitted by
applicable Law, to the other Lenders in accordance with the upward adjustments in their respective
Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.18(a)(iv),
with the balance of such fee, if any, payable to the L/C Issuer for its own account. For purposes
of computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. The L/C Fee shall be
(i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of Revolving
Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments (or of the Total
Revolving Outstandings if the Aggregate Commitments have been terminated), while any Event of
Default exists, the L/C Fee shall accrue at the Default Rate.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrowers, jointly and severally, agree to pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit equal to a rate of 0.125% per annum times the
daily amount available to be drawn under such Letter of Credit (the “Fronting Fee”). The
Fronting Fee shall be (i) computed on a quarterly basis in arrears, and (ii) due and payable on the
first Business Day after the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date
and thereafter on demand. In addition, unless otherwise agreed with the L/C Issuer, the Borrowers
shall pay directly to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.



(j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Documents, the terms hereof shall control.


 


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(k) Action Taken by Revolving Lenders. Subject to the last sentence of the second
proviso to Section 10.01 and notwithstanding anything to the contrary set forth in this
Section 2.03, the Revolving Commitments of, or the portion of the Total Revolving
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of
determining the percentage of Revolving Lenders taking or approving any action under this
Section 2.03 and such matters shall be determined as though such Defaulting Lenders’
Revolving Commitments and portion of the Total Revolving Outstandings held by such Defaulting
Lenders did not exist.



2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in
this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the
Borrowers from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Revolving Lender acting as Swing
Line Lender, may exceed the amount of such Revolving Lender’s Revolving Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Revolving Lender (other than the Swing Line
Lender), plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment (other
than that of the Swing Line Lender as set forth above); and provided, further, that
the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing
Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be deemed a Base Rate Loan
notwithstanding anything to the contrary in Section 2.08(a)(iii) regarding the interest
rate applicable to such Swing Line Loan. Immediately upon the making of a Swing Line Loan, each
Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Revolving Lender’s Applicable Percentage times the amount of such Swing Line Loan.
Notwithstanding anything to the contrary contained herein, a Swing Line Loan may not be converted
to a LIBOR Rate Loan. The Borrowers jointly and severally promise to pay to the Swing Line Lender
all amounts due under the Swing Line Loans in accordance with Section 2.07(b) or such
earlier date as required hereunder.



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrowers’
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 2:30 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be not less than $500,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing


 


37









 






Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrowers. Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if
not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Revolving Lender) prior to 3:30 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence
of Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrowers at their office by
crediting the account of the Borrowers on the books of the Swing Line Lender in immediately
available funds.



(c) Refinancing of Swing Line Loans.



(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrowers (which hereby irrevocably authorize the Swing Line Lender to so request on
their behalf), that each Revolving Lender make a Base Rate Committed Loan in an amount equal to
such Revolving Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Borrowers with a copy of
the applicable Committed Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount
specified in such Committed Loan Notice available to the Administrative Agent in immediately
available funds (and the Administrative Agent may apply Cash Collateral available with respect to
the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the Borrowers in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.



(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing
in accordance with Section 2.04(c)(i), the request for Committed Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each
Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.


 


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(iii) If any Revolving Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such
Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the
time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover
from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender
pays such amount (with interest and fees as aforesaid), the amount so paid (other than interest and
fees as aforesaid) shall constitute such Revolving Lender’s Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line Lender submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.



(iv) Each Revolving Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Lender may have against the
Swing Line Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving Lender’s
obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).
No such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrowers to repay Swing Line Loans, together with interest as provided herein.



(d) Repayment of Participations.



(i) At any time after any Revolving Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Revolving Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.



(ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.05 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Revolving Lender shall pay to the Swing Line
Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Revolving Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


39









 





(e) Interest for Account of the Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Revolving
Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to
refinance such Revolving Lender’s Applicable Percentage of any Swing Line Loan, interest in respect
of its Applicable Percentage shall be solely for the account of the Swing Line Lender.



(f) Payments Directly to the Swing Line Lender. The Borrowers shall make all payments
of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



2.05
Prepayments.



(a) The Borrowers may, upon notice to the Administrative Agent, at any time or from time to
time, voluntarily prepay the Committed Loans in whole or in part without premium or penalty;
provided that in the case of LIBOR Rate Loans (A) such notice must be received by the
Administrative Agent not later than 1:00 p.m. three (3) Business Days prior to the date of
prepayment and (B) any such prepayment shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then
outstanding, and in the case of Base Rate Loans (C) such notice must be received by the
Administrative Agent not later than 1:00 p.m. on the date of prepayment and (D) any such prepayment
shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or,
if less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment, whether the Loan to be prepaid is a Committed Loan (or other
Borrowing, if applicable), the Type(s) of Loans to be prepaid and if LIBOR Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of
such prepayment (based on such Lender’s Applicable Percentage). If such notice is given, the
Borrowers shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a LIBOR Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Subject to Section 2.18, each such prepayment
shall be applied to the Loans of the Lenders in accordance with their Applicable Percentages.



(b) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given, the Borrowers shall
make such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein.


 


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(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrowers shall immediately prepay Committed
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrowers shall not be required to Cash
Collateralize the L/C Obligations pursuant to this clause (c) unless after the prepayment
in full of the Loans, the Total Revolving Outstandings exceed the Aggregate Commitments then in
effect.



2.06 Termination or Reduction of the Aggregate Commitments. The Borrowers may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later than 1:00 p.m.
three (3) Business Days prior to the date of termination or reduction (except that if no Loans are
outstanding hereunder and no Letters of Credit are issued and outstanding hereunder or the
effectiveness of a new credit facility for the Borrowers is conditions on the termination of this
Agreement, any notice termination the Aggregate Commitments may be received on the date of
termination), (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Outstandings would exceed the Aggregate Commitments;
provided that the Borrowers may terminate the Aggregate Commitments if all Loans have been
paid in full, the Borrowers have Cash Collateralized, or provided other support acceptable to the
L/C Issuer for, all outstanding Letters of Credit, and there are no outstanding L/C Borrowings, and
(iv) if, after giving effect to any reduction of the Aggregate Commitments, the Swing Line Sublimit
exceeds the amount of the Aggregate Commitments, the Swing Line Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Revolving
Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction
of the Aggregate Commitments shall be applied to the Revolving Commitment of each Revolving Lender
according to its Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans.



(a) Committed Loans. The Borrowers shall repay to the Revolving Lenders on the
Maturity Date the aggregate principal amount of all Committed Loans outstanding on such date.



(b) Swing Line Loans. The Borrowers shall repay to the Swing Line Lender each Swing
Line Loan on the earlier to occur of (i) the date ten (10) Business Days after such Swing Line Loan
is made and (ii) on the Maturity Date.



2.08 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each LIBOR Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the LIBOR Rate for such Interest Period plus the Applicable Rate for LIBOR
Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the


outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate for Base Rate Loans or such other rate as
may be agreed to from time to time by the Borrowers and the Swing Line Lender; provided
that after any purchase by the Lenders of a participation in any Swing Line Loan, the rate of
interest on such Swing Line Loan shall not be less than the Base Rate plus the Applicable
Rate for Base Rate Loans.



 


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(b)



(i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration (including automatic
acceleration) or otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.



(ii) If any amount (other than principal of any Loan) payable by the Borrowers under any Loan
Document is not paid when due (including any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.



(iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Loans and all other
Obligations that are then due and payable at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.



(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.



(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



2.09 Fees. In addition to certain fees described in subsections (h) and (i) of
Section 2.03:



(a) Commitment Fee. The Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Revolving Lender in accordance with its Applicable
Percentage, a commitment fee (the “Commitment Fee”) equal to the Applicable Rate for the
Commitment Fee times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.18. The Commitment Fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the first Business Day after the


 


42









 






end of
each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the
Maturity Date or any earlier date on which the Revolving Commitments shall terminate. The
Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. For purposes of computing the Commitment Fee, Swing Line Loans shall not be counted
towards or considered usage of the Aggregate Commitments.



(b) Other Fees. The Borrowers, jointly and severally, shall pay to each Arranger and
the Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.



2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrowers or for any other reason, the Borrowers or the Lenders determine that (i) the Leverage
Ratio as calculated by the Borrowers as of any applicable date was inaccurate and (ii) a proper
calculation of the Leverage Ratio would have resulted in higher pricing for such period, the
Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent for
the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by
the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to any Borrower under the Bankruptcy Code, automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The Borrowers’
obligations under this paragraph shall survive the termination of the Aggregate Commitments and the
repayment of all Obligations hereunder.



 


43









 






2.11
Evidence of Debt.




(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Revolving Commitment or the portion of any term loan advanced
hereunder by such Lender, as applicable, in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.



(b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



2.12
Payments Generally; the Administrative Agent’s Clawback.



(a) General. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 12:00 noon shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrowers
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



 


44









 





(b)



(i) Funding by the Lenders; Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing of LIBOR Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with Section
2.02 or Section 2.14, as applicable (or, in the case of a Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required by
Section 2.02) and may, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and including the date such
amount is made available to the Borrowers to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing and (B) in the
case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If
the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of
such interest paid by the Borrowers for such period. Any payment by the Borrowers shall be without
prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such
payment to the Administrative Agent.



(ii) Payments by the Borrowers; Presumptions by the Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrowers prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that
the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the appropriate Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrowers have not in fact made such payment, then each of the
appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C
Issuer, in immediately available funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.



A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest error.



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrowers by
the Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative
Agent shall return such funds (in like funds as received from such Lender) to such Lender,
without interest.


 


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(d) Obligations of the Lenders Several. The obligations of the Lenders hereunder to
make the Committed Loans and any other Loan advanced hereunder from time to time, to fund
participations in Letters of Credit and Swing Line Loans and to make payments under Section
10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any
such participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, as the
case may be, purchase its participation or to make its payment under Section 10.04(c).



(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



(f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.



2.13 Sharing of Payments.





(a) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it, resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:



(i) if any such participations or subparticipations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and


 


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(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by
or on behalf of the Borrowers pursuant to and in accordance with the express
terms of this Agreement (including, but not limited to, the application of funds arising from
the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in
Section 2.17, (C) any payment obtained by a Lender as consideration for the assignment of
or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, or (D) any payment of consideration for executing any
amendment, waiver or consent in connection with this Agreement so long as such consideration has
been offered to all consenting Lenders.



Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.



2.14 Accordion Advances (Increases and Replacements of the Aggregate Commitments and New Term
Loans).



(a) Request for Accordion Advance. Provided there exists no Default or Event of
Default, upon notice to the Administrative Agent (which shall thereafter promptly notify the
Lenders as set forth in this Section), and subject to the terms of this Section 2.14, the
Borrowers may from time to time, without obtaining further consent from the Lenders, request (i) an
increase in or replacement of the Aggregate Commitments (which increase or replacement and the
proceeds of any Committed Loans to be advanced thereunder may be used, in whole or in part, to
prepay any Loans then outstanding in accordance with the terms hereof), and (ii) one or more term
loans (which term loan may be in the form of a new term loan or an increase to any other term loan
advanced hereunder from time to time and then outstanding), the proceeds of which may be used, in
whole or in part, to prepay any Loans then outstanding in accordance with the terms hereof (any
such term loan or increase in or replacement of the Aggregate Commitments, an “Accordion
Advance”); provided that the aggregate amounts so requested under clauses (i)
and (ii) above after the date hereof (excluding any such amounts to the extent concurrently
used to prepay term loans or replace Aggregate Commitments) shall not exceed $300,000,000; and
provided, further, that, after giving effect to any such Accordion Advance, the
Total Facility Amount shall not at any time exceed $1,500,000,000 in the aggregate (minus
any and all permanent reductions of the Aggregate Commitments previously effected by the Borrowers
pursuant to Section 2.06 or prepayments of any term loan advanced hereunder from time to
time and then outstanding (other than in connection with a prior term loan or replacement of the
Aggregate Commitments under this Section 2.14(a))). In no event shall any existing Lender
be required to increase its Revolving Commitment or fund any portion of any Accordion Advance.



Any Accordion Advance will be subject to pricing and fees based on the then-current market for
borrowers with similar credit profiles and ratings as mutually agreed to by the Borrowers, the
Administrative Agent and the Lenders providing commitments for such Accordion Advance, as set forth
in any applicable Conforming Amendment (defined below) or related fee letters.




 


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(b) Loan Terms and Conditions. To the extent that a new term loan or a replacement of
the Aggregate Commitments is requested pursuant to the terms of this Agreement (any such new term
loan or replacement of the Aggregate Commitments, an “Accordion Tranche”), such Accordion
Tranche shall, in addition to compliance with the other applicable terms of this Section
2.14, be subject to additional customary terms and conditions as are agreed among the
Borrowers, the Administrative Agent and the Lenders participating in such Accordion Tranche, in any
event including the following:



(i) Evidence of Indebtedness; Loan Accounts. Each Lender participating in such
Accordion Tranche shall maintain, in accordance with its usual practice, an account or accounts
evidencing indebtedness of the Borrowers to such Lender resulting from such Lender’s share of such
Accordion Tranche from time to time, including the amounts of principal, interest or fees payable
and paid to such Lender from time to time under this Agreement. The Administrative Agent shall
maintain accounts (including the Register) in which it shall record (A) the amount of such
Accordion Tranche, the amount of any Loans advanced thereunder and each Interest Period applicable
thereto, (B) the amount of any principal, interest or fees due and payable or to become due and
payable from the Borrowers to each Lender participating in such Accordion Tranche, and (C) both the
amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and
each Lender’s share thereof (if any). The entries made in the accounts maintained by each Lender
participating in such Accordion Tranche pursuant to this Section 2.14 shall be conclusive
absent manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain any such accounts or note record, or any error therein, shall not
in any manner affect the obligation of the Borrowers to repay (with applicable interest) any Loans
advanced under such or the applicable Accordion Tranche made in accordance with the terms of this
Agreement. If requested by any Lender participating in such Accordion Tranche, the Borrowers shall
execute a promissory note with respect to such Lender’s portion of such Accordion Tranche.



(ii) Interest on any Accordion Tranche. After such Accordion Tranche has been
created, (x) the provisions of Section 2.02 hereof shall apply mutatis mutandis
with respect to all or any portion of any Loans advanced under such Accordion Tranche so that, to
the extent applicable, the Borrowers may have the same interest rate options with respect to all or
any portion of the Loans advanced under such Accordion Tranche as they would be entitled to with
respect to the Loans then outstanding, and (y) the provisions of Article III of this
Agreement shall also apply to Loans advanced under such Accordion Tranche.



(iii) Pari Passu Treatment of any Accordion Tranche. Any Loans advanced under any
Accordion Tranche created hereunder (A) shall rank pari passu in right of payment
and of security (if any) with all other Loans and (B) shall be governed by and subject to all of
the provisions, terms and conditions set forth in this Agreement and the other Loan Documents in
every respect as though such Loan was an original “Loan” (and in the case of a replacement of the
Aggregate Commitments, an original “Committed Loan”) referred to herein and will constitute an
Obligation of the Borrowers hereunder.


 


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(c) Acceding Lenders. Subject to the approval of the Administrative Agent (and the
L/C Issuer and the Swing Line Lender only with respect to an increase in the Aggregate
Commitments), which approvals shall not be unreasonably withheld, the Borrowers may invite
any Lender and/or one or more other commercial banks, other financial institutions or other
Persons (in each case, an “Acceding Lender”) to become party to this Agreement as a Lender.
Such Acceding Lender shall become a Lender hereunder by entering into an instrument of accession
in substantially the form of Exhibit E hereto (an “Instrument of Accession”) with
the Borrowers and the Administrative Agent and assuming thereunder the rights and obligations (as
the case may be) of a Revolving Lender hereunder, including, without limitation, commitments to
make Committed Loans and participate in the risk relating to Letters of Credit and Swing Line Loans
and/or the obligation to fund a portion of a new term loan subject to the terms of this Section,
and the Aggregate Commitments and/or the new term loan (as the case may be) shall be funded by the
amount of such Acceding Lender’s interest all in accordance with the provisions of this Section.



(d) Reallocation. The Borrowers shall indemnify the Lenders and the Administrative
Agent for any cost or expense incurred as a consequence of the reallocation of any LIBOR Rate Loans
to an Acceding Lender pursuant to the provisions of Section 3.05 hereof.



(e) Effective Date and Allocations. Upon a request by the Borrowers for an Accordion
Advance in accordance with this Section, the Administrative Agent and the Borrowers shall
determine, as applicable, the effective date of any such Accordion Advance (any such date, the
“Accordion Funding Date”) and the final allocation of any such Accordion Advance. The
Administrative Agent shall promptly notify the Borrowers and the Lenders and Acceding Lenders, if
any, of the final allocation of such Accordion Advance. On any Accordion Funding Date,
Schedule 2.01 hereto shall be amended to reflect, as the case may be, (x) the name,
address, and, as the case may be, the Revolving Commitment of the Lenders and/or the amount of the
portion of the new term loan advanced or to be advanced by each term Lender (and, if applicable,
any Acceding Lender), (y) the amount of the Aggregate Commitments and/or any new term loan (after
giving effect to any Accordion Advance), and (z) the changes to the respective Applicable
Percentages of the Lenders (after giving effect to any Accordion Advance).



(f) Conforming Amendment. To the extent that conforming changes (including
incorporating the Accordion Advances and payment and pricing provisions applicable thereto) to this
Agreement must be made to effect an Accordion Advance in accordance with this Section, the
Administrative Agent and the Borrowers may enter into an amendment (a “Conforming
Amendment”) effecting such changes. Any such Conforming Amendment shall not require the
consent of any Person other than the participating Lenders or Acceding Lenders, as applicable, the
Borrowers and the Administrative Agent so long as such Conforming Amendment does not provide for
new or amended covenants or events of default applicable to any Accordion Advance;
provided, that upon the execution of any Conforming Amendment, the Administrative Agent
shall distribute a copy thereof to all of the Lenders. If such Conforming Amendment provides for
new or amended covenants or events of default applicable to any Accordion Advance, the provisions
of such Conforming Amendment giving effect to such new or amended covenants or events of default
shall be subject to the consent of the Required Lenders (in accordance with Section 10.01)
calculated without to giving effect to the applicable Accordion Advance.


 


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(g) Conditions to Effectiveness of any Accordion Advance. As a condition precedent to
any such Accordion Advance under this Section 2.14, the Borrowers shall deliver to the
Administrative Agent (i) upon the request of any Lender, a Note (or an allonge to such Lender’s
existing Note) evidencing such Lender’s portion of any Accordion Advance, (ii) evidence of
applicable corporate authorization and other corporate documentation from the Borrowers and the
legal opinion of counsel to the Borrowers, each in form and substance reasonably satisfactory to
the Administrative Agent and such Lenders as are participating in such Accordion Advance, (iii) a
certificate, dated as of any Accordion Funding Date, signed by a Responsible Officer of the Parent
certifying that, before and after giving effect to such Accordion Advance, the applicable
conditions set forth in Section 4.02 will be satisfied, (iv) a pro forma Compliance
Certificate reflecting compliance with Section 7.14 (using Consolidated EBITDA of the
Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including
any addbacks to Consolidated EBITDA previously approved in the period following the last day of the
applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and
after giving effect to, such Accordion Advance (with such amounts adjusted as if such Accordion
Advance occurred on the first day of the applicable Pro Forma Reference Period)), (v) to the extent
applicable, executed counterparts to a Conforming Amendment, and (vi) payment of (A) all of the
Administrative Agent’s reasonable legal fees and expenses incurred in connection with such
Accordion Advance and (B) the fees set forth in any applicable fee letter. In addition, the
Borrowers shall, after taking into account the application of any Accordion Advance, if applicable,
prepay any Committed Loans outstanding on any Accordion Funding Date (and pay any additional
amounts required under Article III of this Agreement) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable Percentages in respect of Committed
Loans arising from any nonratable increase in the Aggregate Commitments.



(h) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.




2.15 Joint and Several Liability of the Borrowers.



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



(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other
the Borrowers with respect to the payment and performance of all of the Obligations of the
Borrowers (including, without limitation, any Obligations arising under this Section 2.15),
it being the intention of the parties hereto that all of the Obligations shall be the joint and
several obligations of each of the Borrowers without preferences or distinction among them.


 


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



(d) The Obligations of each of the Borrowers under the provisions of this Section 2.15
constitute full recourse obligations of each of such the Borrowers enforceable against each such
Borrower to the full extent of its properties and assets.



(e) Except as otherwise expressly provided in this Agreement, each of the Borrowers, to the
fullest extent permitted by applicable law, hereby waives notice of acceptance of its joint and
several liability, notice of any Loans or other extensions of credit made under this Agreement,
notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under
or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law,
all demands, notices (other than those required pursuant to the terms of this Agreement or the Loan
Documents) and other formalities of every kind in connection with this Agreement. Each Borrower,
to the fullest extent permitted by applicable law, hereby waives all defenses which may be
available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshaling of assets of the Borrowers and any other entity or
Person primarily or secondarily liable with respect to any of the Obligations and all suretyship
defenses generally. Each of the Borrowers, to the fullest extent permitted by applicable law,
hereby assents to, and waives notice of, any extension or postponement of the time for the payment
of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance
of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders
at any time or times in respect of any default by any of the Borrowers in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times, of any security for
any of the Obligations or the addition, substitution or release, in whole or in part, of any of the
Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any
other action or delay in acting or failure to act on the part of the Lenders with respect to the
failure by any of the Borrowers to comply with any of its respective Obligations including, without
limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to
comply fully with applicable laws or regulations thereunder, which might, but for the provisions of
this Section 2.15, afford grounds for terminating, discharging or relieving any Borrower,
in whole or in part, from any of its Obligations under this Section 2.15, it being the
intention of each of the Borrowers that, so long as any of the Obligations hereunder remain
unsatisfied, the Obligations of such the Borrowers under this Section 2.15 shall not be
discharged except by performance and then only to the extent of such performance. The Obligations
of each of the Borrowers under this Section 2.15 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or
similar proceeding with respect to any of the Borrowers, the Administrative Agent or the Lenders.
The joint and several liability of the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any of the Borrowers, the Administrative Agent or
the Lenders.


 


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(f) To the extent any Borrower makes a payment hereunder in excess of the aggregate amount of
the benefit received by such Borrower in respect of the extensions of credit under this Agreement
(the “Benefit Amount”), then such Borrower, after the payment in full in cash, of all of
the Obligations, shall be entitled to recover from each other
Borrower such excess payment, pro
rata, in accordance with the ratio of the Benefit Amount received by each such other Borrower to
the total Benefit Amount received by all the Borrowers, and the right to such recovery shall be
deemed to be an asset and property of such Borrower so funding; provided, that each of the
Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation
against the other the Borrowers with respect to any liability incurred by it hereunder or under any
of the other Loan Documents, any payments made by it to any of the Lenders or the Administrative
Agent with respect to any of the Obligations or any collateral security therefor until such time as
all of the Obligations have been irrevocably paid in full in cash, the Aggregate Commitments have
been terminated and no Letters of Credit remain outstanding. Any claim which any Borrower may have
against any other Borrower with respect to any payments to the Lenders or the Administrative Agent
hereunder or under any other Loan Document are hereby expressly made subordinate and junior in
right of payment, without limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of
any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or
involuntary, all such Obligations shall be paid in full before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to any other Borrower
therefor.



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



(h) The provisions of this Section 2.15 are made for the benefit of the Administrative
Agent and the Lenders and their successors and assigns, and may be enforced in good faith by them
from time to time against any or all of the Borrowers as often as the occasion therefor may arise
and without requirement on the part of the Administrative Agent or the Lenders first to marshal any
of their claims or to exercise any of their rights against any other Borrower or to exhaust any
remedies available to them against any other Borrower or to resort to any other source or means of
obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions
of this Section 2.15 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made
in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the
Administrative Agent or the Lenders upon the insolvency, bankruptcy or
reorganization of any of the Borrowers or is repaid in good faith settlement of a pending or
threatened avoidance claim, or otherwise, the provisions of this Section 2.15 will
forthwith be reinstated in effect, as though such payment had not been made.


 


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



(j) Notwithstanding anything contained herein, the obligations of each Borrower under this
Section 2.15 at any time shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of the Bankruptcy Code or any other Debt Relief Laws.



2.16 Designation of Parent as the Agent for the Borrowers. For purposes of this Agreement,
each of the Borrowers hereby designates the Parent as its
agent and representative for all purposes hereunder (including with respect to any notices,
demands, communications or requests under this Agreement or the other Loan Documents) and the
Parent hereby accepts each such appointment. The Administrative Agent and each Lender may regard
any notice or other communication pursuant to any Loan Document from the Parent as a notice or
communication from all the Borrowers, and may give any notice or communication required or
permitted to be given to any Borrower or the Borrowers hereunder to the Parent on behalf of such
Borrower or the Borrowers. Each Borrower agrees that each notice, election, representation and
warranty, covenant, agreement and undertaking made on its behalf by the Parent shall be deemed for
all purposes to have been made by such Borrower and shall be binding upon and enforceable against
such Borrower to the same extent as if the same had been made directly by such Borrower.


 


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2.17 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers
shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request
of the Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrowers shall deliver
to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure
(after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by the
Defaulting Lender).



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrowers, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.17(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure (after giving effect to Section 2.18(a)(iv)) and other obligations
secured thereby (as identified at the time such Cash Collateral is provided), the Borrower or the
relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide
to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.17 or Sections
2.03, 2.04, 2.05, 2.18 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations (as
identified at the time of the provision thereof) for which the Cash Collateral was so provided,
prior to any other application of such property as may be provided for herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Borrower shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.17 may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuer or the Swing Line Lender, as applicable, may
agree that Cash Collateral shall not be released but instead held to support future anticipated
Fronting Exposure or other obligations.


 


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2.18 Defaulting Lenders.



(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:



(i) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
Section 10.01.



(ii) Reallocation of Payments. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including
any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to
Section 10.08), shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any
amounts owing by that Defaulting Lender to the L/C Issuer or the Swing Line Lender hereunder;
third, if so determined by the Administrative Agent or requested by the L/C Issuer or the Swing
Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender
of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrowers may
request (so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which that Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative
Agent and the Borrowers, to be held in a non-interest bearing deposit account and released in order
to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the L/C Issuer or the Swing Line Lender as a result of
any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the
Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of
its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to
the payment of any amounts owing to the Borrowers as a result of any judgment of a court of
competent jurisdiction obtained by the Borrowers against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of
which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C
Borrowings were made at a time when the conditions set forth in Section 4.02 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to,
all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans
of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be
deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents
hereto.


 


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(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any
Commitment Fee pursuant to Section 2.09(a) for any period during which that Lender is a
Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise
would have been required to have been paid to that Defaulting Lender), and (y) shall be limited in
its right to receive L/C Fees as provided in Section 2.03(h).



(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any
period in which there is a Defaulting Lender, for purposes of computing the amount of the
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of
Credit or Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable
Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment
of that Defaulting Lender; provided, that, (i) each such reallocation shall be given effect
only to the extent that, at the date the applicable Lender becomes a Defaulting Lender, no Default
or Event of Default exists; and (ii) the aggregate obligation of each non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not
exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting
Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.



(b) Defaulting Lender Cure. If the Borrowers, the Administrative Agent, the Swing
Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Committed Loans of
the other Revolving Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Committed Loans and funded and unfunded participations in Letters of
Credit and Swing Line Loans to be held on a pro rata basis by the Revolving Lenders in accordance
with their Applicable Percentages (without giving effect to Section 2.18(a)(iv)), whereupon
that Lender will cease to be a Defaulting Lender; provided, that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers
while that Lender was a Defaulting Lender; and provided, further, that except to
the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Revolving Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.



ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY



3.01 Taxes.



(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrowers hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrowers
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrowers or the Administrative Agent, as the
case may be, upon the basis of the information and documentation to be delivered pursuant to
clause (e) below.


 


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(ii) If the Borrowers or the Administrative Agent shall be required by the Code to withhold or
deduct any Taxes, including both United States Federal backup withholding and withholding taxes,
from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are
determined by the Administrative Agent to be required based upon the information and documentation
it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely
pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with
the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified
Taxes or Other Taxes, the sum payable by the Borrowers shall be increased as necessary so that
after any required withholding or the making of all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C
Issuer, as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.



(b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
subsection (a) above, the Borrowers shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.




(c) Tax Indemnifications.



(i) Without limiting the provisions of clause (a) or (b) above, the Borrowers
shall, and do hereby, jointly and severally, indemnify the Administrative Agent, each Lender and
the L/C Issuer, and shall make payment in respect thereof within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
withheld or deducted by the Borrowers or the Administrative Agent or paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided, however, that the Borrowers shall not be obligated to make
payment to the Administrative Agent, any Lender or the L/C Issuer, as the case may be, pursuant to
this Section 3.01 in respect of penalties, interest and other similar liabilities
attributable to any Indemnified Taxes or Other Taxes if (A) written demand therefor has not been
made by the Administrative Agent, such Lender or the L/C Issuer within one hundred eighty (180)
days after the date on which the Administrative Agent, such Lender or the L/C Issuer received
written notice of the imposition of Indemnified Taxes or Other Taxes by the relevant Governmental
Authority, but only to the extent such penalties, interest and other similar liabilities are
attributable to such failure or delay by the Administrative Agent, such Lender or the L/C Issuer in
making such written demand, or (B) such penalties, interest and other similar liabilities are
attributable to the gross negligence or willful misconduct of the Administrative Agent, such Lender
or the L/C Issuer or its Affiliates. The Borrowers shall also, and do hereby, jointly and
severally, indemnify the Administrative Agent, and shall make payment in respect thereof within ten
(10) days after demand therefor, for any amount which a Lender or the L/C Issuer (that is not the
Administrative Agent or an Affiliate of the Administrative Agent) for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to the Borrowers by a
Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.


 


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(ii) Without limiting the provisions of subsection (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify the Borrowers and the Administrative
Agent, and shall make payment in respect thereof within ten (10) days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest
and expenses (including the fees, charges and disbursements of any counsel for the Borrowers or the
Administrative Agent) incurred by or asserted against the Borrowers or the Administrative Agent by
any Governmental Authority as a result of the failure by such Lender or the L/C Issuer, as the case
may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any
documentation required to be delivered by such Lender or the L/C Issuer, as the case may be, to the
Borrowers or the Administrative Agent pursuant to subsection (e). Each Lender and the L/C
Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other
Loan Document against any amount due to the Administrative Agent under this clause (ii).
The agreements in this clause (ii) shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C
Issuer, the termination of the Aggregate Commitments and other Loans advanced hereunder from time
to time and the repayment, satisfaction or discharge of all other Obligations.



(d) Evidence of Payments. Upon request by the Borrowers or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrowers or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrowers shall each make
reasonable efforts to obtain and deliver to the Administrative Agent or the Administrative Agent
shall make reasonable efforts to obtain and deliver to the Borrowers, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrowers or the Administrative Agent, as the case may be.



(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrowers and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrowers or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the
Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for withholding
tax purposes in the applicable jurisdiction, and (D) whether or not any Lender is subject to
information reporting requirements.



 


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(ii) Without limiting the generality of the foregoing, if any of the Borrowers is resident for
tax purposes in the United States,



(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrowers and the Administrative Agent on or
prior to the date on which such Lender becomes a Lender under this Agreement (and from time
to time thereafter as prescribed by applicable Law or upon the request of the Borrowers or
the Administrative Agent) executed originals of Internal Revenue Service Form W-9 (or any
successor form) or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrowers or the Administrative Agent as will enable the
Borrowers or the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and




(B) each Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments hereunder or under
any other Loan Document shall deliver to the Borrowers and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
as prescribed by applicable Law or upon the request of the Borrowers or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:




(I) executed originals of Internal Revenue Service Form W-8BEN (or any
successor form) claiming eligibility for benefits of an income tax treaty to which
the United States is a party,




(II) executed originals of Internal Revenue Service Form W-8ECI (or any
successor form),




(III) executed originals of Internal Revenue Service Form W-8IMY (or any
successor form) and all required supporting documentation,




(IV) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) executed
originals of Internal Revenue Service Form W-8BEN (or any successor form), or




(V) executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be prescribed
by applicable Laws to permit the Borrowers or the Administrative Agent to determine
the withholding or deduction required to be made.


 


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(iii) Each Lender shall promptly (A) notify the Borrowers and the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed exemption or reduction,
and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that any Borrower
or the Administrative Agent make any withholding or deduction for Taxes from amounts payable to
such Lender.



(iv) In addition, each Foreign Lender agrees to comply with the requirements of Sections 1471
through 1474 of the Code (and any official pronouncements thereunder) to the extent necessary to
avoid the imposition of any withholding tax on amounts payable pursuant to this Agreement under
such Sections of the Code.



(f) Treatment of Certain Refunds and Credits. Unless required by applicable Laws, at
no time shall the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or
the L/C Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C Issuer
determines, in its sole discretion, that it has received a refund or credit of any Taxes or Other
Taxes (each, a “Tax Benefit”) as to which it has been indemnified by the Borrowers or with
respect to which the Borrowers have paid additional amounts pursuant to this Section, it shall pay
to the Borrowers an amount equal to such Tax Benefit (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrowers under this Section with respect to the Taxes or
Other Taxes giving rise to such Tax Benefit), net of all reasonable out-of-pocket expenses incurred
by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrowers, upon the request of the Administrative Agent, such
Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrowers (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer within a reasonable time after receipt of written notice that the
Administrative Agent, such Lender or the L/C Issuer is required to repay such Tax Benefit to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrowers or any other Person.



3.02 Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Loans whose interest is determined by reference to the LIBOR Rate,
or to determine or charge interest rates based upon the LIBOR Rate, or any Governmental Authority
has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the
Borrowers through the Administrative Agent, (i) any obligation of such Lender to make or continue
LIBOR Rate Loans or to convert Base Rate Loans to LIBOR Rate Loans shall


 


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be suspended, and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the LIBOR Rate
component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the LIBOR Rate component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrowers that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender
(with a copy to the Administrative Agent), at the Borrowers’ option, prepay or, if applicable,
convert all LIBOR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base
Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the LIBOR Rate component of the Base Rate), either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain
such LIBOR Rate Loans and (y) if such notice asserts the illegality of such Lender determining or
charging interest rates based upon the LIBOR Rate, the Administrative Agent shall during the period
of such suspension compute the Base Rate applicable to such Lender without reference to the LIBOR
Rate component thereof until the Administrative is advised in writing by such Lender that it is no
longer illegal for such Lender to determine or charge interest rates based upon the LIBOR Rate.
Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount
so prepaid or converted.



3.03 Inability to Determine Rates. If the Administrative Agent determines in connection with any request for a LIBOR Rate Loan
or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks
in the London interbank LIBOR market for the applicable amount and Interest Period of such LIBOR
Rate Loan, (b) adequate and reasonable means do not exist for determining the LIBOR Rate for any
requested Interest Period with respect to a proposed LIBOR Rate Loan or in connection with an
existing or proposed Base Rate Loan, or (c) the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrowers and
each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Rate Loans
shall be suspended, and (y) in the event of a determination described in the preceding sentence
with respect to the LIBOR Rate component of the Base Rate, the utilization of the LIBOR Rate
component in determining the Base Rate shall be suspended, in each case until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or
continuation of LIBOR Rate Loans or, failing that, will be deemed to have converted such request
into a request for a Borrowing of Base Rate Loans in the amount specified therein.




3.04 Increased Costs; Reserves on LIBOR Rate Loans.




(a) Increased Costs Generally. If any Change in Law shall:



(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e)) or the L/C Issuer;


 


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(ii) subject any Lender or the L/C Issuer to any Tax with respect to this Agreement, any
Letter of Credit, any participation in a Letter of Credit or any LIBOR Rate Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or



(iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender or any
Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.



(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Revolving Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a
level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company
with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or
the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such
reduction suffered.



(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this
Section, together with a brief explanation for the increased costs and the basis for the
calculation thereof, and delivered to the Borrowers shall be conclusive absent manifest error. The
Borrowers shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on
any such certificate within ten (10) days after receipt thereof.


 


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(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than 180 days prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period
referred to above shall be extended to include the period of retroactive effect thereof).



(e) Reserves on LIBOR Rate Loans. The Borrowers shall pay to each Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each LIBOR Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable on each date on
which interest is payable on such Loan, provided the Borrowers shall have received at least ten
(10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest from
such Lender. If a Lender fails to give notice ten (10) days’ prior to the relevant Interest
Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such
notice.




3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrowers shall promptly compensate such Lender (except, in the case of Section 3.05(c),
any Defaulting Lender) for and hold such Lender (except, in the case of Section 3.05(c),
any Defaulting Lender) harmless from any loss, cost or expense incurred by it as a result of:



(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



(b) any failure by the Borrowers (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrowers; or



(c) any assignment of a LIBOR Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrowers pursuant to Section 10.13;



including any cost or expense arising from the liquidation, or redeployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrowers shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing. For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Rate
Loan made by it at the LIBOR Rate used in determining the LIBOR Rate for
such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such LIBOR Rate Loan was in fact so
funded.


 


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3.06 Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrowers are required to pay any additional amount to any
Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section
3.02, then such Lender or the L/C Issuer, as applicable, shall use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C
Issuer, as the case may be. The Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrowers are required to pay any additional amount pursuant to Section
3.01 to the Administrative Agent, any Lender or any Governmental Authority for the account of
any Lender, or if the Borrowers receive a notice from a Lender pursuant to Section 3.02,
the Borrowers may replace such Lender in accordance with Section 10.13.



3.07 Survival. All of the Borrowers’ obligations under this Article III shall survive termination
of the Aggregate Commitments and other Loans advanced hereunder from time to time and the repayment
of all other Obligations hereunder, only if such Obligations accrue prior to the termination of
this Agreement and the repayment in full in cash of all Obligations outstanding hereunder and the
resignation of the Administrative Agent.



ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS



4.01 Conditions of Initial Credit Extension and Amendment and Restatement. The obligation of
the L/C Issuer and each Lender to make its initial Credit Extension
hereunder, and the effectiveness of this Agreement as an amendment and restatement of the Existing
Credit Agreement, are subject to satisfaction of the following conditions precedent:



(a) the Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Borrower, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each
in form and substance satisfactory to the Administrative Agent and each of the Lenders unless
otherwise specified:




(i) counterparts of this Agreement, sufficient in number for distribution to the
Administrative Agent, each Lender and the Parent;



 


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(ii) a Note in favor of each Lender requesting a Note;



(iii) for each Borrower, (A) its charter (or similar formation document), certified by the
appropriate Governmental Authority, (B) its bylaws (or similar governing document), (C) resolutions
duly adopted by its board of directors (or similar governing body) approving such Borrower’s
execution, delivery and performance of this Agreement and the other Loan Documents to which it is
party, and (D) incumbency certificates evidencing the identity, authority and capacity of each
Responsible Officer of such Borrower authorized to act as a Responsible Officer in connection with
this Agreement and the other Loan Documents to which such Borrower is a party;



(iv) such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Borrower is duly organized or formed, and that each Borrower is (A) validly
existing, (B) in good standing in its jurisdiction of organization, and (C) qualified to engage in
business in each jurisdiction where its ownership, lease or operation of properties or the conduct
of its business requires such qualification except, in the case of clause (C), to the
extent that the failure to do so would not reasonably be expected to have a Material Adverse
Effect;



(v) a favorable opinion of Latham & Watkins LLP, counsel to the Borrowers, acceptable to the
Administrative Agent addressed to the Administrative Agent and each Lender, as to the matters set
forth concerning the Borrowers and the Loan Documents in form and substance satisfactory to the
Administrative Agent;



(vi) a certificate of a Responsible Officer of each Borrower (A) either (x) attaching copies
of all material consents, licenses and approvals required in connection with the execution,
delivery and performance by such Borrower and the validity against such Borrower of the Loan
Documents to which it is a party, and certifying that such consents, licenses and approvals are in
full force and effect, or (y) certifying that no such consents, licenses or approvals are so
required, and (B) certifying that the conditions specified in Sections 4.01(b), (c)
and (d) and Sections 4.02(a) and (b) have been satisfied;



(vii) (A) the Audited Financial Statements, (B) the unaudited consolidated balance sheet of
the Parent and its Subsidiaries for the fiscal quarter ended the Interim Balance Sheet Date, and
the related consolidated statements of income or operations, shareholders’ equity and cash flows
for such fiscal quarter of the Consolidated Group, (C) pro forma consolidated financial statements
of the Consolidated Group for the fiscal quarter ending on the Interim Balance Sheet Date (using
Consolidated EBITDA of the Consolidated Group as of the Interim Balance Sheet Date (but including
any addbacks to Consolidated EBITDA approved under the Existing Credit Agreement in the period from
the Interim Balance Sheet Date through the Closing Date) and Consolidated Total Funded Debt after
giving effect to all such Indebtedness of
the Consolidated Group incurred or otherwise outstanding on the Closing Date (after the
application of the proceeds of the Loans made hereunder on the Closing Date to any other
Indebtedness)), and (D) financial projections and business assumptions covering the period from the
Closing Date through the fiscal year of the Consolidated Group ending December 31, 2015, in form
and substance satisfactory to the Administrative Agent;


 


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(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents
has been obtained and is in effect, together with insurance binders or other satisfactory
certificates of insurance;



(ix) the results of UCC, tax lien, bankruptcy, judgment and litigation searches (and the
equivalent thereof in all applicable foreign jurisdictions) with respect to the Parent and UCC
searches for each of the other Borrowers, in each case indicating no Liens other than Permitted
Liens and otherwise in form and substance satisfactory to the Administrative Agent;



(x) a duly completed Compliance Certificate in form and detail satisfactory to the
Administrative Agent and the Lenders, evidencing pro forma compliance with each of the covenants
set forth in Section 7.14 (using Consolidated EBITDA of the Consolidated Group as of the
Interim Balance Sheet Date (but including any addbacks to Consolidated EBITDA approved under the
Existing Credit Agreement in the period from the Interim Balance Sheet Date through the Closing
Date) and Consolidated Total Funded Debt after giving effect to all such Indebtedness of the
Consolidated Group incurred or otherwise outstanding on the Closing Date (after the application of
the proceeds of the Loans made hereunder the Closing Date to any other Indebtedness)) and
Section 7.15; and



(xi) such other assurances, reports, audits, certificates, documents, consents or opinions as
the Administrative Agent or the Required Lenders reasonably may require.



(b) The absence of any event or circumstance since the Balance Sheet Date that has had or
could be reasonably expected to have, either individually or in the aggregate, a Material Adverse
Effect.



(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge
of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that
could reasonably be expected to impair or prevent the consummation of the transactions contemplated
by this Agreement or have a Material Adverse Effect.



(d) The absence of any default by the Parent or any of its Subsidiaries under any material
contract or agreement to which the Parent or such Subsidiary is a party that could reasonably be
expected to have a Material Adverse Effect.



(e) The Administrative Agent’s satisfaction that all financial statements delivered to it
fairly present the business and financial condition of the Consolidated Group.



(f) Arrangements completely satisfactory to the Administrative Agent for the payment at
closing of all accrued fees and expenses of the Administrative Agent required to be paid on or
prior to the Closing Date shall have been made (including the reasonable fees and expenses of
counsel for the Administrative Agent to the extent invoiced prior to the Closing
Date) and arrangements completely satisfactory to each Arranger for the payment of the fees to
be paid on or prior to the Closing Date to such Arranger pursuant to its Fee Letter.


 


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Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a
Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a
continuation of LIBOR Rate Loans) is subject to the following conditions precedent:



(a) The representations and warranties of the Borrowers contained in Article V or any
other Loan Document, or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all material respects (except, if a
qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such
representation or warranty shall be required to be true and correct in all respects) on and as of
the date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in such
respects as of such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in Section 5.04(a) shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), as applicable, of
Section 6.04.



(b) No Default or Event of Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.



(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion
of Committed Loans to the other Type or a continuation of LIBOR Rate Loans) submitted by the
Borrowers shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.


 


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ARTICLE V. REPRESENTATIONS AND WARRANTIES




The Borrowers represent and warrant to the Administrative Agent and the Lenders that:



5.01 Corporate Authority.



(a) Incorporation; Good Standing. Each Borrower (i) is a corporation, partnership,
limited liability company or similar business entity duly organized, validly existing and in good
standing or in current status under the laws of its respective state of organization, (ii) has
all requisite corporate (or equivalent company or partnership) power to own its property and
conduct its business as now conducted and as presently contemplated, and (iii) is in good standing
as a foreign corporation, partnership, limited liability company or similar business entity and is
duly authorized to do business in each jurisdiction in which its property or business as presently
conducted or contemplated makes such qualification necessary, except where a failure to be in good
standing or so qualified would not have a Material Adverse Effect.



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



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



5.02 Governmental Approvals. The execution, delivery and performance by the Borrowers of the Loan Documents and the
transactions contemplated hereby and thereby do not require any approval or consent of, or filing
with, any Governmental Authority or other Person, other than those approvals and consents already
obtained and filings already made.



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


 


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5.04 Financial Statements; Solvency.



(a) There has been furnished to the Lenders (i) audited consolidated financial statements of
the Consolidated Group dated the Balance Sheet Date and (ii) consolidated financial statements of
the Consolidated Group dated the Interim Balance Sheet Date. Said
financial statements have been prepared in accordance with GAAP and fairly present in all
material respects the financial condition of the Consolidated Group on a consolidated basis, as at
the close of business on the respective dates thereof and the results of operations for the
respective periods then ended. There are no contingent liabilities of the Consolidated Group
involving material amounts, known to the officers of the Borrowers, which have not been disclosed
in said balance sheets and the related notes thereto or otherwise in writing to the Lenders.



(b) The Borrowers on a consolidated basis (both before and after giving effect to the
transactions contemplated by this Agreement) are and will be Solvent.



5.05 No Material Changes, Etc. Since the Balance Sheet Date, no Material Adverse Effect has occurred with respect to the
financial condition or businesses of the Borrowers, taken as a whole, as shown on or reflected in
the consolidated balance sheet of the Borrowers as of the Balance Sheet Date, or the consolidated
statement of income for the four (4) fiscal quarters then ended. Since the Balance Sheet Date,
there have not been any Restricted Payments other than as permitted by Section 7.06.



5.06 Permits, Franchises, Patents, Copyrights, Etc. Each Borrower owns or has been granted the right to use from another Borrower, all
franchises, patents, copyrights, trademarks, trade names, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of its business substantially as now conducted
without known conflict with any rights of others.



5.07 Litigation. Except as shown on Schedules 5.07 and 5.16 hereto, there are no actions,
suits, proceedings or investigations of any kind pending or, to the knowledge of any Borrower,
threatened against any Borrower before any court, tribunal or administrative agency or board which
either in any individual case or in the aggregate, has or could reasonably be expected to have a
Material Adverse Effect.



5.08 No Materially Adverse Contracts, Etc. No Borrower is subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation which in the judgment of the Borrowers’ officers has or
is expected in the future to have a Material Adverse Effect. No Borrower is a party to any
contract or agreement which in the judgment of the Borrowers’ officers has or is expected to have a
Material Adverse Effect, except as otherwise reflected in adequate reserves.



5.09 Compliance with Other Instruments, Laws, Etc. No Borrower is violating any provision of its Organization Documents, any agreement or
instrument by which any of them may be subject or by which any of them or any of their properties
may be bound, or any Law, in a manner which could reasonably be expected to result in the
imposition of substantial penalties or have a Material Adverse Effect.


 


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5.10 Tax Status. Each of the Borrowers has (a) made or filed (x) all federal income tax returns, reports and
declarations, (y) all material state income tax returns, reports and declarations, and (z) all
other material tax returns, reports and declarations required by any jurisdiction to which it is
subject (unless and only to the extent that such Borrower has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes), (b) has paid all taxes and
other governmental assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in good faith, and (c)
has set aside on its books provisions adequate for the payment of all material Taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.



5.11 No Event of Default. No Default or Event of Default has occurred and is continuing.



5.12 Holding Company and Investment Company Acts. Neither the Parent nor any of its Subsidiaries is a “public utility”, as that term is
defined under the Federal Power Act, as amended, and the regulations of the Federal Energy
Regulatory Commission (“FERC”) promulgated thereunder. Neither the Parent nor any of its
Subsidiaries (i) is subject to any of the accounting or cost-allocation requirements of the Public
Utility Holding Company Act of 2005, or the regulations or orders of the FERC promulgated
thereunder or (ii) is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.



5.13 Absence of Financing Statements, Etc. Other than Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any filing records,
registry, or other public office, which purports to cover, affect or give notice of any present or
possible future Lien on, or security interest in, any assets or property of any Borrower, or any
rights relating thereto.



5.14 ERISA Compliance.



(a) Each Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, each
Multiemployer Plan, is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state laws except as could not reasonably be expected to result in a Material Adverse
Effect. Each Pension Plan (other than a Multiemployer Plan) that is intended to be a qualified
plan under Section 401(a) of the Code has received a favorable determination or opinion letter from
the Internal Revenue Service to the effect that the form of such Pension Plan is qualified under
Section 401(a) of the Code and the trust related thereto has been determined by the Internal
Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being processed by the Internal Revenue
Service. To the best knowledge of the Borrowers, nothing has occurred that would prevent or
cause the loss of such tax-qualified status.


 


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(b) There are no pending or, to the best knowledge of the Borrowers, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



(c) (i) No ERISA Event has occurred, and neither any Borrower nor any ERISA Affiliate is aware
of any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) each Borrower and each ERISA Affiliate has met
all applicable requirements under the Pension Funding Rules in respect of each Pension Plan (other
than a Multiemployer Plan), and no waiver of the minimum funding standards under the Pension
Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any
Pension Plan (other than a Multiemployer Plan), the funding target attainment percentage (as
defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and neither any Borrower
nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to
cause the funding target attainment percentage for any such plan to drop below sixty percent (60%)
as of the most recent valuation date; (iv) neither any Borrower nor any ERISA Affiliate has
incurred any liability to the PBGC other than for the payment of premiums, and there are no premium
payments which have become due that are unpaid; (v) neither any Borrower nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and
(vi) no Pension Plan (other than a Multiemployer Plan) has been terminated by the plan
administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that
could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to
terminate any Pension Plan (other than a Multiemployer Plan) and, to the knowledge of the
Borrowers, there has been no notification to the Borrowers that a Multiemployer Plan has been
terminated by the plan administrator thereof or by the PBGC, and, to the knowledge of the
Borrowers, no event or circumstance has occurred or exists that could reasonably be expected to
cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Multiemployer
Plan.



5.15 Use of Proceeds.



(a) General. The proceeds of the Loans shall be used solely as follows: (a) to
refinance Indebtedness of the Borrowers under the Existing Credit Agreement on the Closing Date;
(b) to finance acquisitions permitted pursuant to Section 7.04; and (c) for capital
expenditures, working capital, Letters of Credit, and general corporate purposes.



(b) Regulations U and X. The Borrowers are not engaged and will not engage,
principally or as one of their important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the
purpose of purchasing or carrying margin stock. Following the application of the proceeds of each
Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets
(either of the applicable Borrower only or of the Consolidated Group) subject to any
restriction on sale, pledge, or disposal under this Agreement or subject to any restriction
contained in any agreement or instrument between the Borrowers and any Lender or any Affiliate of
any Lender relating to Indebtedness and within the scope of Section 8.01(f) will be margin
stock.


 


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5.16 Environmental Compliance. The Borrowers have taken all necessary steps to investigate the past and present condition
and usage of the Real Estate and the operations conducted thereon and, based upon such diligent
investigation, have determined that, except as set forth on Schedule 5.16:



(a) none of the Borrowers or Excluded Subsidiaries, nor any operator of any Real Estate, nor
any operations thereon, is in violation, or alleged violation, of any judgment, decree, order, law,
permit, license, rule or regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act of 1976, CERCLA, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any Federal, state, local or foreign law,
statute, regulation, ordinance, rule, order, decree, permit, concession, grant, franchise, license,
agreement or governmental restriction relating to health, safety, waste transportation or disposal,
pollution or the protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air emissions or discharges
to public or private wastewater systems (the “Environmental Laws”), which violation would
have a Material Adverse Effect;



(b) none of the Borrowers has received written notice from any third party, including any
Governmental Authority, (i) that any one of them has been identified by the United States
Environmental Protection Agency (“EPA”) as a potentially responsible party under CERCLA
with respect to a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii)
that any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as defined by
42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33), or any other
Hazardous Materials which any one of them has generated, transported or disposed of has been found
at any site at which a Governmental Authority has conducted or has ordered that the Borrowers
conduct a remedial investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that any one of them is or will be named party to any claim, action, cause of action,
complaint or legal or administrative proceeding (in each case, contingent or otherwise) arising out
of any third party’s incurrence of costs, expenses, losses or damages of any kind whatsoever in
connection with the release of Hazardous Materials which notice (or any related proceeding or other
action) would have a Material Adverse Effect;



(c) except where it would not have a Material Adverse Effect, (i) no portion of the Real
Estate has been used for the handling, processing, storage or disposal of Hazardous Materials and
no underground tank or other underground storage receptacle for Hazardous Materials is located on
any portion of the Real Estate; (ii) in the course of any activities conducted by the Borrowers,
or, to the Borrowers’ knowledge by any other operators of the Real Estate, no Hazardous Materials
have been generated or are being used on the Real Estate; (iii) there have been no unpermitted
Releases or threatened Releases of Hazardous Materials on, upon, into or from


 


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the
    Real Estate; (iv)
to the Borrowers’ knowledge, there have been no Releases of Hazardous Materials on, upon, into or from any real property in the vicinity of
any of the Real Estate which, through soil or groundwater contamination, may have come to be
located on the Real Estate; and (v) any Hazardous Materials that have been generated on any of the
Real Estate that are regulated as hazardous have been transported offsite only by carriers having
an identification number issued by the EPA (or the equivalent thereof in any foreign jurisdiction),
and treated or disposed of only by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and facilities have been and are,
to the Borrowers’ knowledge, operating in compliance with such permits and applicable Environmental
Laws; and



(d) except where it would not have a Material Adverse Effect, none of the Borrowers is
required under any applicable Environmental Law to perform Hazardous Materials site assessments, or
remove or remediate Hazardous Materials, or provide notice to any Governmental Authority or record
or deliver to other Persons an environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition to the effectiveness of
any other transactions contemplated hereby.



5.17 Transactions with Affiliates. Except as disclosed in Schedule 5.17 or filings made by the Borrowers under the
Exchange Act prior to the Closing Date, and except for arm’s length transactions pursuant to which
a Borrower makes payments in the ordinary course of business upon terms no less favorable than such
Borrower could obtain from third parties, none of the officers, directors, or employees of any
Borrower is presently a party to any transaction with another Borrower (other than for services as
employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of any Borrower, any corporation, partnership, trust or other entity
in which any officer, director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.



5.18 Subsidiaries. Schedule 1 (as updated from time to time pursuant to Section 6.16) sets
forth a complete and accurate list of the Subsidiaries of the Parent, including the name of each
Subsidiary and its jurisdiction of incorporation. Each Subsidiary listed on Schedule 1 is
(a) wholly owned by the Parent (except as noted in such Schedule) and (b) is a Borrower hereunder
(except the Excluded Subsidiaries and any Receivables SPVs). The Parent has good and marketable
title to all of the Equity Interests it purports to own of each such Subsidiary, and each other
Borrower has good and marketable title to all of the Equity Interests it purports to own of such
Subsidiary, free and clear in each case of any Lien. All such Equity Interests have been duly
issued and are fully paid and non-assessable.


 


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5.19 True Copies of Charter and Other Documents. Each Borrower has furnished the Administrative Agent copies, in each case true and complete
as of the Closing Date, of its Organization Documents, including any amendments thereto.



5.20 Disclosure. Neither this Agreement, nor any of the other Loan Documents, nor any document or
information furnished by the Borrowers in connection therewith contains any untrue statement of a
material fact or omits to state a material fact (known to any Borrower in the case of any document
or information not furnished by the Borrowers) necessary in order to make the statements herein or
therein not misleading. There is no fact known to any Borrower which materially adversely affects,
or which is reasonably likely in the future to materially adversely affect, the business, assets,
or financial condition of any Borrower, exclusive of effects resulting from changes in general
economic conditions, legal standards or regulatory conditions.



5.21 Capitalization. As of the Interim Balance Sheet Date, the authorized Equity Interests of the Parent consist
of (i) 150,000,000 shares of common stock (par value $0.01 per share) of which 113,578,009 shares
were outstanding as of such date, and (ii) 7,500,000 shares of preferred stock of which none were
outstanding as of such date. All of such outstanding shares are fully paid and non-assessable. In
addition, as of March 31, 2011, the board of directors of the Parent has duly reserved (A)
1,450,517 shares of the Parent’s common stock for issuance upon vesting of outstanding restricted
stock units, (B) 1,173,158 shares of the Parent’s common stock for issuance upon exercise of
outstanding options, (C) 58,265 shares of the Parent’s common stock for issuance upon exercise of
outstanding warrants, (D) zero shares of the Parent’s common stock for issuance upon the vesting of
outstanding restricted stock, (E) 3,652,793 shares of the Parent’s common stock for issuance upon
the exercise of stock options or on satisfaction of conditions in restricted stock or restricted
stock unit awards, all of which are available to be granted pursuant to the Parent’s equity
incentive plans, and (F) 286,845 shares of the Parent’s common stock available to be granted
pursuant to the Parent’s warrant plans.



5.22 Permits and Licenses. All permits and licenses (other than those the absence of which would not have a Material
Adverse Effect) required for the construction, ownership and operation of the landfills, solid
waste facilities, and solid waste collection, transfer, hauling, recycling and disposal operations
owned or operated by the Parent and the Subsidiaries have been obtained and remain in full force
and effect and are not subject to any appeals or further proceedings or to any unsatisfied
conditions that may allow material modification or revocation. Neither any Parent nor any
Subsidiary nor, to the knowledge of a Responsible Officer of the Borrowers, the holder of such
licenses or permits is in violation of any such licenses or permits, except for any violation which
would not have a Material Adverse Effect.



5.23 Excluded Subsidiaries. Except as permitted under Section 7.01 or Section 7.03, no Borrower has or
has committed to (a) Guarantee Indebtedness or other financial obligations of any Excluded
Subsidiary or (b) make any advance, loan, assumption of debt, extension of credit or capital
contribution to or any other Investment in any Excluded Subsidiary.


 


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ARTICLE VI. AFFIRMATIVE COVENANTS




So long as any Lender shall have any Revolving Commitment hereunder and this Agreement has not been
terminated, any Loan or other Obligation hereunder (other than contingent indemnity obligations
with respect to then unasserted claims) shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding:



6.01 Punctual Payment. The Borrowers will duly and punctually pay or cause to be paid the principal and interest
on the Loans, all L/C Obligations, fees and other amounts provided for in this Agreement and the
other Loan Documents, all in accordance with the terms of this Agreement and such other Loan
Documents.



6.02 Maintenance of Offices. The Parent will maintain its chief executive offices at 2295 Iron Point Road, Suite 200,
Folsom, California 95630-8767 or such other place in the United States as the Parent shall
designate upon thirty (30) days prior written notice to the Administrative Agent. Upon request of
the Administrative Agent from time to time after the Closing Date, the Borrowers shall promptly
provide the Administrative Agent with the principal place of business of each Borrower.



6.03 Records and Accounts. Each Borrower will (i) keep true and accurate records and books of account in which full,
true and correct entries will be made in accordance with generally accepted accounting principles,
(ii) maintain adequate accounts and reserves for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties, contingencies, and other reserves, and
(iii) at all times engage the Accountants as the independent certified public accountants of the
Borrowers.



6.04 Financial Statements, Certificates and Information. The Borrowers will deliver to the Lenders:



(a) within five (5) days after the filing with the Securities and Exchange Commission of the
Parent’s Annual Report on Form 
10-K with respect to each fiscal year (and in any event within one
hundred (100) days after the end of such fiscal year), the consolidated balance sheets of the
Consolidated Group as at the end of such year, and the related consolidated statements of income
and cash flows of the Consolidated Group, each setting forth in comparative form the figures for
the previous fiscal year, all such financial statements to be in reasonable detail, prepared in
accordance with GAAP and audited and accompanied by a report and opinion of the Accountants, which
report and opinion shall state that such financial statements present fairly the
financial position of the Consolidated Group and shall not be subject to any qualification as
to going concern or the scope of the audit;


 


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(b) within five (5) days after the filing with the Securities and Exchange Commission of the
Parent’s Quarterly Report on Form 10-Q with respect to each of the first three (3) fiscal quarters
of each fiscal year (and in any event within 55 days after the end of each such fiscal quarter),
copies of the consolidated balance sheets of the Consolidated Group as at the end of such fiscal
quarter, and the related consolidated statements of income and cash flows of the Consolidated Group
as at the end of such quarter, subject to normal year-end adjustments and the absence of footnotes,
all in reasonable detail and prepared in accordance with GAAP subject to normal year-end
adjustments and the absence of footnotes, with a certification by the CFO that the consolidated
financial statements are prepared in accordance with GAAP and fairly present the consolidated
financial condition of the Consolidated Group as at the close of business on the date thereof and
the results of operations for the period then ended;



(c) simultaneously with the delivery of the financial statements referred to in
subsections (a) and (b) above, a Compliance Certificate certified by the CFO that
the Consolidated Group is in compliance with the covenants contained in Sections 7.14 and
7.15 as of the end of the applicable period setting forth in reasonable detail computations
evidencing such compliance, provided, that if the Borrowers shall at the time of issuance
of such certificate or at any other time obtain knowledge of any Default or Event of Default, the
Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a
certificate specifying the nature and period of existence thereof and what action the Borrowers
propose to take with respect thereto;



(d) contemporaneously with, or promptly following, the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange Commission or sent to the
stockholders of the Borrowers; and



(e) from time to time, such other financial data and other information (including accountants’
management letters and a copy of the Borrowers’ annual budget and projections for any fiscal year)
as the Lenders may reasonably request.



Borrowers shall be deemed to have delivered reports and other information referred to in
clauses (a), (b), and (d) of this Section 6.04 when (A) such
reports or other information have been posted on the Internet website of the Securities and
Exchange Commission (http://www.sec.gov) or on Parent’s Internet website as previously identified
to the Administrative Agent and Lenders and (B) Parent or Borrowers have notified the
Administrative Agent by electronic mail of such posting.



 


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The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Parent or its Subsidiaries, or the
respective securities of any of the foregoing, and who may be engaged in investment and

other market-related activities with respect to such Persons’ securities. The Borrowers
hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall
be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C
Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Borrowers or their
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the
Borrowers shall be under no obligation to mark any Borrower Materials “PUBLIC.”



6.05 Legal Existence and Conduct of Business. Except as otherwise permitted by Section 7.04, each Borrower will do or cause to be
done all things necessary to preserve and keep in full force and effect its legal existence, legal
rights and franchises; effect and maintain its foreign qualifications, licensing, domestication or
authorization except as terminated by such Borrower’s board of directors (or similar governing
body) in the exercise of its reasonable judgment and except where the failure of a Borrower to
remain so qualified would not have a Material Adverse Effect; and shall not become obligated under
any contract or binding arrangement which, at the time it was entered into would have a Material
Adverse Effect. Each Borrower will continue to engage primarily in the businesses conducted by it
on the Closing Date and in related businesses, except to the extent otherwise permitted under
Sections 7.03 and 7.04.



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


 


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6.07 Insurance. The Borrowers will maintain with financially sound and reputable insurance companies, funds
or underwriters insurance of the kinds, covering the risks (other than risks arising out of or in
any way connected with personal liability of any officers and directors
thereof) and in the relative proportionate amounts typically carried by reasonable and prudent
companies conducting businesses similar to that of the Borrowers. In addition, the Borrowers will
furnish from time to time, upon the Administrative Agent’s request, a summary of the insurance
coverage, which summary shall be in form and substance reasonably satisfactory to the
Administrative Agent and, if requested by the Administrative Agent, will furnish to the
Administrative Agent certificates evidencing such insurance and, with respect to the certificate
evidencing liability insurance, naming the Administrative Agent as the certificate holder
thereunder. Notwithstanding the foregoing, the Borrowers shall be permitted to maintain self
insurance programs of the kinds, covering the risks and in the relative amounts as more
particularly described on Schedule 6.07.



6.08 Taxes. The Borrowers will duly pay and discharge, or cause to be paid and discharged, before any
material penalty accrues thereon, all taxes, assessments and other governmental charges (other than
taxes, assessments and other governmental charges imposed by foreign jurisdictions which in the
aggregate are not material to the business or assets of any Borrower on an individual basis or of
the Borrowers on a consolidated basis) imposed upon it and its real properties, sales and
activities, or any material part thereof, or upon the income or profits therefrom, as well as all
claims for labor, materials, or supplies, which if unpaid might by law become a Lien or charge upon
any material portion of its property, unless such Lien is a Permitted Lien; provided,
however, that any such tax, assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by appropriate proceedings
and if such Borrower shall have set aside on its books adequate reserves with respect thereto; and
provided, further, that the Borrowers will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to foreclose any Lien
which may have attached as security therefor.



6.09 Inspection of Properties, Books, and Contracts. The Borrowers will permit the Administrative Agent or any other designated representative
of the Lenders (including any Lender), upon reasonable notice and during normal business hours, to
visit and inspect any of their properties, to examine their books of account (including the making
of periodic accounts receivable reviews), or contracts (and to make copies thereof and extracts
therefrom), and to discuss their affairs, finances and accounts with, and to be advised as to the
same by, their officers, all at such times and intervals as the Lenders or the Administrative Agent
may reasonably request.



6.10 Compliance with Laws, Contracts, Licenses and Permits; Maintenance of Material Licenses
and Permits. The Borrowers will and will cause the Excluded Subsidiaries to (i) comply with the
provisions of their Organization Documents, (ii) comply with the provisions of all agreements and
instruments by which they or any of their properties may be bound; and (iii) comply with all
applicable Laws (including Environmental Laws and Environmental Permits) except, in the cause of
subsections (ii) and (iii), where noncompliance with such applicable Laws would not
have a Material Adverse Effect. If at any time while any


 


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Loan
or Letter of Credit is outstanding or any Lender or the Administrative Agent has any obligation to make Loans or issue Letters of
Credit hereunder, any authorization, consent, approval, permit or license from any Governmental
Authority shall become necessary or required in order that the Borrowers may fulfill any of their
obligations hereunder, the Borrowers will immediately take or cause to be taken all reasonable
steps within the power of the Borrowers to obtain such authorization, consent, approval, permit or
license and furnish the Lenders with evidence thereof.



6.11 Environmental Indemnification. Each Borrower covenants and agrees that it will indemnify and hold the Administrative Agent
and the Lenders harmless from and against any and all claims, expense, damage, loss or liability
incurred by the Administrative Agent or the Lenders (including all costs of legal representation)
relating to (a) any Release or threatened Release of Hazardous Materials on the Real Estate; (b)
any violation of any Environmental Laws with respect to conditions at the Real Estate or the
operations conducted thereon; (c) the investigation or remediation of offsite locations at which
any Borrower or its predecessors are alleged to have directly or indirectly disposed of Hazardous
Materials; or (d) any Environmental Liability related in any way to any Borrower or any Excluded
Subsidiary. It is expressly acknowledged by each Borrower that this covenant of indemnification
shall include claims, expense, damage, loss or liability incurred by the Administrative Agent or
the Lenders based upon the Administrative Agent’s or the Lenders’ negligence (but not gross
negligence or willful misconduct, in each case as determined by a court of competent jurisdiction
by a final and nonappealable judgment), and this covenant shall survive any foreclosure or any
modification, release or discharge of the Loan Documents or the payment of the Loans and shall
inure to the benefit of the Administrative Agent, the Lenders and their successors and assigns.



6.12 Further Assurances. The Borrowers will cooperate with the Administrative Agent and the Lenders and execute such
further instruments and documents as the Lenders or the Administrative Agent shall reasonably
request to carry out to the Lenders’ satisfaction the transactions contemplated by this Agreement
and the Loan Documents.



6.13 Notice of Potential Claims or Litigation. The Borrowers will deliver to the Lenders, within thirty (30) days of receipt thereof,
written notice of the initiation of any action, claim, complaint, or any other notice of dispute or
potential litigation (including without limitation any alleged violation of any Environmental Law
or any dispute, litigation, investigation or proceeding between any Borrower and any Governmental
Authority), wherein the potential liability could reasonably be expected to be in excess of
$15,000,000, together with a copy of each such notice received by any Borrower or any Excluded
Subsidiary.



6.14 Notice of Certain Events Concerning Insurance and Environmental Claims.



(a) The Borrowers will provide the Lenders with written notice as to any material cancellation
or material change in any insurance of the Borrowers within ten (10) Business Days
after the Borrowers’ receipt of any written notice of such cancellation or change by any of
their insurers.


 


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



(i) upon obtaining knowledge of any violation of any Environmental Law regarding the Real
Estate or any Borrower’s operations which could reasonably be expected to result in liability in
excess of $15,000,000; (ii) upon obtaining knowledge of any potential or known Release or threat of
Release of any Hazardous Materials at, from, or into the Real Estate which it reports or is
reportable in writing to any Governmental Authority which could reasonably be expected to result in
liability in excess of $15,000,000; (iii) upon receipt of any notice of violation of any
Environmental Laws or of any Release or threatened Release of Hazardous Materials, including a
notice or claim of liability or potential responsibility from any third party (including without
limitation any Governmental Authority) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) operation of the Real Estate, (B)
contamination on, from or into the Real Estate, or (C) investigation or remediation of offsite
locations at which any Borrower or any of its predecessors is alleged to have directly or
indirectly disposed of Hazardous Materials, which violation or Release in any such case could
reasonably be expected to have a Material Adverse Effect; or (iv) upon obtaining knowledge that any
material expense or loss has been incurred by such Governmental Authority in connection with the
assessment, containment, removal or remediation of any Hazardous Materials with respect to which
any Borrower could reasonably be expected to have liability in excess of $15,000,000 or for which a
Lien for a like amount could reasonably be expected to be imposed on the Real Estate.



6.15 Notice of Default. The Borrowers will promptly notify the Lenders in writing of the occurrence of any Default
or Event of Default. If any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under this Agreement or any other
note, evidence of Indebtedness, indenture or other obligation evidencing Indebtedness in excess of
$15,000,000 as to which any Borrower is a party or obligor, whether as principal or surety, the
Borrowers shall forthwith give written notice thereof to the Lenders, describing the notice or
action and the nature of the claimed default.



6.16 New Subsidiaries.



(a) Any new Subsidiary (other than permitted Excluded Subsidiaries and Receivables SPVs)
created or acquired by a Borrower as permitted under Section 7.04 shall become a Borrower
hereunder. Such Subsidiary shall become a Borrower hereunder on or before the fifteenth (15th)
Business Day after the end of the fiscal quarter in which such Subsidiary was created or acquired.
A Subsidiary shall become a Borrower by (x) signing a joinder agreement in substantially the form
attached hereto as Exhibit E or entering into an amendment to this Agreement with the other
parties hereto and thereto, in form and substance reasonably satisfactory to the Administrative
Agent, providing that such Subsidiary shall become a Borrower hereunder, and (y) providing such
other documentation as the Administrative Agent
may reasonably request, including, without limitation, (i) KYC Requirement Information with
respect to such new Subsidiary and (ii) documentation with respect to the conditions specified in
Section 4.01. In such event, the Administrative Agent is hereby authorized by the parties
to amend Schedule 1 to include such new Subsidiary and the KYC Requirement Information in
respect thereof.


 


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(b) The Parent shall at all times directly or indirectly through a Subsidiary own all of the
Equity Interests of each of the Subsidiaries (other than the Excluded Subsidiaries).



6.17 Reserved.



6.18 Additional Notices. The Borrowers will promptly notify the Administrative Agent in writing of (a) any material
change by any Borrower in accounting policies, financial reporting practices (subject to
Section 7.12) or attestation reports concerning internal controls pursuant to Section 404
of Sarbanes-Oxley, and (b) the occurrence of any ERISA Event.



6.19 Designation of Excluded Subsidiaries. The Parent may from time to time designate any Subsidiary as an Excluded Subsidiary,
provided that the following conditions precedent to the effectiveness of such designation are
satisfied:



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



(b) the Borrowers will be in pro forma compliance with the restrictions on Excluded
Subsidiaries set forth in Section 7.15, measured as of the end of the most recent fiscal
quarter of the Consolidated Group for which a Compliance Certificate has been or is required to
have been delivered pursuant to Section 6.04(c) (with assets values and revenues of the
Excluded Subsidiaries adjusted as if such designation occurred on the first day of the applicable
Reference Period); and



(c) the Parent has delivered to the Administrative Agent (i) written notice of such
designation and (ii) a Compliance Certificate certifying compliance with the conditions set forth
in the foregoing clause (b) and setting forth reasonably detailed calculations in support
thereof.



For the avoidance of doubt, in the event that any Borrower is designated as an Excluded Subsidiary
in accordance with this Section 6.19, such Subsidiary shall be released from its
obligations under the Loan Documents.


 


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ARTICLE VII. NEGATIVE COVENANTS




So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other Obligation
hereunder (other than contingent indemnity obligations with respect to then unasserted claims)
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:



7.01 Restrictions on Indebtedness. No Borrower shall create, incur, assume or suffer to exist any Indebtedness other than:



(a) Indebtedness existing on the Closing Date and set forth on Schedule 7.01,
including any renewals, extensions, refinancings and replacements thereof so long as the principal
amount thereof (plus all accrued interest on such Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith, the amount of which may be included
in the principal amount of any refinancing) is not increased;



(b) incurrence of guaranty, suretyship or indemnification obligations in connection with the
Borrowers’ performance of services for their respective customers in the ordinary course of their
businesses;



(c) Indebtedness of one Borrower to another Borrower;



(d) Indebtedness of the Borrowers incurred in connection with the acquisition or lease of any
equipment or other property by the Borrowers under any Synthetic Lease, Capital Lease or other
lease arrangement or purchase money financing;



(e) Indebtedness of the Borrowers with respect to bonds for closure and post-closure
obligations relating to any landfill owned or operated by the Borrowers;



(f) Indebtedness of the Borrowers in respect of Swap Contracts (including Fuel Derivatives
Obligations) entered into in the ordinary course of business and not for speculative purposes;



(g) Indebtedness of the Borrowers with respect to letters of credit of Persons acquired by the
Borrowers; provided, that such letters of credit shall be retired immediately or
replaced by Letters of Credit under this Agreement as soon as possible but in any event not later
than one hundred twenty (120) days after the closing of any such acquisition;



(h) Indebtedness of the Borrowers in respect of IRBs; provided, that (a) such
Indebtedness may be secured only to the extent such IRBs are L/C Supported IRBs and (b) after
taking into account all Indebtedness incurred pursuant to this clause (h), the Borrowers on
a consolidated basis shall be in pro forma compliance with each of the financial covenants set
forth in Section 7.14 (using Consolidated EBITDA of the Consolidated Group as of the last
day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA
previously approved in the period following the last day of the applicable Pro Forma Reference
Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such
Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the first day of
the applicable Pro Forma Reference Period)).



(i) other secured Indebtedness (other than as permitted under other subsections hereof), not
in excess of $20,000,000 in the aggregate at any time outstanding; and



(j) other unsecured Indebtedness; provided, that, at the time of incurrence thereof,
the Borrowers shall be in pro forma compliance with each of the financial covenants set forth in
Section 7.14 (using Consolidated EBITDA of the Consolidated Group as of the last day
of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA
previously approved in the period following the last day of the applicable Pro Forma Reference
Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such
Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the first day of
the applicable Pro Forma Reference Period)).


 


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7.02 Restrictions on Liens. No Borrower shall create or incur or suffer to be created or incurred or to exist any Lien
of any kind upon any property or assets of any character, whether now owned or hereafter acquired,
or upon the income or profits therefrom; or transfer any of such property or assets or the income
or profits therefrom for the purpose of subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to payment of its general creditors; or acquire, or
agree or have an option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; or suffer to exist for a
period of more than thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against it which if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles or chattel paper, with or
without recourse, except as follows (the “Permitted Liens”):



(a) Liens to secure taxes, assessments and other government charges in respect of obligations
not overdue or Liens on properties to secure claims for labor, material or supplies in respect of
obligations not overdue or that are being contested in good faith by appropriate proceedings
(provided that, if the obligation with respect to which any such Lien arises is being contested in
good faith by appropriate proceedings, such obligation may remain unpaid during the pendency of
such proceedings as long as the Borrowers shall have set aside on their books adequate reserves
with respect thereto);



(b) Deposits or pledges made in connection with, or to secure payment of, workmen’s
compensation, unemployment insurance, old age pensions or other social security obligations other
than any Lien imposed by ERISA and not permitted pursuant to Section 7.07;



(c) Liens in respect of judgments or awards which have been in force for less than the
applicable period for taking an appeal so long as execution is not levied thereunder or in respect
of which the applicable Borrower shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have been obtained pending
such appeal or review and in respect of which such Borrower maintains adequate reserves;



(d) Liens of carriers, warehousemen, mechanics and materialmen, and other like Liens, in
existence less than one hundred twenty (120) days from the date of creation thereof in respect of
obligations not overdue, provided that such Liens may continue to exist for a
period of more than one hundred twenty (120) days if the validity or amount thereof shall currently
be contested by the applicable Borrower in good faith by appropriate proceedings and if such
Borrower shall have set aside on its books adequate reserves with respect thereto as required by
GAAP and provided, further that such Borrower will pay any such claim
forthwith upon commencement of proceedings to foreclose any such Lien;


 


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(e) Encumbrances on Real Estate consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities in the title thereto,
landlord’s or lessor’s Liens under leases to which any Borrower is a party, and other minor Liens
none of which in the opinion of such Borrower interferes materially with the use of the property
affected in the ordinary conduct of the business of such Borrower, which defects do not
individually or in the aggregate have a Material Adverse Effect;



(f) Liens securing Indebtedness permitted under Section 7.01(d) incurred in connection
with the lease or acquisition of property or fixed assets or industrial bond financings,
provided that such Liens shall encumber only the property or assets so acquired or
financed and shall not exceed the purchase price thereof;



(g) Liens, whether created by contract, law, regulation or ordinance, securing Indebtedness
permitted by Sections 7.01(b), (e) and (g); provided, that any
security granted therefor is limited to (i) rights to payment under, and use of equipment or
related assets to perform, the contracts to which such guaranty, suretyship or bond obligations
relate, (ii) Liens arising under the laws of suretyship and (iii) similar Liens granted in favor of
municipalities or other governmental entities pursuant to any Municipal Contract; provided, that
such Liens (A) encumber only the containers, bins, carts and vehicles used in connection with such
Municipal Contract and (B) are promptly released as soon as such release is not prohibited under
the terms of such Municipal Contract;



(h) Liens listed on Schedule 7.02 hereto;



(i) Liens securing Indebtedness permitted under Section 7.01(h) in the form of L/C
Supported IRBs;



(j) Liens securing deposits made on account of liabilities to insurance carriers under
insurance or self-insurance arrangements;



(k) Liens granted to a Receivables SPV in connection with a Permitted Receivables Transaction
and securing Indebtedness of the Parent and its Subsidiaries existing as of the Closing Date and
listed on Schedule 7.01 in connection therewith, provided that such Liens attach only to
the accounts receivable which are the subject of such Indebtedness and to the Equity Interests of
the Receivables SPV; and



(l) Liens granted in connection with secured Indebtedness incurred pursuant to Sections
7.01(a) or (i).


 


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7.03 Restrictions on Investments. No Borrower shall make any Investments unless (i) the Borrowers are in pro forma compliance
with each of the financial covenants set forth in Section 7.14 (using Consolidated EBITDA
of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but
including any addbacks to Consolidated EBITDA previously approved in the period
following the last day of the applicable Pro Forma Reference Period) and Consolidated Total
Funded Debt as of the date of, and after giving effect to, such Investment (with such amounts
adjusted as if such Investment occurred on the first day of the Pro Forma Reference Period)), (ii)
at the time of such Investment, no Default or Event of Default has occurred and is continuing or
would result therefrom and (iii) to the extent such proposed Investment constitutes a transaction
described in Section 7.04(a), the Borrowers comply with the requirements set forth in such
Section 7.04(a); provided, that nothing set forth in this Section 7.03
shall prohibit ordinary course Investments made by the Borrowers from time to time in cash and cash
equivalents.



7.04 Merger, Consolidation and Disposition of Assets.



(a) No Borrower shall become a party to any merger or consolidation, or agree to or effect any
asset acquisition or stock acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices and with respect to asset swaps) except the merger or
consolidation of, or asset or stock acquisitions between existing Borrowers, and except as
otherwise provided in this Section 7.04(a). The Borrowers may purchase or otherwise
acquire assets or the Equity Interests of any other Person; provided that:



(i) the Borrowers are in pro forma compliance with each of the financial covenants set forth
in Section 7.14 (using Consolidated EBITDA of the Consolidated Group as of the last day of
the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA
previously approved in the period following the last day of the applicable Pro Forma Reference
Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such
acquisition (with such amounts adjusted as if such acquisition occurred on the first day of the
applicable Pro Forma Reference Period));



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



(iii) the business to be acquired is predominantly in the same lines of business as the
Borrowers, or businesses reasonably related or incidental thereto (e.g., non-hazardous solid waste
collection, transfer, hauling, recycling, or disposal), except for Investments in other lines of
business in an aggregate amount not to exceed $50,000,000 at any time outstanding for all such
Investments (the amount of any such Investment being the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such Investment);



(iv) all of the assets to be acquired shall be owned by an existing or newly created
Subsidiary of the Parent which Subsidiary shall be or become a Borrower hereunder in accordance
with Section 6.16 or be designated an Excluded Subsidiary in accordance with Section
6.19 and subject to Section 7.15;



(v) the board of directors and (if required by applicable law) the shareholders, or the
equivalents thereof, of the business to be acquired has approved such acquisition; and



(vi) if such acquisition is made by a merger, a Borrower, or a wholly-owned Subsidiary of the
Parent which shall become a Borrower in connection with such merger, shall be the surviving entity.


 


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Notwithstanding anything to the contrary set forth in this clause (a), the Parent shall not
consummate any merger in which it is not the surviving entity.



(b) No Borrower shall become a party to or agree to or effect any Disposition of assets, other
than (a) the sale of inventory, the licensing of intellectual property and the Disposition of
obsolete assets, in each case in the ordinary course of business consistent with past practices,
(b) a Disposition of assets from a Borrower to any other Borrower, (c) the sale or exchange of
routes and related assets which, in the business judgment of the Borrowers, will not have a
Material Adverse Effect, (d) assets with a fair market value of less than $50,000,000 per year
transferred in connection with an asset sale or swap, which sale or swap, in the business judgment
of the Borrowers, will not have a Material Adverse Effect, and (e) the sale, lease, assignment,
transfer or other Disposition of Receivables in connection with any Permitted Receivables
Transaction.



7.05 Sale and Leaseback. No Borrower shall enter into any arrangement, directly or indirectly, whereby such Borrower
shall sell or transfer any property owned by it in order then or thereafter to lease such property
or lease other property which such Borrower intends to use for substantially the same purpose as
the property being sold or transferred, without the prior written consent of the Required Lenders.



7.06 Restricted Payments and Redemptions. No Borrower shall make any Restricted Payments (provided, however, that
neither the exercise of common stock purchase warrants or options to purchase common stock on a
“cashless” exercise basis under a Borrower’s equity incentive plans shall constitute a purchase or
redemption of Equity Interests), except that (a) a Borrower may make any Restricted Payment to
another Borrower, (b) the Parent may make any Restricted Payment so long as no Default or Event of
Default exists or would be created by the making of such Restricted Payment (provided, that
if as of the end of any fiscal quarter in any fiscal year (and after giving effect to any Loans
advanced to finance such Restricted Payment, if any), the Consolidated Group have on a consolidated
basis a Leverage Ratio of greater than or equal to 3.00 to 1.00, as determined by reference to the
most recent Compliance Certificate delivered to the Administrative Agent pursuant to Section
6.04, the Parent shall not make Restricted Payments in excess of $200,000,000 in the aggregate
in such fiscal year, unless and until such time as the Consolidated Group shall have on a
consolidated basis a Leverage Ratio of less than 3.00 to 1.00 as determined by reference to any
subsequent Compliance Certificate delivered to the Administrative Agent pursuant to Section
6.04; provided, further, that if (x) the Parent shall be prohibited from making
Restricted Payments in excess of $200,000,000 in the aggregate in any fiscal year as a result of
the application of the foregoing Leverage Ratio and (y) the Parent shall have previously made
Restricted Payments in an aggregate amount greater than or equal to $200,000,000 during such fiscal
year, the Parent shall not be deemed to be in violation of this Section 7.06 as a result of
such pre-existing Restricted Payments but shall not make any additional Restricted Payments for the
remainder of such fiscal year, unless and until such time as the Consolidated Group have on a
consolidated basis a Leverage Ratio of less than 3.00 to 1.00 as determined by reference to any
subsequent Compliance Certificate delivered to the
Administrative Agent pursuant to Section 6.04) and (c) the Borrowers may make cash
payments to its employees pursuant to one or more profit sharing, equity incentive or other benefit
plan.


 


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7.07 Employee Benefit Plans. No Borrower nor any ERISA Affiliate will:



(a) engage in any “prohibited transaction” within the meaning of Section 406 of ERISA or
Section 4975 of the Code or otherwise incur any excise taxes under Sections 4971, 4975, 4980B or
4980D of the Code which could reasonably be expected to result in a material liability (and in any
event not in excess of $15,000,000) for any Borrower; or



(b) fail to satisfy the Pension Funding Rules with respect to any Pension Plan (other than a
Multiemployer Plan) which could reasonably be expected to result in a material liability (and in
any event not in excess of $15,000,000) for any Borrower or fail to meet or seek any waiver of the
minimum funding standards or incur any funding shortfall (within the meaning of Sections 302 and
303 of ERISA or Sections 430 and 436 of the Code) with respect to any such Pension Plan which could
reasonably be expected to result in a material liability (and in any event not in excess of
$15,000,000) for any Borrower; or



(c) fail to contribute to any Pension Plan to an extent which, or terminate any Pension Plan
(other than a Multiemployer Plan) in a manner which, could reasonably be expected to result in the
imposition of a Lien securing material obligations (and in any event obligations in excess of
$15,000,000) on any assets of any Borrower pursuant to Section 303(k) or Section 4068 of ERISA or
Section 430(k) of the Code; or



(d) post any security pursuant to Section 436(f) of the Code or fail to meet the minimum
required contribution payment obligations under Section 303(j) of ERISA with respect to any Pension
Plan (other than a Multiemployer Plan) which could reasonably be expected to result in a material
liability (and in any event not in excess of $15,000,000) for any Borrower; or



(e) permit or take any action which would result in the aggregate benefit liabilities (within
the meaning of Section 4001 of ERISA) of all Pension Plans (other than any Multiemployer Plans)
exceeding the value of the aggregate assets of such Pension Plans, disregarding for this purpose
the benefit liabilities and assets of any such Pension Plan with assets in excess of benefit
liabilities which could reasonably be expected to result in a material liability (and in any event
not in excess of $15,000,000) for any Borrower; or



(f) incur any withdrawal liability within the meaning of Section 4201 of ERISA with respect to
any Multiemployer Plan which could reasonably be expected to result in a material liability (and in
any event not in excess of $15,000,000) for any Borrower.


 


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7.08 Burdensome Agreements. Except as required by any Municipal Contract, no Borrower shall enter into or permit to
exist any arrangement or agreement, enforceable under applicable law, which directly or indirectly
prohibits such Borrower from (a) making Restricted Payments to the Parent or any other Borrower or
otherwise transferring property to or investing in the Parent or any other
Borrower, except for any such agreement or arrangement in effect at the time such Borrower
became a Subsidiary of the Parent, so long as such agreement or arrangement was not entered into
solely in contemplation of such Borrower becoming a Subsidiary of the Parent, (b) Guaranteeing the
Indebtedness of the Parent or any other Borrower or (c) creating or incurring any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest or Lien in favor of
the Administrative Agent for the benefit of the Lenders and the Administrative Agent under the Loan
Documents other than customary anti-assignment provisions in leases and licensing agreements
entered into by such Borrower in the ordinary course of its business; provided,
however, that clause (c) of this Section 7.08 shall not prohibit any
negative pledge (i) incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.01, (A) solely to the extent any such negative pledge relates to the property
financed by such Indebtedness or (B) the terms of which are customary at the time of incurrence and
are approved by the Administrative Agent in writing, (ii) with respect to any Subsidiary of Parent,
imposed pursuant to an agreement which has been entered into for the sale or disposition permitted
under Section 7.04(b), or (iii) in connection with restrictions imposed by applicable laws.



7.09 Business Activities. No Borrower will engage directly or indirectly (whether through Subsidiaries or otherwise)
in any type of business other than the businesses conducted by such Borrower on the Closing Date
and in related businesses, except to the extent otherwise permitted under Sections 7.03 and
7.04.



7.10 Transactions with Affiliates. No Borrower will engage in any transaction with any non-Borrower Affiliate (other than for
services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any such non-Borrower
Affiliate or, to the knowledge of the Borrowers, any corporation, partnership, trust or other
entity in which any such non-Borrower Affiliate has a substantial interest or is an officer,
director, trustee or partner, on terms more favorable to such Person than would have been
obtainable on an arm’s-length basis in the ordinary course of business.



7.11 Prepayments of Indebtedness. No Borrower shall prepay, redeem or repurchase any Indebtedness incurred by the Borrowers
pursuant to Section 7.01 unless no Default or Event of Default has occurred and is
continuing, or would be created thereby.



7.12 Accounting Changes. No Borrower will make any change in its accounting policies or reporting practices, except
as required by GAAP.


 


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7.13 Use of Proceeds. None of the Borrowers shall use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose;
provided, that the Borrowers may use the proceeds of Loans advanced hereunder to purchase
stock of the Parent as permitted under Section 7.06 so long such stock is retired upon the
consummation of the applicable repurchase.



7.14 Financial Covenants.



(a) Leverage Ratio. As of the last day of each fiscal quarter of the Consolidated
Group, the ratio of (i) Consolidated Total Funded Debt outstanding on such date to (ii)
Consolidated EBITDA for the Reference Period ending on such date (the “Leverage Ratio”),
shall not exceed 3.50:1.00.



(b) Interest Coverage Ratio. As of the last day of any fiscal quarter of the
Consolidated Group, the ratio of Consolidated EBIT to Consolidated Total Interest Expense, in each
case for the Reference Period ending on such date, shall not be less than 2.75:1.00.



7.15 Restrictions on Excluded Subsidiaries. As of the end of each fiscal quarter of the Borrowers, (a) the aggregate book value of the
assets of all Excluded Subsidiaries, shall not exceed five percent (5%) of the aggregate book value
of the assets of the Consolidated Group as of the end of such fiscal quarter, and (b) the aggregate
revenues of all Excluded Subsidiaries, shall not exceed five percent (5%) of the aggregate revenues
of the Consolidated Group for the same period, in either case unless, within thirty (30) days after
such date, the Parent re-designates one or more Excluded Subsidiaries as a Borrower or Borrowers
hereunder to the extent necessary to satisfy the requirements of the foregoing clauses (a)
and (b) (as re-measured for the relevant date or period). Any such re-designated
Subsidiary shall become a Borrower by (x) signing a joinder agreement in substantially the form
attached hereto as Exhibit E or entering into an amendment to this Agreement with the other
parties hereto and thereto, in form and substance reasonably satisfactory to the Administrative
Agent, providing that such Subsidiary shall become a Borrower hereunder, and (y) providing such
other documentation as the Administrative Agent may reasonably request, including, without
limitation, (i) KYC Requirement Information with respect to such re-designated Subsidiary and (ii)
documentation with respect to the conditions specified in Section 4.01. In such event, the
Administrative Agent is hereby authorized by the parties to amend Schedule 1 to designate
such Subsidiary as a Borrower and add the KYC Requirement Information in respect thereof. For the
avoidance of doubt, in the event that any Excluded Subsidiary is joined as a Borrower in accordance
with this Section 7.15, such Subsidiary shall immediately cease to be an Excluded
Subsidiary hereunder upon the effectiveness of such Subsidiary becoming a Borrower.


 


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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES




8.01 Events of Default. Any of the following shall constitute an “Event of Default”:



(a) the Borrowers fail to pay any principal of the Loans or any L/C Obligation when the same
shall become due and payable, whether at the Maturity Date, or any accelerated date of maturity or
at any other date fixed for payment;



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



(c) the Borrowers fail to comply with the covenants contained in Sections 6.05,
6.13, 6.14 or 6.15 or Article VII;



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



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



(f) any Borrower or any Excluded Subsidiary fails to pay at maturity, or within any applicable
period of grace, any and all obligations for borrowed money (other than the Obligations) or any
guaranty with respect thereto in an aggregate amount greater than $50,000,000 or fails to observe
or perform any material term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing borrowed money in an aggregate amount greater than $50,000,000 for
such period of time as would permit (after the giving of appropriate notice if required) the holder
or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof,
unless the same shall have been waived by the holder(s) thereof;



(g) any Borrower or any Excluded Subsidiary institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for sixty (60) days; or any proceeding under any Debtor Relief
Law relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for sixty (60) days, or an
order for relief is entered in any such proceeding;



(h) (i) any Borrower or any Excluded Subsidiary becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or any material part of
the property of any such Person and is not released, vacated or fully bonded within thirty
(30) days after its issue or levy;


 


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(i) there remains in force, undischarged, unsatisfied and unstayed, for more than forty-five
(45) days, whether or not consecutive, any final judgment against any Borrower or any Excluded
Subsidiary which, with other outstanding final judgments against the Borrowers and the Excluded
Subsidiaries, exceeds in the aggregate $20,000,000 after taking into account any undisputed
insurance coverage;



(j) (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of the Borrowers under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$20,000,000, or (ii) the Borrowers or any ERISA Affiliate fail to pay when due, after the
expiration of any applicable grace period (or any period during which (x) any Borrower is permitted
to contest its obligations to make such payment without incurring any liability (other than
interest) or penalty and (y) any Borrower is contesting such obligation in good faith and by
appropriate proceedings), any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $20,000,000;



(k) any of the Loan Documents is cancelled, terminated, revoked or rescinded, in each case
other than in accordance with the terms thereof or with the express prior written agreement,
consent or approval of the Lenders, or any action at law, suit in equity or other legal proceeding
to cancel, revoke or rescind any of the Loan Documents is commenced by or on behalf of any Borrower
or any stockholder of any Borrower who is an officer or director of such Borrower, or any court or
any other governmental or regulatory authority or agency of competent jurisdiction makes a
determination that, or issues a judgment, order, decree or ruling to the effect that, any one or
more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;



(l) (i) the Parent at any time legally or beneficially owns less than one hundred percent
(100%) of the shares of the Equity Interests of each other Borrower (directly or indirectly in
accordance with Section 6.16), or (ii) any person or group of persons (within the meaning
of Section 13 or 14 of the Exchange Act) has acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of twenty-five
percent (25%) or more of the outstanding shares of common stock of the Parent; or, during any
period of twelve (12) consecutive calendar months, individuals who were directors of the Parent on
the first day of such period cease to constitute a majority of the board of directors unless such
new directors were approved by a majority of the directors who were directors on the first day of
such period; provided, however, that any such change of control described in this
clause (ii) resulting from an acquisition permitted under Section 7.04 shall not
constitute a Default or an Event of Default hereunder; or



(m) the occurrence of a “Change of Control” under and as defined in any documents executed
and/or delivered in connection any Covenanted Senior Debt.


 


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8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders:



(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrowers;



(c) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to
then Outstanding Amount thereof); and



(d) exercise on behalf of itself, the Lenders and the L/C Issuer any other right or remedy
available under any other Loan Document, at law, in equity, under any other instrument, document or
agreement or otherwise;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent, the L/C Issuer or any
Lender.



The rights provided for in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law, in equity, under any
other instrument, document or agreement or otherwise, whether now existing or hereafter arising.



8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans
have automatically become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall, subject to the provisions of Sections
2.17 and 2.18, be applied by the Administrative Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;


 


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Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and L/C Fees) payable to the Lenders and the L/C
Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the
L/C Issuer and amounts payable under Article III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
L/C Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan
Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth held by them;



Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrowers pursuant to Sections
2.05(c) and 2.17; and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.



ARTICLE IX. ADMINISTRATIVE AGENT




9.01 Appointment and Authorization of the Administrative Agent. Each of the Lenders and the L/C issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof and thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and none of the
Borrowers nor any other Borrower shall have rights as a third party beneficiary of any of such
provisions.



9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it were
not the Administrative Agent and the term “Lender” or “the Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.


 


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9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, the Administrative Agent:



(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable Law;



(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrowers or any of their Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity; and



(d) shall not be liable for any action taken or not taken by it (i) with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice describing such Default is given to the
Administrative Agent by the Borrowers, a Lender or the L/C Issuer. The Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.


 


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9.04 Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrowers), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.



9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub agents
appointed by the Administrative Agent. The 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 Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-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 the Administrative Agent.



9.06 Resignation of the Administrative Agent. The Administrative Agent may at any time resign as Administrative Agent upon thirty (30)
days’ prior notice to the Lenders, the L/C Issuer and the Borrowers. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment prior to the effective date of resignation, then
the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, and in
consultation with the Borrowers, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrowers and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents, and (2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent
as provided for above in this Section. Upon the acceptance of a successor’s appointment as the
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as the
Administrative Agent.


 


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Any resignation by Bank of America as the Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and the Swing Line Lender. Upon the acceptance of a
successor’s appointment as the Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and the Swing Line Lender, (b) the retiring L/C Issuer and the Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.



9.07 Non-Reliance on the Administrative Agent and Other the Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, no Lender holding a title listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.



9.09 The Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Borrower, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or
otherwise;



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and
the Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 10.04) allowed in such judicial proceeding; and




 


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(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04. Nothing contained herein shall
be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



9.10 Release of Borrowers. The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent to release
any Borrower from its obligations under the Loan Documents if such Person ceases to be a Subsidiary
as a result of a transaction permitted hereunder or is designated as an Excluded Subsidiary in
accordance with Section 6.19. Upon request by the Administrative Agent at any time,
subject to the provisions of Section 10.01(g), the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Borrower from its obligations under the Loan
Documents pursuant to this Section 9.10.



ARTICLE X. MISCELLANEOUS




10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and
no consent to any departure by the Borrowers or any other Borrower therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrowers or the applicable Borrower, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:



(a) waive any condition set forth in Section 4.01(a) through (d) without the
written consent of each Lender except that, in the sole discretion of the Administrative Agent,
only a waiver by the Administrative Agent shall be required with respect to immaterial matters or
items noted in any post-closing letter made available to the Lenders with respect to which the
Borrowers have given assurances satisfactory to the Administrative Agent that such items shall
be delivered promptly following the Closing Date;


 


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(b) extend or increase the Revolving Commitment of any Lender (or reinstate any Revolving
Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;



(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments, if any) of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby (it being understood that any vote to rescind acceleration of
amounts owing with respect to the Loans and other Obligations under the Loan Documents shall only
require the approval of the Required Lenders);



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01
with respect to the Fee Letters) any fees or other amounts payable hereunder or under any other
Loan Document, without the written consent of each Lender directly affected thereby except that
only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default
Rate” or to waive any obligation of the Borrowers to pay interest or L/C Fees at the Default Rate
or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to
reduce any fee;



(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



(f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



(g) except as provided in Section 9.10, release the Parent or all or substantially all
of the Borrowers from their Obligations under the Loan Documents without the written consent of
each Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) each Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any

amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Revolving Commitment of any
Defaulting Lender may not be increased or extended without the consent of such Lender, and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that
by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require
the consent of such Defaulting Lender.




 


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Notwithstanding any provision in this Section 10.01 to the contrary but subject to
Section 2.14 (including those matters that may be addressed in a Conforming Amendment
without the requirement for additional consents pursuant to Section 2.14), this Agreement
may be amended with the written consent of the Required Lenders, the Administrative Agent and the
Borrowers (i) to add one or more additional revolving credit or term loan facilities to this
Agreement and to permit the extensions of credit and all related obligations and liabilities
arising in connection therewith from time to time outstanding to share ratably (or on a basis
subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other
Loan Documents with the obligations and liabilities from time to time outstanding in respect of the
existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed
appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing
such additional credit facilities to participate in any required vote or action required to be
approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.



If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to
any Loan Document that requires the consent of each Lender, or requires the consent of each Lender
directly affected by such proposed amendment, waiver, consent or release, and such amendment,
waiver, consent or release has been approved by the Required Lenders or, as applicable, by more
than fifty percent (50%) of the Lenders who would be directly affected by such amendment, waiver,
consent or release, the Borrowers may, with the consent of the Administrative Agent, (x) in the
case of a non-consenting Revolving Lender, reduce such non-consenting Revolving Lender’s Revolving
Commitment on a non-pro-rata basis and repay a proportional amount of the Committed Loans advanced
by such non-consenting Revolving Lender on a non-pro rata basis, (y) in the case of a
non-consenting term loan Lender, repay such non-consenting term loan Lender’s term Loans on a
non-pro-rata basis, or (z) replace such non-consenting Lender in accordance with Section
10.13; provided, that such amendment, waiver, consent or release can be effected as a
result of the assignment contemplated by such Section and/or by such repayment (together with all
other such repayments effected by, or assignments required by, the Borrowers to be made pursuant to
this paragraph).



10.02 Notices; Effectiveness; Electronic Communications.



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



(i) if to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to
the address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 10.02; and



 


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(ii) if to any other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire (including, as appropriate, notices
delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in
effect for the delivery of notices that may contain material non-public information relating to the
Borrowers), as may be updated pursuant to Section 10.02(d).



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



(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer
pursuant to Article II if such Lender or the L/C Issuer, as applicable has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrowers may, in their discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by them, provided that approval of such procedures may be limited to particular
notices or communications. Unless the 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.


 


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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS
OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrowers,
any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such the Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the Borrowers, any Lender, the L/C Issuer
or any other Person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).



(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrowers or their securities for purposes of United States Federal
or state securities laws.



(e) Reliance by the Administrative Agent, L/C Issuer and the Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of a Responsible Officer of the Borrowers even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrowers shall indemnify the Administrative Agent, the L/C Issuer, each
Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on behalf of the
Borrowers, except in the case of any of the foregoing Persons who are seeking indemnification
hereunder, to the extent such reliance resulted from such Person’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction by a final and nonappealable
judgment. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.


 


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10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or under any other Loan Document preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in
connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or the Swing Line Lender, as the case
may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights
in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Borrower under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under
the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to
the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set
forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.



10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender or the L/C


 


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Issuer (including the
reasonable fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer; provided that for any individual
enforcement action or series or related actions, the Borrowers shall not be required to pay legal
fees, charges and disbursements of more than one primary outside counsel and any reasonably
necessary local outside counsel for the Administrative Agent, the Lenders and the L/C Issuer
collectively, unless the representation of all such Persons by one counsel would be inappropriate
due to the existence of an actual or potential conflict of interest, in which case the Borrower
shall also be required to pay the legal fees, charges and disbursements of additional outside
counsel to such conflicted Persons), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



(b) Indemnification by the Borrowers. The Borrowers shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee; provided that for any individual claim or series or related claims, this
indemnity shall only apply to the legal fees, charges and disbursements of one primary outside
counsel and any reasonably necessary local outside counsel for all Indemnitees, unless the
representation of all Indemnitees by one counsel would be inappropriate due to the existence of an
actual or potential conflict of interest, in which case this indemnity shall also apply to the
legal fees, charges and disbursements of additional outside counsel to such conflicted
Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by any third party or
by the Borrowers or any other Borrower arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), or
(iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrowers or any other Borrower, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrowers against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrowers have obtained a final and nonappealable judgment in their favor on such claim as
determined by a court of competent jurisdiction.




 


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(c) Reimbursement by the Lenders. To the extent that the Borrowers for any reason
fail to indefeasibly pay any amount required under subsection (a) or (b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or
any Related Party of any of the foregoing (and without limiting their obligation to do so), each
Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, each of the Borrowers shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.



(e) Payments. All amounts due under this Section shall be payable not later than ten
(10) Business Days after demand therefor.



(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.



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


 


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10.06 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent, the
L/C Issuer and each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance with the provisions of subsection
(b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). 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, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



(b) Assignments by the Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Commitment and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) In the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and




(B) In any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Revolving Commitment (which for this purpose includes Loans
outstanding thereunder) and/or the Outstanding Amount of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrowers
otherwise consent (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has been met.


 


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(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Revolving Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;



(iii) Required Consents. No consent shall be required for any assignment except to
the extent required by clause (b)(i)(B) of this Section and, in addition:




(A) The consent of the Borrowers (not to be unreasonably withheld or delayed) shall be
required unless (x) an Event of Default has occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund; provided that the Borrowers shall be deemed to have consented to any such
assignment unless they object thereto by written notice to the Administrative Agent within
five (5) Business Days after having received notice thereof;




(B) The consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to a Person that is not a
Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;




(C) The consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of the assignee
to participate in exposure under one or more Letters of Credit (whether or not then
outstanding); and




(D) The consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of the Revolving Commitments.



(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that, the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.



(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the
Borrowers or any of their respective Affiliates or Subsidiaries, or (B) to any Defaulting Lender or
any of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause (B),
or (C) to a natural person.


 


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(vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment
shall make such additional payments to the Administrative Agent in an aggregate amount sufficient,
upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including funding, with the
consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its
Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights
and obligations of any Defaulting Lender hereunder shall become effective under applicable Law
without compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving Commitments of, and
principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive
absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, 

 


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notwithstanding notice to the contrary. In addition, the
Administrative Agent shall maintain on the Register information
 regarding the designation, and revocation of designation, of any Lender as a Defaulting
Lender. The Register shall be available for inspection by each of the Borrowers, the L/C Issuer
and the Swing Line Lender, at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or substantive change
to the Loan Documents is pending, any Lender may request and receive from the Administrative Agent
a copy of the Register. Upon its receipt of and, if required, consent to, a duly completed
Assignment and Assumption executed by an assigning Lender and an Eligible Assignee, such Eligible
Assignee’s completed Administrative Questionnaire and any tax forms required by Section
3.01 (unless such assignee is already a Lender), together with the fee payable under
Section 10.06(b)(iii), the Administrative Agent will, on the effective date thereof, record
the Assignment and Assumption on the Register.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or any Borrower or any of the Borrowers’ respective Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the
Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided, that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Administrative Agent, the L/C Issuer
and the Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.



Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 and shall be subject to the mitigation
obligations and replacement pursuant to Section 3.06 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.13 as though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 the Borrowers’ prior written
consent (such consent not be unreasonably withheld or delayed). A Participant shall not be
entitled to the benefits of Section 3.01 unless the Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.01(e) as if it were a Lender.


 


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(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



(g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption 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.



(h) Resignation as L/C Issuer or the Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Revolving Commitment and Committed Loans pursuant to Section 10.06(b), Bank of
America may, (i) upon thirty (30) days’ notice to the Borrowers and the Lenders, resign as L/C
Issuer and/or (ii) upon thirty (30) days’ notice to the Borrowers, resign as Swing Line Lender. In
the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrowers to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may
be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges
and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.



(i) Successor Administrative Agent. The Borrowers shall have the right to approve any
successor Administrative Agent appointed pursuant to Section 9.6 at all times other than
during the existence of an Event of Default (which consent shall not be unreasonably withheld or
delayed). The fees payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed by the Borrowers and such successor.


 


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10.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed, subject to the provisions set forth in
this Section 10.07, (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any Governmental Authority, purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or any Acceding Lender under Section 2.14(c) or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrowers and their obligations, (g) with the consent of the Borrowers or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrowers. For
purposes of this Section, “Information” means all information received from the Parent or
any Subsidiary relating to the Parent, any Subsidiary or any of their respective businesses, other
than any such information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Parent or any Subsidiary,
provided that, in the case of information received from the Parent or any Subsidiary after
the date hereof, such information is clearly identified at the time of delivery as confidential
(other than Information provided under Sections 6.04, 6.13, 6.14,
6.15, 6.18 or 7.14 (i.e., such Information provided under such sections
does not need to be labeled confidential to be treated as confidential)). Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Parent or any Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Securities Laws and state securities Laws.



Notwithstanding the foregoing, unless specifically prohibited by applicable Law or court
order, each of the Administrative Agent, the Lenders, the L/C Issuer and each of their respective
Affiliates shall, prior to disclosure thereof, notify the Borrowers of any request for disclosure
of any such non-public information by any Governmental Authority or representative thereof (other
than any such request in connection with an examination of the Administrative Agent, such
Lender, the L/C Issuer or such Affiliate by such Governmental Authority) or pursuant to legal
process.


 


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The provisions of this Section 10.07 do not apply to any proceedings between the
parties to this Agreement.



10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, after giving prior written notice to the Administrative Agent, to the fullest
extent permitted by applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or
for the credit or the account of the Borrowers or any of them against any and all of the
obligations of the Borrowers now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer or any such Affiliate, irrespective of whether or not
such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrowers may be contingent or unmatured or are owed
to a branch or office of such Lender or the L/C Issuer different from the branch or office holding
such deposit or obligated on such indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.18 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrowers and the
Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.


 


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10.10 Counterparts; Effectiveness. This Agreement and the other Loan Documents may be
executed in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. Except as provided in Section 4.01 or as provided in the applicable Loan
Document, this Agreement or such other Loan Documents shall become effective when they shall have
been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof or thereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and any
other Loan Document by telecopy or other electronic imaging means shall be effective as delivery of
a manually executed counterpart of this Agreement and the other Loan Documents.



10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01 or 3.02, or if any
Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the
Borrowers the right to replace a Lender as a party hereto, then the Borrower may, at their sole
expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an Eligible Assignee that shall assume such obligations (which
Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided,
that:


(a) the Borrowers or Assignee Lender shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b)(iv) unless such assignment fee is waived by
the Administrative Agent in its sole discretion pursuant to Section 10.06(b)(iv);



 


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(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts);



(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




(d) such assignment does not conflict with applicable Laws.



A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.




10.14 Governing Law; Jurisdiction; Etc.



(a) GOVERNING LAW. THIS AGREEMENT AND, EXCEPT AND OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE LOAN DOCUMENTS, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF
NEW YORK (EXCLUDING LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS
LAW SECTIONS 5-1401 AND 5-1402).



(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY HERETO OR ANY OF THEIR PROPERTIES IN
THE COURTS OF ANY JURISDICTION.


 


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(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



10.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



10.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the
Borrowers, which information includes the name and address of each of the Borrowers and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrowers in accordance with the Act. The Borrowers shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” an anti-money laundering rules and regulations, including the Act.


 


114









 





10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each of the Borrowers acknowledges and agrees
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent and the Arrangers are arm’s-length commercial transactions between the
Borrowers and their Affiliates, on the one hand, and the Administrative Agent and the Arrangers on
the other hand, (B) each of the Borrowers has consulted its own legal, accounting, regulatory and
tax advisors to the extent it has deemed appropriate, and (C) each of the Borrowers is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the
Arrangers each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for any of the Borrowers or any of their respective Affiliates, or any other Person
and (B) neither the Administrative Agent nor any Arranger has any obligation to the Borrowers or
any of their Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrowers and their
Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose
any of such interests to the Borrowers or any of their Affiliates. To the fullest extent permitted
by law, each of the Borrowers hereby waive and release any claims that they may have against the
Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby.



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


 


115









 





10.19 Existing Credit Agreement Amended and Restated.



(a) Existing Credit Agreement Amended and Restated. On the Closing Date, this
Agreement shall amend and restate the Existing Credit Agreement in its entirety but, for the
avoidance of doubt, shall not constitute a novation of the parties’ rights and obligations
thereunder. On the Closing Date, the rights and obligations of the parties hereto evidenced by
the Existing Credit Agreement shall be evidenced by this Agreement and the other Loan Documents,
the “Loans” as defined in the Existing Credit Agreement shall remain outstanding and be continued
as, and converted to, Loans as defined herein and the Existing Letters of Credit issued by the L/C
Issuer (as defined in the Existing Credit Agreement) for the account of the Borrowers prior to the
Closing Date shall remain issued and outstanding and shall be deemed to be Letters of Credit under
this Agreement, and shall bear interest and be subject to such other fees as set forth in this
Agreement.



(b) Interest and Fees under Existing Credit Agreement. All interest and fees and
expenses, if any, owing or accruing under or in respect of the Existing Credit Agreement through
the Closing Date (excluding any breakage fees in respect of “Eurodollar Loans” as defined therein
which fees are hereby waived by each Lender hereunder that is a party to the Existing Credit
Agreement) shall be calculated as of the Closing Date (pro-rated in the case of any fractional
periods), and shall be paid on the Closing Date.



[Remainder of Page Intentionally Left Blank.]



 


116









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



BORROWERS:




WASTE CONNECTIONS, INC.

ADVANCED SYSTEMS PORTABLE RESTROOMS, INC.

AMERICAN DISPOSAL COMPANY, INC.

AMERICAN SANITARY SERVICE, INC.

ANDERSON COUNTY LANDFILL, INC.

BITUMINOUS RESOURCES, INC.

BRENT RUN LANDFILL, INC.

BROADACRE LANDFILL, INC.

BUTLER COUNTY LANDFILL, INC.

CAMINO REAL ENVIRONMENTAL CENTER, INC.

CAPITAL REGION LANDFILLS, INC.

CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC.

CHIQUITA CANYON, INC.

COLD CANYON LAND FILL, INC.

COMMUNITY REFUSE DISPOSAL INC.

CONTRACTORS WASTE SERVICES, INC.

CORRAL DE PIEDRA LAND COMPANY

COUNTY WASTE AND RECYCLING SERVICE, INC.

COUNTY WASTE TRANSFER CORP.

CURRY TRANSFER & RECYCLING, INC.

D. M. DISPOSAL CO., INC.

DENVER REGIONAL LANDFILL, INC.

ELKO SANITATION COMPANY

EMPIRE DISPOSAL, INC.

ENVIRONMENTAL TRUST COMPANY

EVERGREEN DISPOSAL, INC.

FINNEY COUNTY LANDFILL, INC.

FRONT RANGE LANDFILL, INC.

G & P DEVELOPMENT, INC.

HAROLD LEMAY ENTERPRISES, INCORPORATED

HIGH DESERT SOLID WASTE FACILITY, INC.

HUDSON VALLEY WASTE HOLDING, INC.

ISLAND DISPOSAL, INC.




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Worthing F. Jackman
 

	 	 
	 

	 	Name:
	 	Worthing F. Jackman	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






(Signature Page to Credit Agreement)



 


S-1









 







BORROWERS:




J BAR J LAND, INC.

LAKESHORE DISPOSAL, INC.

LEALCO, INC.

LFC, INC.

MADERA DISPOSAL SYSTEMS, INC.

MAMMOTH DISPOSAL COMPANY

MANAGEMENT ENVIRONMENTAL NATIONAL, INC.

MASON COUNTY GARBAGE CO., INC.

MDSI OF LA, INC.

MILLENNIUM WASTE INCORPORATED

MISSION COUNTRY DISPOSAL

MORRO BAY GARBAGE SERVICE

MURREY’S DISPOSAL COMPANY, INC.

NEBRASKA ECOLOGY SYSTEMS, INC.

NOBLES COUNTY LANDFILL, INC.

NORTHERN PLAINS DISPOSAL, INC.

NORTHWEST CONTAINER SERVICES, INC.

OKLAHOMA CITY WASTE DISPOSAL, INC.

OKLAHOMA LANDFILL HOLDINGS, INC.

OSAGE LANDFILL, INC.

POTRERO HILLS LANDFILL, INC.

PSI ENVIRONMENTAL SERVICES, INC.

PSI ENVIRONMENTAL SYSTEMS, INC.

PUEBLO SANITATION, INC.

R.A. BROWNRIGG INVESTMENTS, INC.

R.J.C. TRUCKING CO.

RED CARPET LANDFILL, INC.

RH FINANCIAL CORPORATION

RKS HOLDING, CORP.

RURAL WASTE MANAGEMENT, INC.

SAN LUIS GARBAGE COMPANY

SANIPAC, INC.

SCOTT SOLID WASTE DISPOSAL COMPANY

SEABREEZE RECOVERY, INC.

SEDALIA LAND COMPANY

SOUTH COUNTY SANITARY SERVICE, INC.

SOUTHERN PLAINS DISPOSAL, INC.

STUTZMAN REFUSE DISPOSAL INC.

TACOMA RECYCLING COMPANY, INC.

TENNESSEE WASTE MOVERS, INC.

WASCO COUNTY LANDFILL, INC.




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Worthing F. Jackman
 

	 	 
	 

	 	Name:
	 	Worthing F. Jackman	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






(Signature Page to Credit Agreement)





 


S-2









 







BORROWERS:




WASTE CONNECTIONS MANAGEMENT SERVICES, INC.

WASTE CONNECTIONS OF ALABAMA, INC.

WASTE CONNECTIONS OF ARIZONA, INC.

WASTE CONNECTIONS OF ARKANSAS, INC.

WASTE CONNECTIONS OF CALIFORNIA, INC.

WASTE CONNECTIONS OF COLORADO, INC.

WASTE CONNECTIONS OF GEORGIA, INC.

WASTE CONNECTIONS OF IDAHO, INC.

WASTE CONNECTIONS OF ILLINOIS, INC.

WASTE CONNECTIONS OF IOWA, INC.

WASTE CONNECTIONS OF KANSAS, INC.

WASTE CONNECTIONS OF KENTUCKY, INC.

WASTE CONNECTIONS OF LOUISIANA, INC.

WASTE CONNECTIONS OF MINNESOTA, INC.

WASTE CONNECTIONS OF MISSISSIPPI, INC.

WASTE CONNECTIONS OF MONTANA, INC.

WASTE CONNECTIONS OF NEBRASKA, INC.

WASTE CONNECTIONS OF NEW MEXICO, INC.

WASTE CONNECTIONS OF NORTH CAROLINA, INC.

WASTE CONNECTIONS OF OKLAHOMA, INC.

WASTE CONNECTIONS OF OREGON, INC.

WASTE CONNECTIONS OF SOUTH CAROLINA, INC.

WASTE CONNECTIONS OF SOUTH DAKOTA, INC.

WASTE CONNECTIONS OF TENNESSEE, INC.

WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC.

WASTE CONNECTIONS OF UTAH, INC.

WASTE CONNECTIONS OF WASHINGTON, INC.

WASTE CONNECTIONS OF WYOMING, INC.

WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.

WASTE SERVICES OF N.E. MISSISSIPPI, INC.

WCI-WHITE OAKS LANDFILL, INC.

WEST BANK ENVIRONMENTAL SERVICES, INC.

WEST COAST RECYCLING AND TRANSFER, INC.

WYOMING ENVIRONMENTAL SERVICES, INC.

WYOMING ENVIRONMENTAL SYSTEMS, INC.

YAKIMA WASTE SYSTEMS, INC.




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Worthing F. Jackman
 

	 	 
	 

	 	Name:
	 	Worthing F. Jackman	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






(Signature Page to Credit Agreement)




 


S-3









 







	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 	 	 
	 	 	CARPENTER WASTE HOLDINGS, LLC
	 	 	COUNTY WASTE — ULSTER, LLC
	 	 	FORT ANN TRANSFER STATION, LLC
	 	 	SIERRA HOLDING GROUP, LLC
	 	 	STERLING AVENUE PROPERTIES, LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC.,

its sole member and manager
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Worthing F. Jackman
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman
	 	 	 	 	Title:	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 
	 	 	CLIFTON ORGANICS, LLC

SIERRA PROCESSING, LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	SIERRA HOLDING GROUP, LLC, its manager
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC., its sole member and
manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS OF TEXAS, LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES, INC., its sole manager
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Worthing F. Jackman
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman
	 	 	 	 	Title:	 	Chief Financial Officer






(Signature Page to Credit Agreement)




 


S-4









 







	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 	 	 
	 	 	EL PASO DISPOSAL, LP
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF TEXAS, LLC, its sole general partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES, INC., its sole manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 
	 	 	DELTA CONTRACTS, LLC
	 	 	LACASSINE HOLDINGS, L.L.C
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF LOUISIANA, INC., its sole member and manager
	 
	 	 	 	 	By:	 	/s/ Worthing F. Jackman
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman
	 	 	 	 	Title:	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 
	 	 	MBO, LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	LACASSINE HOLDINGS, L.L.C., its sole member and
manager
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS OF LOUISIANA, INC., its
sole member and manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer






(Signature Page to Credit Agreement)






 


S-5









 







	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 
	 	 	ANDERSON REGIONAL LANDFILL, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	ANDERSON COUNTY LANDFILL, INC., its sole member
and manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	DIVERSIFIED BUILDINGS, L.L.C.
	 
	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF KANSAS, INC., its sole
member and manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	WASTE REDUCTION SERVICES, L.L.C.
	 
	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF OREGON, INC., its sole
member and manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	CHIQUITA CANYON, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	CHIQUITA CANYON, INC., its sole member and manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer






(Signature Page to Credit Agreement)





 


S-6









 







	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 
	 	 	COLUMBIA RESOURCE CO., L.P.
	 	 	FINLEY-BUTTES LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 
	 	 	By:	 	MANAGEMENT ENVIRONMENTAL NATIONAL, INC.,
its sole general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	HORIZON PROPERTY MANAGEMENT, LLC
	 	 	PIERCE COUNTY RECYCLING, COMPOSTING

    AND DISPOSAL, LLC
	 	 	RAILROAD AVENUE DISPOSAL, LLC
	 	 	SCOTT WASTE SERVICES, LLC
	 	 	SILVER SPRINGS ORGANICS L.L.C.
	 	 	THE TRASH COMPANY, LLC
	 	 	VOORHEES SANITATION, L.L.C.
	 	 	WASTE SOLUTIONS GROUP OF SAN BENITO, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	LAUREL RIDGE LANDFILL, L.L.C.
	 	 	WASTE CONNECTIONS OF MISSISSIPPI DISPOSAL

     SERVICES, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its managing member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS OF LEFLORE, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Worthing F. Jackman
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman
	 

	 	 	 	Title:
	 	Chief Financial Officer






(Signature Page to Credit Agreement)







 


S-7









 







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

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



(Signature Page to Credit Agreement)





 


 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Revolving 
Lender, L/C Issuer and Swing Line Lender
 	 
	 	By:  	/s/ Maria F. Maia
 	 
	 	 	Name:  	Maria F. Maia 	 
	 	 	Title:  	Managing Director 	 
	 



(Signature Page to Credit Agreement)





 


 









 







	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Keith Winzenried
 	 
	 	 	Name:  	Keith Winzenried 	 
	 	 	Title:  	Credit Executive 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement






 


 









 







	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as a Lender

 	 
	 	By:  	/s/  Hamid Hussain
 	 
	 	 	Name:  Hamid Hussain
	 
	 	 	Title:  	Senior Vice President	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement






 


 









 







	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Kathryn M. McAndrew
 	 
	 	 	Name:  	Kathryn M. McAndrew 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement







 


 









 







	 	 	 	 	 
	 	UNION BANK, as a Lender

 	 
	 	By:  	/s/ Sandra Cortes
 	 
	 	 	Name:  	Sandra Cortes 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/  Edward D. Herko
 	 
	 	 	Name:  	Edward D. Herko 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	     /s/ Ross Levitsky
 	 
	 	 	Name:  	Ross Levitsky 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Frank J. Jancar
 	 
	 	 	Name:  	Frank J. Jancar 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	COMPASS BANK, as a Lender

 	 
	 	By:  	/s/ Scott Brewer
 	 
	 	 	Name:  	Scott Brewer 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Mark B. Grover
 	 
	 	 	Name:  	Mark B. Grover 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	PNC Bank, National Association, as a Revolving Lender

 	 
	 	By:  	/s/ Philip K. Liebscher
 	 
	 	 	Name:  	Philip K. Liebscher 	 
	 	 	Title:  	Senior Vice President 	 
	 



(Signature
Page to  Credit Agreement)








 


 









 







	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORPORATION, as a Lender

 	 
	 	By:  	/s/  David W. Kee
 	 
	 	 	Name:  	David W. Kee 	 
	 	 	Title:  	Joint General Manager 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	COBANK, ACB, as a Lender

 	 
	 	By:  	/s/  David Dornbirer
 	 
	 	 	Name:  	David Dornbirer 	 
	 	 	Title:  	VP 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	BANK OF THE WEST, as a Lender

 	 
	 	By:  	/s/ Edward Unwin
 	 
	 	 	Name:  	Edward Unwin 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to BOA/Waste Connecitons, Inc. Credit Agreement








 


 









 







	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



SCHEDULE 1




Subsidiaries of the Parent




	 	 	 
	 	 	Jurisdiction of
	Name of Subsidiary	 	Organization
	ADVANCED SYSTEMS PORTABLE RESTROOMS, INC.

	 	Oregon
	 
	 	 
	AMERICAN DISPOSAL COMPANY, INC.

	 	Washington
	 
	 	 
	AMERICAN SANITARY SERVICE, INC.

	 	Oregon
	 
	 	 
	ANDERSON COUNTY LANDFILL, INC.

	 	Delaware
	 
	 	 
	ANDERSON REGIONAL LANDFILL, LLC

	 	Delaware
	 
	 	 
	BITUMINOUS RESOURCES, INC.

	 	Kentucky
	 
	 	 
	BRENT RUN LANDFILL, INC.

	 	Delaware
	 
	 	 
	BROADACRE LANDFILL, INC.

	 	Colorado
	 
	 	 
	BUTLER COUNTY LANDFILL, INC.

	 	Nebraska
	 
	 	 
	CAMINO REAL ENVIRONMENTAL CENTER, INC.

	 	New Mexico
	 
	 	 
	CAPITAL REGION LANDFILLS, INC.

	 	New York
	 
	 	 
	CARPENTER WASTE HOLDINGS, LLC

	 	New York
	 
	 	 
	CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC.

	 	North Carolina
	 
	 	 
	CHIQUITA CANYON, INC.

	 	Delaware
	 
	 	 
	CHIQUITA CANYON, LLC

	 	Delaware
	 
	 	 
	CLIFTON ORGANICS, LLC

	 	New York
	 
	 	 
	COLD CANYON LAND FILL, INC.

	 	California
	 
	 	 
	COLUMBIA RESOURCE CO., L.P.

	 	Washington
	 
	 	 
	COMMUNITY REFUSE DISPOSAL INC.

	 	Nebraska
	 
	 	 
	CONTRACTORS WASTE SERVICES, INC.

	 	Kentucky
	 
	 	 
	CORRAL DE PIEDRA LAND COMPANY

	 	California
	 
	 	 
	COUNTY WASTE — ULSTER, LLC

	 	New York
	 
	 	 
	COUNTY WASTE AND RECYCLING SERVICE, INC.

	 	New York
	 
	 	 
	COUNTY WASTE TRANSFER CORP.

	 	New York
	 
	 	 
	CURRY TRANSFER & RECYCLING, INC.

	 	Oregon
	 
	 	 
	D. M. DISPOSAL CO., INC.

	 	Washington
	 
	 	 
	DELTA CONTRACTS, LLC

	 	Delaware
	 
	 	 
	DENVER REGIONAL LANDFILL, INC.

	 	Colorado
	 
	 	 
	DIVERSIFIED BUILDINGS, L.L.C.

	 	Kansas
	 
	 	 
	EL PASO DISPOSAL, LP

	 	Texas
	 
	 	 
	ELKO SANITATION COMPANY

	 	Nevada





 


 









 





	 	 	 
	 	 	Jurisdiction of
	Name of Subsidiary	 	Organization
	EMPIRE DISPOSAL, INC.

	 	Washington
	 
	 	 
	ENVIRONMENTAL TRUST COMPANY

	 	Tennessee
	 
	 	 
	EVERGREEN DISPOSAL, INC.

	 	Montana
	 
	 	 
	FINLEY-BUTTES LIMITED PARTNERSHIP

	 	Oregon
	 
	 	 
	FINNEY COUNTY LANDFILL, INC.

	 	Delaware
	 
	 	 
	FORT ANN TRANSFER STATION, LLC

	 	New York
	 
	 	 
	FRONT RANGE LANDFILL, INC.

	 	Delaware
	 
	 	 
	G & P DEVELOPMENT, INC.

	 	Nebraska
	 
	 	 
	HAROLD LEMAY ENTERPRISES, INCORPORATED

	 	Washington
	 
	 	 
	HIGH DESERT SOLID WASTE FACILITY, INC.

	 	New Mexico
	 
	 	 
	HORIZON PROPERTY MANAGEMENT, LLC

	 	Colorado
	 
	 	 
	HUDSON VALLEY WASTE HOLDING, INC.

	 	Delaware
	 
	 	 
	ISLAND DISPOSAL, INC.

	 	Washington
	 
	 	 
	J BAR J LAND, INC.

	 	Nebraska
	 
	 	 
	LACASSINE HOLDINGS, L.L.C.

	 	Louisiana
	 
	 	 
	LAKESHORE DISPOSAL, INC.

	 	Idaho
	 
	 	 
	LAUREL RIDGE LANDFILL, L.L.C.

	 	Delaware
	 
	 	 
	LEALCO, INC.

	 	Texas
	 
	 	 
	LFC, INC.

	 	Delaware
	 
	 	 
	MADERA DISPOSAL SYSTEMS, INC.

	 	California
	 
	 	 
	MAMMOTH DISPOSAL COMPANY

	 	California
	 
	 	 
	MANAGEMENT ENVIRONMENTAL NATIONAL, INC.

	 	Washington
	 
	 	 
	MASON COUNTY GARBAGE CO., INC.

	 	Washington
	 
	 	 
	MBO, LLC

	 	Delaware
	 
	 	 
	MDSI OF LA, INC.

	 	California
	 
	 	 
	MILLENNIUM WASTE INCORPORATED

	 	Indiana
	 
	 	 
	MISSION COUNTRY DISPOSAL

	 	California
	 
	 	 
	MORRO BAY GARBAGE SERVICE

	 	California
	 
	 	 
	MURREY’S DISPOSAL COMPANY, INC.

	 	Washington
	 
	 	 
	NEBRASKA ECOLOGY SYSTEMS, INC.

	 	Nebraska
	 
	 	 
	NOBLES COUNTY LANDFILL, INC.

	 	Minnesota
	 
	 	 
	NORTHERN PLAINS DISPOSAL, INC.

	 	Delaware
	 
	 	 
	NORTHWEST CONTAINER SERVICES, INC.

	 	Oregon
	 
	 	 
	OKLAHOMA CITY WASTE DISPOSAL, INC.

	 	Oklahoma
	 
	 	 
	OKLAHOMA LANDFILL HOLDINGS, INC.

	 	Delaware
	 
	 	 
	OSAGE LANDFILL, INC.

	 	Oklahoma





 


 









 





	 	 	 
	 	 	Jurisdiction of
	Name of Subsidiary	 	Organization
	PIERCE COUNTY RECYCLING, COMPOSTING AND DISPOSAL,
LLC

	 	Washington
	 
	 	 
	POTRERO HILLS LANDFILL, INC.

	 	California
	 
	 	 
	PSI ENVIRONMENTAL SERVICES, INC.

	 	Indiana
	 
	 	 
	PSI ENVIRONMENTAL SYSTEMS, INC.

	 	Indiana
	 
	 	 
	PUEBLO SANITATION, INC.

	 	Colorado
	 
	 	 
	R.A. BROWNRIGG INVESTMENTS, INC.

	 	Oregon
	 
	 	 
	R.J.C. TRUCKING CO.

	 	Oregon
	 
	 	 
	RAILROAD AVENUE DISPOSAL, LLC

	 	Delaware
	 
	 	 
	RED CARPET LANDFILL, INC.

	 	Oklahoma
	 
	 	 
	RH FINANCIAL CORPORATION

	 	Washington
	 
	 	 
	RKS HOLDING, CORP.

	 	New York
	 
	 	 
	RURAL WASTE MANAGEMENT, INC.

	 	Oklahoma
	 
	 	 
	SAN LUIS GARBAGE COMPANY

	 	California
	 
	 	 
	SANIPAC, INC.

	 	Oregon
	 
	 	 
	SCOTT SOLID WASTE DISPOSAL COMPANY

	 	Tennessee
	 
	 	 
	SCOTT WASTE SERVICES, LLC

	 	Kentucky
	 
	 	 
	SEABREEZE RECOVERY, INC.

	 	Delaware
	 
	 	 
	SEDALIA LAND COMPANY

	 	Colorado
	 
	 	 
	SIERRA HOLDING GROUP, LLC

	 	New York
	 
	 	 
	SIERRA PROCESSING, LLC

	 	New York
	 
	 	 
	SILVER SPRINGS ORGANICS L.L.C.

	 	Washington
	 
	 	 
	SOUTH COUNTY SANITARY SERVICE, INC.

	 	California
	 
	 	 
	SOUTHERN PLAINS DISPOSAL, INC.

	 	Delaware
	 
	 	 
	STERLING AVENUE PROPERTIES, LLC

	 	New York
	 
	 	 
	STUTZMAN REFUSE DISPOSAL INC.

	 	Kansas
	 
	 	 
	TACOMA RECYCLING COMPANY, INC.

	 	Washington
	 
	 	 
	TENNESSEE WASTE MOVERS, INC.

	 	Delaware
	 
	 	 
	THE TRASH COMPANY, LLC

	 	Colorado
	 
	 	 
	VOORHEES SANITATION, L.L.C.

	 	Idaho
	 
	 	 
	WASCO COUNTY LANDFILL, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS MANAGEMENT SERVICES, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF ALABAMA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF ARIZONA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF ARKANSAS, INC.

	 	Delaware





 


 









 





	 	 	 
	 	 	Jurisdiction of
	Name of Subsidiary	 	Organization
	WASTE CONNECTIONS OF CALIFORNIA, INC.

	 	California
	 
	 	 
	WASTE CONNECTIONS OF COLORADO, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF GEORGIA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF IDAHO, INC.

	 	Indiana
	 
	 	 
	WASTE CONNECTIONS OF ILLINOIS, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF IOWA, INC.

	 	Iowa
	 
	 	 
	WASTE CONNECTIONS OF KANSAS, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF KENTUCKY, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF LEFLORE, LLC

	 	Mississippi
	 
	 	 
	WASTE CONNECTIONS OF LOUISIANA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF MINNESOTA, INC.

	 	Minnesota
	 
	 	 
	WASTE CONNECTIONS OF MISSISSIPPI DISPOSAL
SERVICES, LLC

	 	Mississippi
	 
	 	 
	WASTE CONNECTIONS OF MISSISSIPPI, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF MONTANA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF NEBRASKA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF NEW MEXICO, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF NORTH CAROLINA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF OKLAHOMA, INC.

	 	Oklahoma
	 
	 	 
	WASTE CONNECTIONS OF OREGON, INC.

	 	Oregon
	 
	 	 
	WASTE CONNECTIONS OF SOUTH CAROLINA, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF SOUTH DAKOTA, INC.

	 	South Dakota
	 
	 	 
	WASTE CONNECTIONS OF TENNESSEE, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF TEXAS, LLC

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC.

	 	California
	 
	 	 
	WASTE CONNECTIONS OF UTAH, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS OF WASHINGTON, INC.

	 	Washington
	 
	 	 
	WASTE CONNECTIONS OF WYOMING, INC.

	 	Delaware
	 
	 	 
	WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.

	 	Oregon
	 
	 	 
	WASTE REDUCTION SERVICES, L.L.C.

	 	Oregon
	 
	 	 
	WASTE SERVICES OF N.E. MISSISSIPPI, INC.

	 	Mississippi
	 
	 	 
	WASTE SOLUTIONS GROUP OF SAN BENITO, LLC

	 	Delaware
	 
	 	 
	WCI-WHITE OAKS LANDFILL, INC.

	 	Delaware
	 
	 	 
	WEST BANK ENVIRONMENTAL SERVICES, INC.

	 	Indiana
	 
	 	 
	WEST COAST RECYCLING AND TRANSFER, INC.

	 	Oregon
	 
	 	 
	WYOMING ENVIRONMENTAL SERVICES, INC.

	 	Indiana





 


 









 





	 	 	 
	 	 	Jurisdiction of
	Name of Subsidiary	 	Organization
	WYOMING ENVIRONMENTAL SYSTEMS, INC.

	 	Indiana
	 
	 	 
	YAKIMA WASTE SYSTEMS, INC.

	 	Washington






Excluded Subsidiaries




	 	 	 
	 	 	Jurisdiction of
	Name of Excluded Subsidiary	 	Organization
	ECOSORT, L.L.C.

	 	Oregon
	 
	 	 
	RUSSELL SWEEPERS, LLC

	 	New York
	 
	 	 
	WEST VALLEY COLLECTION & RECYCLING, LLC

	 	New York






 


 









 







SCHEDULE 1.01A




Existing Letters of Credit




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Type	 	LC #	 	Issue Date	 	Exp Date	 	Applicant Name	 	Beneficiary Name	 	US $ Amount	 
	SBYFIN
	 	1415387	 	4/1/2005	 	8/1/2011	 	WASTE CONNECTIONS IN	 	UNITED STATES FIDELI	 	$	1,800,000.00	 
	SBYFIN
	 	1438655	 	4/1/2005	 	11/11/2011	 	WASTE CONNECTIONS OF	 	BNY WESTERN TRUST CO	 	$	375,473.97	 
	SBYFIN
	 	1439866	 	4/1/2005	 	11/30/2011	 	WASTE CONNECTIONS OF	 	BNY WESTERN TRUST CO	 	$	348,171.72	 
	SBYFIN
	 	1439867	 	4/1/2005	 	11/30/2011	 	WASTE CONNECTIONS OF	 	BNY WESTERN TRUST CO	 	$	3,551,609.13	 
	SBYFIN
	 	3074216	 	4/1/2005	 	8/1/2011	 	HAROLD LEMAY ENTERPR	 	THE CITY OF CENTRALI	 	$	100,000.00	 
	SBYFIN
	 	50061847	 	4/1/2005	 	6/16/2012	 	MADERA DISPOSAL SYST	 	BNY WESTERN TRUST CO	 	$	1,828,998.00	 
	SBYFIN
	 	68005718	 	4/6/2005	 	3/7/2012	 	999 HAROLD LEMAY ENT	 	U.S. BANK NATIONAL A	 	$	2,151,364.38	 
	SBYFIN
	 	68005720	 	4/6/2005	 	3/7/2012	 	999 HAROLD LEMAY ENT	 	U.S. BANK NATIONAL A	 	$	16,126,397.26	 
	SBYFIN
	 	68016802	 	1/16/2007	 	12/31/2011	 	MAMMOTH DISPOSAL COM	 	COUNTY OF MONO	 	$	10,000.00	 
	SBYFIN
	 	68019616	 	7/12/2007	 	7/12/2011	 	WASTE CONNECTIONS IN	 	THE BANK OF NEW YORK	 	$	15,678,356.16	 
	SBYPER
	 	68026728	 	4/10/2009	 	4/8/2012	 	CHIQUITA CANYON INC.	 	COUNTY OF LOS ANGELE	 	$	1,000,000.00	 
	SBYPER
	 	68026729	 	4/10/2009	 	4/9/2012	 	CHIQUITA CANYON INC.	 	COUNTY OF LOS ANGELE	 	$	1,000,000.00	 
	SBYFIN
	 	68026730	 	4/10/2009	 	4/10/2012	 	CHIQUITA CANYON INC.	 	COUNTY OF LA DEPT OF	 	$	10,000.00	 
	SBYFIN
	 	68026732	 	5/6/2009	 	5/6/2012	 	WASTE CONNECTIONS IN	 	ACE AMERICAN INSURAN	 	$	38,678,000.00	 
	SBYPER
	 	68026733	 	11/20/2009	 	12/1/2011	 	WASTE CONNECTIONS OF	 	THE CITY OF DERBY (“	 	$	1,470,763.80	 
	SBYPER
	 	68026735	 	2/19/2010	 	2/15/2012	 	SEDELIA LAND COMPANY	 	THE BOARD OF COUNTY	 	$	44,750.00	 
	SBYFIN
	 	68026736	 	10/29/2010	 	11/1/2011	 	WASTE CONNECTIONS OF	 	CITY OF HUTCHINSON,	 	$	100,000.00	 
	SBYPER
	 	68036578	 	2/24/2011	 	2/23/2012	 	WASTE CONNECTIONS OF	 	KANSAS DEPARTMENT OF	 	$	1,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	Total	 	$	84,274,884.42	 






 


 









 







SCHEDULE 1.01B




Covenanted Senior Debt




Pursuant to the terms and conditions of that certain Master Note Purchase Agreement, dated July 15,
2008, by and among certain of the Borrowers and certain accredited institutional investors, as
amended, including the First and Second Supplements thereto, the following senior unsecured notes
are issued and outstanding:




	 	1.	 	$175,000,000 of 6.22% Senior Notes due 2015

	 
	 	2.	 	$175,000,000 of 5.25% Senior Notes due 2019

	 
	 	3.	 	$100,000,000 of 3.30% Senior Notes due 2016, $50,000,000 of 4.00% Senior Notes due 2018,
and $100,000,000 of 4.64% Senior Notes due 2021






 


 









 







SCHEDULE 2.01




Commitments and Applicable Percentages




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolving Commitment	 	 	Revolving Percentage	 
	Bank of America, N.A.
	 	$	180,000,000	 	 	 	15.000000000	%
	JPMorgan Chase Bank, N.A.
	 	$	180,000,000	 	 	 	15.000000000	%
	Wells Fargo Bank, National Association
	 	$	180,000,000	 	 	 	15.000000000	%
	U.S. Bank National Association
	 	$	125,000,000	 	 	 	10.416666667	%
	Union Bank, N.A.
	 	$	100,000,000	 	 	 	8.333333333	%
	Deutsche Bank AG New York Branch
	 	$	80,000,000	 	 	 	6.666666667	%
	KeyBank National Association
	 	$	65,000,000	 	 	 	5.416666667	%
	BBVA Compass
	 	$	65,000,000	 	 	 	5.416666667	%
	BB&T Corporation
	 	$	50,000,000	 	 	 	4.166666667	%
	PNC Bank, National Association
	 	$	50,000,000	 	 	 	4.166666667	%
	Sumitomo Mitsui Banking Corporation
	 	$	50,000,000	 	 	 	4.166666667	%
	CoBank, ACB
	 	$	50,000,000	 	 	 	4.166666667	%
	Bank of the West
	 	$	25,000,000	 	 	 	2.083333333	%
	TOTAL
	 	$	1,200,000,000	 	 	 	100.000000000	%





 


 









 





SCHEDULE 5.07




Litigation




None.



 


 









 





SCHEDULE 5.16




Environmental Matters




None.



 


 









 





SCHEDULE 5.17




Related Party Transactions




None.



 


 









 





SCHEDULE 6.07




Permitted Self-Insurance




Deductible levels in the Borrowers’ high deductible insurance program are listed below:



	 	 	 	 	 
	Automobile Liability Insurance
	 	$	2,000,000.00	 
	Workers’ Compensation and Employer’s Liability Insurance
	 	$	1,500,000.00	 
	General Liability Insurance
	 	$	1,000,000.00	 
	Pollution Legal Liability (PLL) Insurance
	 	$	250,000.00	 
	Employment Practices Liability
	 	$	250,000.00	 
	Employee Group Health Insurance
	 	$	250,000.00	 
	All-Risk Property Insurance
	 	$	25,000.00	 






 


 









 







SCHEDULE 7.01




Existing Indebtedness




	 	 	 	 	 	 	 
	 	 	 	 	Outstanding	 
	Lender	 	Borrower	 	Balance	 
	California Pollution Control Financing Authority
	 	Waste Connections, Inc.	 	 	15,500,000	 
	California Pollution Control Financing Authority
	 	Madera Disposal Systems, Inc.	 	 	1,800,000	 
	California Pollution Control Financing Authority
	 	Waste Connections of California, Inc.	 	 	3,305,000	 
	California Pollution Control Financing Authority
	 	Waste Connections of California, Inc.	 	 	370,000	 
	California Pollution Control Financing Authority
	 	Waste Connections, Inc.	 	 	320,000	 
	Washington Economic Development Finance Authority
	 	Harold LeMay Enterprises, Incorporated	 	 	15,930,000	 
	Washington Economic Development Finance Authority
	 	Harold LeMay Enterprises, Incorporated	 	 	2,120,000	 
	Leonard L. Webster & Phyllis M. Webster
	 	Waste Connections, Inc.	 	 	233,645	 
	SEI Solid Waste, Inc.
	 	Waste Connections of California, Inc.	 	 	971,350	 
	Steven M. and Jan M. Popple
	 	Waste Connections of Nebraska, Inc.	 	 	41,659	 
	Michael L. Zupan
	 	Waste Connections of Colorado, Inc.	 	 	507,112	 
	John Delva & Marguerite Delva
	 	Sedelia Land Company	 	 	132,059	 
	Laura J. Long
	 	LeMay Enterprises, Inc.	 	 	1,005,850	 
	Antonio M. Totorica
	 	Lakeshore Disposal, Inc.	 	 	71,753	 
	Brenda Totorica
	 	Lakeshore Disposal, Inc.	 	 	71,753	 
	Craig and Linda Van Bockern
	 	Waste Connections of South Dakota, Inc.	 	 	261,022	 
	Northmarq Capital, Inc.
	 	Waste Connections, Inc.	 	 	1,239,893	 
	Statzman Trusts
	 	Waste Connections of Kansas, Inc.	 	 	5,000,000	 
	Paul and Brenda Pennington
	 	Waste Connections of Tennessee, Inc.	 	 	957,739	 
	Blue Star Holdings, Inc.
	 	Waste Connections, Inc.	 	 	1,132,867	 
	Private Placement Senior Note Holders
	 	Waste Connections, Inc.	 	 	175,000,000	 
	Private Placement Senior Note Holders
	 	Waste Connections, Inc.	 	 	175,000,000	 





 


 









 





	 	 	 	 	 	 	 
	 	 	 	 	Outstanding	 
	Lender	 	Borrower	 	Balance	 
	Private Placement Senior Note Holders
	 	Waste Connections, Inc.	 	 	250,000,000	 
	Financial Federal Credit Inc.
	 	Sanipac, Inc.	 	 	197,471	 
	 
	 	 	 	 	 
	 
	 	 	 	 	651,169,173	 
	 
	 	 	 	 	 







 


 











 




SCHEDULE 7.02




Existing Liens





	1.	 	Parent’s investment in Evergreen National Indemnity Company ($5,000,000) is posted as
security to support surety and performance bonds issued by Evergreen on behalf of the
Borrowers.







	2.	 	Liens Securing Indebtedness Listed on Schedule 7.01






	 	 	 	 	 
	COMPANY	 	SECURED PARTY	 	COLLATERAL
	SEDELIA LAND COMPANY

	 	John Delva & Marguerite
Delva
	 	Deed of Trust over
Sedelia Landfil
	 
	 	 	 	 
	WASTE CONNECTIONS, INC.

	 	Northmarq Capital, Inc.
	 	Land and
Improvements
	 
	 	 	 	 
	WASTE CONNECTIONS OF
TENNESSEE, INC.

	 	Paul and Brenda Pennington
	 	Deed of Trust
	 
	 	 	 	 
	LAKESHORE DISPOSAL, INC.

	 	Antonio M. Totorica
	 	All Assets and
Vehicles
	 
	 	 	 	 
	LAKESHORE DISPOSAL, INC.

	 	Brenda Totorica
	 	All Assets and
Vehicles







	3.	 	Other Liens






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	COLUMBIA RESOURCE CO., L.P.

	 	WA
	 	Dell Financial Services L.L.C.
	 	2003-265-9726-4

09/2003
	 	Specific leased
computer equipment





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	 

	 	 	 	Dell Financial Services, L.L.C.
	 	2003-276-3578-1

10/03/2003
	 	Specific leased
computer equipment
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Dell Financial Services, L.L.C.
	 	2003-280-4224-3

10/07/2003
	 	Specific leased
computer equipment
	 
	 	 	 	 	 	 	 	 
	EMPIRE DISPOSAL, INC.

	 	WA
	 	Kenworth Sales Co. Spokane
	 	2010-228-9183-0

08/16/2010
	 	Specific equipment
and inventory
	 
	 	 	 	 	 	 	 	 
	FINLEY-BUTTES LIMITED PARTNERSHIP

	 	OR
	 	Les Schwab Tire Centers of
Portland, Inc.
	 	8660664

11/16/2010
	 	Goods and proceeds
purchased from
Secured Party by
Debtor
	 
	 	 	 	 	 	 	 	 
	LACASSINE HOLDINGS, L.L.C.

	 	LA
	 	CNH Capital America LLC
	 	117-1327329

06/06/2008
	 	Specific Leased
Equipment (Kobelc
Excavator)
	 
	 	 	 	 	 	 	 	 
	LAKESHORE DISPOSAL, INC.

	 	ID
	 	Fluid Connector Products, Inc.
	 	2010-1079717-3

06/07/2010
	 	Specific Tools
Loaned to Debtor
	 
	 	 	 	 	 	 	 	 
	MURREY’S DISPOSAL COMPANY, INC.

	 	WA
	 	Lakeland Bank Equipment
Leasing Division
	 	2006-229-6520-0

08/15/2006
	 	Specific Leased
Equipment pursuant
to a certain Lease
Agreement
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Associated Petroleum Products,
Inc.
	 	2008-168-2648-5

06/16/2008
	 	Rectangular Tank
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	[Benjamin Menczer
	 	2009-13306772-0

05/13/2009
	 	All Assets]
	 
	 	 	 	 	 	 	 	 
	POTRERO HILLS LANDFILL, INC.

	 	CA
	 	United Rentals Northwest, Inc.
	 	08-7142219569

01/03/2008
	 	Towable Light Tower





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	 

	 	 	 	United Rentals Northwest, Inc.
	 	08-7142220591

01/03/2008
	 	Trash Pump
	 
	 	 	 	 	 	 	 	 
	RURAL WASTE MANAGEMENT, INC.

	 	OK
	 	SPC Leasing, Inc.
	 	2007014142425

12/04/2007
	 	Copier Equipment
	 
	 	 	 	 	 	 	 	 
	SANIPAC, INC.

	 	OR
	 	Financial Federal Credit Inc.
	 	6988577

07/22/2005
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Financial Federal Credit Inc.
	 	7037432

09/13/2005
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Financial Federal Credit Inc.
	 	7760093

10/02/2007
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Financial Federal Credit Inc.
	 	7760104

10/02/2007
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Financial Federal Credit Inc.
	 	7788752

11/01/2007
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Financial Federal Credit Inc.
	 	7788780

11/01/2007
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	SILVER SPRINGS ORGANICS L.L.C.

	 	WA
	 	Bank of the West, Trinity
Division
	 	2008-067-3426-4

03/07/2008
	 	Komptech Crambo
Shredders
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Clyde/West, Inc.
	 	2008-162-1243-1

06/10/2008
	 	Volvo Wheel Loader
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	VFS Leasing Co.
	 	2008-254-6392-3

09/19/2008
	 	2008 Volvo





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	WASTE CONNECTIONS OF CALIFORNIA,
INC.

	 	CA
	 	Wells Fargo Financial Leasing,
Inc.
	 	09-7208086212

09/14/2009
	 	Specific Leased
Equipment (Copiers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Bank of the West, Trinity
Division
	 	09-7212870703

10/30/2009
	 	Security System
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF COLORADO,
INC.

	 	DE
	 	American Strategic Income
Portfolio Inc.-II
	 	2010 3308503

09/22/2010
	 	All Assets
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF IOWA, INC.

	 	IA
	 	Bankers Leasing Company
	 	E940742-6

09/26/2008
	 	Specific Leased
Equipment
(Copier)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF KANSAS, INC.

	 	DE
	 	Key Equipment Finance Inc.
	 	2007 1714715

05/07/2007
	 	Specific Leased
Equipment (pursuant
to Master Lease)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Deere Credit, Inc.
	 	2008 0516391

02/12/2008
	 	Specific Leased
Equipment (John
Deere Tractors)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Deere Credit, Inc.
	 	2008 3354691

10/03/2008
	 	Specific Leased
Equipment (John
Deere Scraper)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF MINNESOTA,
INC.

	 	MN
	 	First National Bank
	 	200813761116

11/04/2008
	 	Specific Leased
Equipment
(Scanners, Copier)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF MONTANA, INC.

	 	DE
	 	Deere Credit, Inc.
	 	2007 2374030
	 	Specific Leased
Equipment (John
Deere Excavator)





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	WASTE CONNECTIONS OF OKLAHOMA,
INC.

	 	OK
	 	Oklahoma Office Systems, Inc.
	 	E2006012339026

10/12/2006
	 	Specific Leased
Equipment (Copiers,
Printers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Oklahoma Office Systems, Inc.
	 	E2007015127631

12/28/2007
	 	Specific Leased
Equipment (Copiers,
Printers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	LCA Bank Corporation
	 	E2008001361627

02/06/2008
	 	Specific Leased
Equipment (Security
Equipment)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Oklahoma Office Services
	 	E2009006106832

06/18/2009
	 	Specific Leased
Equipment (Copiers,
Printers)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF OREGON, INC.

	 	OR
	 	Les Schwab Warehouse Center,
Inc.
	 	7127192

12/19/2005
	 	Purchased Goods
(New and Used
Wheels, Batteries)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF TENNESSEE,
INC.

	 	DE
	 	First Tennessee Bank National
Association
	 	2007 0360437

01/26/2007
	 	Specific Leased
Equipment (Power
Washers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	The McPherson Companies, Inc.
	 	2007 1115566

03/26/2007
	 	Specific Leased
Equipment (Meters,
Tubing, Reels)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	GreatAmerica Leasing
Corporation
	 	2009 0899200

03/20/2009
	 	Specific Leased
Equipment (Copiers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	U.S. Bancorp
	 	2008 1503919

04/30/2008
	 	Specific Leased
Equipment
(Identifies by
Serial Numbers
Only)





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	 

	 	 	 	U.S. Bancorp
	 	2009 3310718

10/14/2009
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF TEXAS, LLC

	 	DE
	 	General Electric Capital
Corporation
	 	2009 1853552

06/10/2009
	 	Specific Leased
Equipment (Pursuant
to Master Lease)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	U.S. Bancorp Business
Equipment Finance Group
	 	2011 0638224

02/22/2011
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	U.S. Bancorp Business
Equipment Finance Group
	 	2011 0718992

02/26/2011
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS OF WASHINGTON,
INC.

	 	WA
	 	Holt Cat
	 	2009-182-9173-0

07/01/2009
	 	Specific Leased
Equipment
(Caterpillar)
	 
	 	 	 	 	 	 	 	 
	WASTE CONNECTIONS, INC.

	 	DE
	 	US Bancorp
	 	2010 2827040

08/12/2010
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	US Express Leasing, Inc.
	 	6304909 5

09/01/2006
	 	Specific Leased
Equipment (Copier)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	The McPherson Companies, Inc.
	 	2007 1122802

03/26/2007
	 	Specific Leased
Equipment (Pumps,
Handles, Hardware)





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILE NO./	 	 
	COMPANY	 	JUR.	 	SECURED PARTY	 	FILE DATE	 	COLLATERAL
	 

	 	 	 	LCA Bank Corporation
	 	2008 2385357

07/11/2008
	 	Specific Leased
Equipment (Radios)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	LC Bank Corporation
	 	2008 2898789

08/26/2008
	 	Specific Leased
Equipment (Radios)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Copeco Inc DBA Seamless
Solutions
	 	2009 2415872

07/28/2009
	 	Specific Leased
Equipment (Copiers,
Printers)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Wilmington Trust Company, not
in its individual capacity but
solely as Trustee under Trust
Agreement dated as of April 3,
2006
	 	2010 0114151

12/24/2009
	 	Specific Leased
Equipment
(Aircraft)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Holt Cat
	 	2010 0198402

01/20/2010
	 	Specific Leased
Equipment
(Caterpillar
Tractor)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	US Bancorp
	 	2010 0352603

02/01/2010
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	U.S. Bancorp Equipment
Finance, Inc.
	 	2011 2298704

06/15/2011
	 	Specific Leased
Equipment
(Identifies by
Serial Number Only)
	 
	 	 	 	 	 	 	 	 
	YAKIMA WASTE SYSTEMS, INC.

	 	WA
	 	Les Schwab Warehouse Center,
Inc.
	 	200533429334

11/30/2005
	 	Specific Leased
Equipment
(Batteries)





 


 









 





SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICES




BORROWERS:




Waste Connections, Inc.

2295 Iron Point Road, Suite 200

Folsom, CA 95630-8767

Attention: Worthing F. Jackman, Executive Vice President

and Chief Financial Officer

Phone:    (916) 608-8200

Fax:          (916) 608-8291

Email: worthingj@wasteconnections.com




with a copy to:




Latham & Watkins LLP

505 Montgomery Street, Suite 2000

San Francisco, CA 94111-6538

Attn: Kenneth Blohm, Esq.

Telephone: 415-395-8079

Facsimile: 415-395-8095

Email: KEN.BLOHM@LW.com




ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):

Bank of America, N.A.

101 N. Tryon Street

Mail Code: NC1-001-04-39

Charlotte, NC 28255-0001

Attention:      Rose M. Bollard

Telephone:    (980) 386-2881

Telecopier:    (704) 409-0355

Electronic Mail: rose.bollard@baml.com

Account No.: 1366212250600

Ref:                Waste Connections

ABA#           026009593




Other Notices as Administrative Agent:

Bank of America, N.A.

Agency Management




Schedule 10.02

Administrative Agent’s Office; Certain Addresses for Notices



 


 









 





901 Main Street

Mail Code: TX1-492-14-11

Dallas, TX 75202

Attention:      Ronaldo Naval

Telephone:    (214) 209-1162

Telecopier:    (877) 511-6124

Electronic Mail: ronaldo.naval@baml.com




Schedule 10.02

Administrative Agent’s Office; Certain Addresses for Notices



 


 









 







Other Notices as Administrative Agent (also copy):

Bank of America, N.A.

100 Federal Street

Mail Code: MA5-100-09-07

Boston, MA 02110

Attention:      Maria F. Maia, Managing Director

Telephone:    (617) 434-5751

Telecopier:    (980) 233-7700

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




Other Notices as Administrative Agent (also copy):

Goulston & Storrs

400 Atlantic Avenue

Boston, MA 02110

Attention:      Pamela M. MacKenzie, Esq.

Telephone:    (617) 574-4106

Telecopier:    (617) 574-4112

Electronic Mail: pmackenzie@goulstonstorrs.com




L/C ISSUER:




Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: Mary J. Cooper

Telephone: (570) 330-4235

Telecopier: (570) 330-4186

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




SWING LINE LENDER:




Bank of America, N.A.

101 N. Tryon Street

Mail Code: NC1-001-04-39

Charlotte, NC 28255-0001

Attention:     Rose M. Bollard

Telephone:   (980) 386-2881

Telecopier:   (704) 409-0355

Electronic Mail: rose.bollard@baml.com

Account No.: 1366212250600

Ref:              Waste Connections

ABA#         026009593




Schedule 10.02

Administrative Agent’s Office; Certain Addresses for Notices





 


 











 




EXHIBIT A-1




FORM OF COMMITTED LOAN NOTICE



Date:                     ,
 _____ 




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of July 11,
2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”; the terms defined therein being used herein as therein defined), by
and among Waste Connections, Inc., and certain of its Subsidiaries party thereto (collectively, the
“Borrowers”), the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned hereby requests (select one):


o
A Committed
Borrowing          o A conversion or continuation of Committed Loans





	 	1.	 	On
                                                             (a Business Day).

	 
	 	2.	 	In the amount of $                                        .

	 
	 	3.	 	Comprised of                                         .

	 	 	 	                         [Type of Loan requested]

	 
	 	4.	 	For LIBOR Rate Loans: with an Interest Period of
 _____ 
months.






The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



The Borrowers hereby represent and warrant that the conditions specified in Sections
4.02(a) and (b) of the Agreement shall be satisfied on and as of the date of the
applicable Credit Extension.



	 	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS, INC.,	 	 
	 	 	on behalf of itself and the other Borrowers	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Exhibit A-1

Form of Committed Loan Notice



 


 









 







EXHIBIT A-2




FORM OF SWING LINE LOAN NOTICE




Date:                     ,
 _____ 




To: Bank of America, N.A., as Swing Line Lender and Administrative Agent



Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of July 11,
2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”; the terms defined therein being used herein as therein defined), by
and among Waste Connections, Inc., and certain of its Subsidiaries party thereto (collectively, the
“Borrowers”), the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned hereby requests a Swing Line Loan:




	 	1.	 	On                                                              (a Business Day).



	 
	 	2. 	 	In the amount of $                                        .






The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



The Borrowers hereby represent and warrant that the conditions specified in Sections
4.02(a) and (b) of the Agreement shall be satisfied on and as of the date of the
applicable Credit Extension.



	 	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS, INC.,	 	 
	 	 	on behalf of itself and the other Borrowers	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Exhibit A-2

Form of Swing Line Loan Notice



 


 









 





EXHIBIT B-1




FORM OF REVOLVING CREDIT NOTE




			
	 	 	 
	$                                         
	 	                    , 20
 _____ 







FOR VALUE RECEIVED, the undersigned (the “Borrowers”) hereby, jointly and severally,
promise to pay to                                          or registered assigns (the “Lender”), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal amount of each
Committed Loan from time to time made by the Lender to the Borrowers under that certain Amended and
Restated Credit Agreement, dated as of July 11, 2011 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement”; the terms defined
therein being used herein as therein defined), among the Borrowers, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



The Borrowers, jointly and severally, promise to pay interest on the unpaid principal amount
of each Committed Loan from the date of such Committed Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. Except as otherwise
provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, all payments
of principal and interest shall be made to the Administrative Agent for the account of the Lender
in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is
not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before as well as after
judgment) computed at the per annum rate set forth in the Agreement.



This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note
shall become, or may be declared to be, immediately due and payable all as provided in the
Agreement. Committed Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Revolving Credit Note and endorse thereon the date, amount and maturity of its
Committed Loans and payments with respect thereto.



Each of the Borrowers, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this
Revolving Credit Note.



THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.



[Remainder of page intentionally left blank.]




Exhibit B-1

Form of Revolving Credit Note



 


 









 





IN WITNESS WHEREOF, the Borrowers hereto have caused this Revolving Credit Note to be duly
executed as of the date first above written.




BORROWERS:




WASTE CONNECTIONS, INC.

ADVANCED SYSTEMS PORTABLE RESTROOMS, INC.

AMERICAN DISPOSAL COMPANY, INC.

AMERICAN SANITARY SERVICE, INC.

ANDERSON COUNTY LANDFILL, INC.

BITUMINOUS RESOURCES, INC.

BRENT RUN LANDFILL, INC.

BROADACRE LANDFILL, INC.

BUTLER COUNTY LANDFILL, INC.

CAMINO REAL ENVIRONMENTAL CENTER, INC.

CAPITAL REGION LANDFILLS, INC.

CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC.

CHIQUITA CANYON, INC.

COLD CANYON LAND FILL, INC.

COMMUNITY REFUSE DISPOSAL INC.

CONTRACTORS WASTE SERVICES, INC.

CORRAL DE PIEDRA LAND COMPANY

COUNTY WASTE AND RECYCLING SERVICE, INC.

COUNTY WASTE TRANSFER CORP.

CURRY TRANSFER & RECYCLING, INC.

D. M. DISPOSAL CO., INC.

DENVER REGIONAL LANDFILL, INC.

ELKO SANITATION COMPANY

EMPIRE DISPOSAL, INC.

ENVIRONMENTAL TRUST COMPANY

EVERGREEN DISPOSAL, INC.

FINNEY COUNTY LANDFILL, INC.

FRONT RANGE LANDFILL, INC.

G & P DEVELOPMENT, INC.

HAROLD LEMAY ENTERPRISES, INCORPORATED

HIGH DESERT SOLID WASTE FACILITY, INC.

HUDSON VALLEY WASTE HOLDING, INC.

ISLAND DISPOSAL, INC.




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note



 


 









 





BORROWERS:




J BAR J LAND, INC.

LAKESHORE DISPOSAL, INC.

LEALCO, INC.

LFC, INC.

MADERA DISPOSAL SYSTEMS, INC.

MAMMOTH DISPOSAL COMPANY

MANAGEMENT ENVIRONMENTAL NATIONAL, INC.

MASON COUNTY GARBAGE CO., INC.

MDSI OF LA, INC.

MILLENNIUM WASTE INCORPORATED

MISSION COUNTRY DISPOSAL

MORRO BAY GARBAGE SERVICE

MURREY’S DISPOSAL COMPANY, INC.

NEBRASKA ECOLOGY SYSTEMS, INC.

NOBLES COUNTY LANDFILL, INC.

NORTHERN PLAINS DISPOSAL, INC.

NORTHWEST CONTAINER SERVICES, INC.

OKLAHOMA CITY WASTE DISPOSAL, INC.

OKLAHOMA LANDFILL HOLDINGS, INC.

OSAGE LANDFILL, INC.

POTRERO HILLS LANDFILL, INC.

PSI ENVIRONMENTAL SERVICES, INC.

PSI ENVIRONMENTAL SYSTEMS, INC.

PUEBLO SANITATION, INC.

R.A. BROWNRIGG INVESTMENTS, INC.

R.J.C. TRUCKING CO.

RED CARPET LANDFILL, INC.

RH FINANCIAL CORPORATION

RKS HOLDING, CORP.

RURAL WASTE MANAGEMENT, INC.

SAN LUIS GARBAGE COMPANY

SANIPAC, INC.

SCOTT SOLID WASTE DISPOSAL COMPANY

SEABREEZE RECOVERY, INC.

SEDALIA LAND COMPANY

SOUTH COUNTY SANITARY SERVICE, INC.

SOUTHERN PLAINS DISPOSAL, INC.

STUTZMAN REFUSE DISPOSAL INC.

TACOMA RECYCLING COMPANY, INC.

TENNESSEE WASTE MOVERS, INC.

WASCO COUNTY LANDFILL, INC.




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note



 


 









 





BORROWERS:




WASTE CONNECTIONS MANAGEMENT SERVICES, INC.

WASTE CONNECTIONS OF ALABAMA, INC.

WASTE CONNECTIONS OF ARIZONA, INC.

WASTE CONNECTIONS OF ARKANSAS, INC.

WASTE CONNECTIONS OF CALIFORNIA, INC.

WASTE CONNECTIONS OF COLORADO, INC.

WASTE CONNECTIONS OF GEORGIA, INC.

WASTE CONNECTIONS OF IDAHO, INC.

WASTE CONNECTIONS OF ILLINOIS, INC.

WASTE CONNECTIONS OF IOWA, INC.

WASTE CONNECTIONS OF KANSAS, INC.

WASTE CONNECTIONS OF KENTUCKY, INC.

WASTE CONNECTIONS OF LOUISIANA, INC.

WASTE CONNECTIONS OF MINNESOTA, INC.

WASTE CONNECTIONS OF MISSISSIPPI, INC.

WASTE CONNECTIONS OF MONTANA, INC.

WASTE CONNECTIONS OF NEBRASKA, INC.

WASTE CONNECTIONS OF NEW MEXICO, INC.

WASTE CONNECTIONS OF NORTH CAROLINA, INC.

WASTE CONNECTIONS OF OKLAHOMA, INC.

WASTE CONNECTIONS OF OREGON, INC.

WASTE CONNECTIONS OF SOUTH CAROLINA, INC.

WASTE CONNECTIONS OF SOUTH DAKOTA, INC.

WASTE CONNECTIONS OF TENNESSEE, INC.

WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC.

WASTE CONNECTIONS OF UTAH, INC.

WASTE CONNECTIONS OF WASHINGTON, INC.

WASTE CONNECTIONS OF WYOMING, INC.

WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.

WASTE SERVICES OF N.E. MISSISSIPPI, INC.

WCI-WHITE OAKS LANDFILL, INC.

WEST BANK ENVIRONMENTAL SERVICES, INC.

WEST COAST RECYCLING AND TRANSFER, INC.

WYOMING ENVIRONMENTAL SERVICES, INC.

WYOMING ENVIRONMENTAL SYSTEMS, INC.

YAKIMA WASTE SYSTEMS, INC.




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note



 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CARPENTER WASTE HOLDINGS, LLC 

COUNTY WASTE — ULSTER, LLC	 	 
	 

	 	FORT ANN TRANSFER STATION, LLC	 	 
	 

	 	SIERRA HOLDING GROUP, LLC	 	 
	 

	 	STERLING AVENUE PROPERTIES, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC.,

its sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CLIFTON ORGANICS, LLC	 	 
	 	 	SIERRA PROCESSING, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	SIERRA HOLDING GROUP, LLC, its manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC., its sole member and
manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS OF TEXAS, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES, INC., its sole manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note



 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	EL PASO DISPOSAL, LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF TEXAS, LLC, its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES, INC., its sole manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	DELTA CONTRACTS, LLC	 	 
	 	 	LACASSINE HOLDINGS, L.L.C	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF LOUISIANA, INC., its sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	MBO, LLC
 	 	 	 	 
	 	 	By:	 	LACASSINE HOLDINGS, L.L.C., its sole member and
manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS OF LOUISIANA, INC., its

sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note



 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ANDERSON COUNTY LANDFILL, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	ANDERSON COUNTY LANDFILL, INC., its sole member
and manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DIVERSIFIED BUILDINGS, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF KANSAS, INC., its sole
member and manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WASTE REDUCTION SERVICES, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF OREGON, INC., its sole
member and manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CHIQUITA CANYON, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	CHIQUITA CANYON, INC., its sole member and
manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note





 


 












 




	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COLUMBIA RESOURCE CO., L.P.	 	 
	 	 	FINLEY-BUTTES LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MANAGEMENT ENVIRONMENTAL NATIONAL, INC.,
its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






HORIZON PROPERTY MANAGEMENT, LLC

PIERCE COUNTY RECYCLING, COMPOSTING
AND DISPOSAL, LLC

RAILROAD AVENUE DISPOSAL, LLC

SCOTT WASTE SERVICES, LLC

SILVER SPRINGS ORGANICS L.L.C.

THE TRASH COMPANY, LLC

VOORHEES SANITATION, L.L.C.

WASTE CONNECTIONS OF LEFLORE, LLC

WASTE SOLUTIONS GROUP OF SAN BENITO, LLC



	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Name:
	 	Worthing F. Jackman	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	LAUREL RIDGE LANDFILL, L.L.C.	 	 
	 	 	WASTE CONNECTIONS OF MISSISSIPPI DISPOSAL
SERVICES, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its managing
member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-1

Form of Revolving Credit Note




 


 









 







LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 






Exhibit B-1

Form of Revolving Credit Note





 


 











 




EXHIBIT B-2




FORM OF SWING LINE NOTE




			
	 	 	 
	$                    
	 	
 _____ ,20__ 







FOR VALUE RECEIVED, the undersigned (the “Borrowers”) hereby, jointly and severally,
promise to pay to Bank of America, N.A. or registered assigns (the “Swing Line Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each Swing Line Loan from time to time made by the Swing Line Lender to the Borrowers under that
certain Amended and Restated Credit Agreement, dated as of July 11, 2011 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among the Borrowers, the Lenders
from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.



The Borrowers, jointly and severally, promise to pay interest on the unpaid principal amount
of each Swing Line Loan from the date of such Swing Line Loan until such principal amount is paid
in full, at such interest rates and at such times as provided in the Agreement. All payments of
principal and interest shall be made to the Swing Line Lender in Dollars in immediately available
funds at the Swing Line Lender’s Lending Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.



This Swing Line Note is one of the Swing Line Notes referred to in the Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Swing Line Note shall become,
or may be declared to be, immediately due and payable all as provided in the Agreement. Swing Line
Loans made by the Swing Line Lender shall be evidenced by one or more loan accounts or records
maintained by the Swing Line Lender in the ordinary course of business. The Swing Line Lender may
also attach schedules to this Swing Line Note and endorse thereon the date, amount and maturity of
its Swing Line Loans and payments with respect thereto.



Each of the Borrowers, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this
Swing Line Note.



THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.



[Remainder of page intentionally left blank.]




Exhibit B-2

Form of Swing Line Note




 


 









 







IN WITNESS WHEREOF, the Borrowers hereto have caused this Swing Line Note to be duly executed
as of the date first above written.



	 	 	 	 	 
	 	BORROWERS:



WASTE CONNECTIONS, INC.

ADVANCED SYSTEMS PORTABLE RESTROOMS, INC.

AMERICAN DISPOSAL COMPANY, INC.

AMERICAN SANITARY SERVICE, INC.

ANDERSON COUNTY LANDFILL, INC.

BITUMINOUS RESOURCES, INC.

BRENT RUN LANDFILL, INC.

BROADACRE LANDFILL, INC.

BUTLER COUNTY LANDFILL, INC.

CAMINO REAL ENVIRONMENTAL CENTER, INC.

CAPITAL REGION LANDFILLS, INC.

CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC.

CHIQUITA CANYON, INC.

COLD CANYON LAND FILL, INC.

COMMUNITY REFUSE DISPOSAL INC.

CONTRACTORS WASTE SERVICES, INC.

CORRAL DE PIEDRA LAND COMPANY

COUNTY WASTE AND RECYCLING SERVICE, INC.

COUNTY WASTE TRANSFER CORP.

CURRY TRANSFER & RECYCLING, INC.

D. M. DISPOSAL CO., INC.

DENVER REGIONAL LANDFILL, INC.

ELKO SANITATION COMPANY

EMPIRE DISPOSAL, INC.

ENVIRONMENTAL TRUST COMPANY

EVERGREEN DISPOSAL, INC.

FINNEY COUNTY LANDFILL, INC.

FRONT RANGE LANDFILL, INC.

G & P DEVELOPMENT, INC.

HAROLD LEMAY ENTERPRISES, INCORPORATED

HIGH DESERT SOLID WASTE FACILITY, INC.

HUDSON VALLEY WASTE HOLDING, INC.

ISLAND DISPOSAL, INC.

 	 
	 	By:  	 	 
	 	Name:  	 	Worthing F. Jackman 	 
	 	Title:  	 	Chief Financial Officer 	 
	 



Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 
	 	BORROWERS:



J BAR J LAND, INC.

LAKESHORE DISPOSAL, INC.

LEALCO, INC.

LFC, INC.

MADERA DISPOSAL SYSTEMS, INC.

MAMMOTH DISPOSAL COMPANY

MANAGEMENT ENVIRONMENTAL NATIONAL, INC.

MASON COUNTY GARBAGE CO., INC.

MDSI OF LA, INC.

MILLENNIUM WASTE INCORPORATED

MISSION COUNTRY DISPOSAL

MORRO BAY GARBAGE SERVICE

MURREY’S DISPOSAL COMPANY, INC.

NEBRASKA ECOLOGY SYSTEMS, INC.

NOBLES COUNTY LANDFILL, INC.

NORTHERN PLAINS DISPOSAL, INC.

NORTHWEST CONTAINER SERVICES, INC.

OKLAHOMA CITY WASTE DISPOSAL, INC.

OKLAHOMA LANDFILL HOLDINGS, INC.

OSAGE LANDFILL, INC.

POTRERO HILLS LANDFILL, INC.

PSI ENVIRONMENTAL SERVICES, INC.

PSI ENVIRONMENTAL SYSTEMS, INC.

PUEBLO SANITATION, INC.

R.A. BROWNRIGG INVESTMENTS, INC.

R.J.C. TRUCKING CO.

RED CARPET LANDFILL, INC.

RH FINANCIAL CORPORATION

RKS HOLDING, CORP.

RURAL WASTE MANAGEMENT, INC.

SAN LUIS GARBAGE COMPANY

SANIPAC, INC.

SCOTT SOLID WASTE DISPOSAL COMPANY

SEABREEZE RECOVERY, INC.

SEDALIA LAND COMPANY

SOUTH COUNTY SANITARY SERVICE, INC.

SOUTHERN PLAINS DISPOSAL, INC.

STUTZMAN REFUSE DISPOSAL INC.

TACOMA RECYCLING COMPANY, INC.

TENNESSEE WASTE MOVERS, INC.

WASCO COUNTY LANDFILL, INC.

 	 
	 	By:  	 	 
	 	Name:  	 	Worthing F. Jackman 	 
	 	Title:  	 	Chief Financial Officer 	 
	 



Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 
	 	BORROWERS:



WASTE CONNECTIONS MANAGEMENT SERVICES, INC.

WASTE CONNECTIONS OF ALABAMA, INC.

WASTE CONNECTIONS OF ARIZONA, INC.

WASTE CONNECTIONS OF ARKANSAS, INC.

WASTE CONNECTIONS OF CALIFORNIA, INC.

WASTE CONNECTIONS OF COLORADO, INC.

WASTE CONNECTIONS OF GEORGIA, INC.

WASTE CONNECTIONS OF IDAHO, INC.

WASTE CONNECTIONS OF ILLINOIS, INC.

WASTE CONNECTIONS OF IOWA, INC.

WASTE CONNECTIONS OF KANSAS, INC.

WASTE CONNECTIONS OF KENTUCKY, INC.

WASTE CONNECTIONS OF LOUISIANA, INC.

WASTE CONNECTIONS OF MINNESOTA, INC.

WASTE CONNECTIONS OF MISSISSIPPI, INC.

WASTE CONNECTIONS OF MONTANA, INC.

WASTE CONNECTIONS OF NEBRASKA, INC.

WASTE CONNECTIONS OF NEW MEXICO, INC.

WASTE CONNECTIONS OF NORTH CAROLINA, INC.

WASTE CONNECTIONS OF OKLAHOMA, INC.

WASTE CONNECTIONS OF OREGON, INC.

WASTE CONNECTIONS OF SOUTH CAROLINA, INC.

WASTE CONNECTIONS OF SOUTH DAKOTA, INC.

WASTE CONNECTIONS OF TENNESSEE, INC.

WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC.

WASTE CONNECTIONS OF UTAH, INC.

WASTE CONNECTIONS OF WASHINGTON, INC.

WASTE CONNECTIONS OF WYOMING, INC.

WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.

WASTE SERVICES OF N.E. MISSISSIPPI, INC.

WCI-WHITE OAKS LANDFILL, INC.

WEST BANK ENVIRONMENTAL SERVICES, INC.

WEST COAST RECYCLING AND TRANSFER, INC.

WYOMING ENVIRONMENTAL SERVICES, INC.

WYOMING ENVIRONMENTAL SYSTEMS, INC.

YAKIMA WASTE SYSTEMS, INC.

 	 
	 	By:  	 	 
	 	Name:  	 	Worthing F. Jackman 	 
	 	Title:  	 	Chief Financial Officer 	 
	 



Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CARPENTER WASTE HOLDINGS, LLC

COUNTY WASTE — ULSTER, LLC

FORT ANN TRANSFER STATION, LLC

SIERRA HOLDING GROUP, LLC

STERLING AVENUE PROPERTIES, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC.,

its sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CLIFTON ORGANICS, LLC

SIERRA PROCESSING, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	SIERRA HOLDING GROUP, LLC, its manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	COUNTY WASTE AND RECYCLING SERVICE, INC.,

its sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS OF TEXAS, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES, INC., its sole manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 






Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	EL PASO DISPOSAL, LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF TEXAS, LLC, its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS MANAGEMENT SERVICES,
INC., its sole manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	DELTA CONTRACTS, LLC

LACASSINE HOLDINGS, L.L.C	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF
LOUISIANA, INC., its sole member and manager	 	
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	MBO, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	LACASSINE HOLDINGS, L.L.C., its sole member and
manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	WASTE CONNECTIONS OF LOUISIANA, INC., its
sole member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

Worthing F. Jackman
	 	 
	 

	 	 	 	 	 	Title:
	 	Chief Financial Officer	 	 






Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ANDERSON COUNTY LANDFILL, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	ANDERSON COUNTY LANDFILL, INC., its sole member
and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	DIVERSIFIED BUILDINGS, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF KANSAS, INC., its sole
member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	WASTE REDUCTION SERVICES, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS OF OREGON, INC., its sole
member and manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CHIQUITA CANYON, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	CHIQUITA CANYON, INC., its sole member and
manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 






Exhibit B-2

Form of Swing Line Note



 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	COLUMBIA RESOURCE CO., L.P.

FINLEY-BUTTES LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	MANAGEMENT ENVIRONMENTAL NATIONAL, INC.,
its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	HORIZON PROPERTY MANAGEMENT, LLC

PIERCE COUNTY RECYCLING, COMPOSTING 


AND DISPOSAL, LLC

RAILROAD AVENUE DISPOSAL, LLC

SCOTT WASTE SERVICES, LLC

SILVER SPRINGS ORGANICS L.L.C.

THE TRASH COMPANY, LLC

VOORHEES SANITATION, L.L.C.

WASTE CONNECTIONS OF LEFLORE, LLC

WASTE SOLUTIONS GROUP OF SAN BENITO, LLC
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	LAUREL RIDGE LANDFILL, L.L.C.

WASTE CONNECTIONS OF MISSISSIPPI DISPOSAL 


   SERVICES, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WASTE CONNECTIONS, INC., its managing member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Worthing F. Jackman	 	 
	 	 	 	 	Title:	 	Chief Financial Officer	 	 






Exhibit B-2

Form of Swing Line Note



 


 









 







LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	Principal or	 	 	Principal	 	 	 	 
	 	 	Amount of	 	 	Interest Paid	 	 	Balance This	 	 	Notation	 
	Date	 	Loan Made	 	 	This Date	 	 	Date	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






Exhibit B-2

Form of Swing Line Note





 


 











 




EXHIBIT C



FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: [          ,      ]




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of July 11,
2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”; the terms defined therein being used herein as therein defined), by
and among Waste Connections, Inc. (the “Parent”), and the other borrowers party thereto
(collectively with the Parent, the “Borrowers”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned hereby certifies as of the date hereof that he/she is the Chief Financial
Officer of the Parent, and that, as such, he/she is authorized to execute and deliver this
Compliance Certificate to the Administrative Agent on the behalf of the Parent and the other
Borrowers, and that:



1. Accompanying this certificate are the [audited] [unaudited] financial statements required
by Section 6.04[(a)] [(b)] of the Agreement for the fiscal quarter of the Consolidated
Group ended as of the above date. [Such consolidated financial statements are prepared in
accordance with GAAP and fairly present the consolidated financial condition of the Consolidated
Group as at the close of business on such date and the results of operations for the period then
ended.]1



2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrowers during the accounting period covered by the
attached financial statements.



3. A review of the activities of the Borrowers during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrowers performed and observed all their Obligations under the Loan Documents[, and to the best
knowledge of the undersigned during such fiscal period, the Borrowers performed and observed each
covenant and condition of the Loan Documents applicable to them, and no Default has occurred and is
continuing].2


 





	 	 	 
	1	 	Include in quarterly Compliance Certificate only.

	 
	2	 	Address any Defaults or Events of Default in this
paragraph.





Exhibit C

Form of Compliance Certificate




 


 









 










4. Set forth on Annex A attached hereto is a description of all changes to the
information included in Schedule 1 (Subsidiaries) to the Agreement as may be necessary for
such Schedule to be accurate and complete.



5. Complete and correct copies of all documents modifying any Organization Document of any
Borrower on or prior to the date hereof have been previously delivered to the Administrative Agent
or are attached hereto as Annex B.



6. The representations and warranties of the Borrowers contained in Article V of the
Agreement, are true and correct on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Compliance Certificate,
the representations and warranties contained in Section 5.04(a) of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and
(b), as applicable, of Section 6.04 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.



7. The financial covenant analyses and information set forth on Schedule 1 attached
hereto are true and accurate on and as of the date of this Compliance Certificate.



[Remainder of page intentionally left blank.]




Exhibit C

Form of Compliance Certificate



 


 









 








IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as
of                     ,           .



	 	 	 	 	 
	 	WASTE CONNECTIONS, INC.,

on behalf of itself and the other Borrowers

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  Chief Financial Officer 	 
	 



Exhibit C

Form of Compliance Certificate




 


 









 





For the Fiscal Quarter/Year ended                      (the “Statement Date”)




SCHEDULE 1

to the Compliance Certificate

($ in 000’s)





	I.	 	Section 7.14(a) — Leverage Ratio.

	 
	A.	 	Consolidated Total Funded Debt as of Statement Date:






	 	 	 	 	 	 	 
	         1.	 	Indebtedness relating to the borrowing of money
or the obtaining of credit, including the issuance of
notes, bonds, debentures or similar debt instruments
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         2.	 	Attributable Indebtedness in respect of
Capitalized Leases and Synthetic Leases
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         3.	 	Indebtedness relating to the non-contingent
deferred purchase price of assets and companies
(typically known as holdbacks) to the extent recognized
as a liability in accordance with GAAP, but excluding
short-term payables incurred in the ordinary course of
business
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         4.	 	Indebtedness relating to any unpaid
reimbursement obligations with respect to letters of
credit outstanding (excluding any contingent obligations
with respect to letters of credit outstanding)
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         5.	 	Indebtedness of the types referred to in Line
I.A.1 through Line I.A.4 above of another Person who is
not a member of the Consolidated Group that is
Guaranteed by one or more members of the Consolidated
Group
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         equals	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         6.	 	Consolidated Total Funded Debt as of the
Statement Date (sum of Line I.A.1 through Line I.A.5
above)
	 	$	 	 
	          	 	 
	 	 	 






Exhibit C

Form of Compliance Certificate



 


 









 






	B.	 	Consolidated EBITDA for four fiscal quarters ending on the Statement Date
(the “Reference Period”):






	 	 	 	 	 	 	 
	          1.	 	Consolidated Net Income (or Deficit) of the
Consolidated Group determined in accordance with GAAP
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         2.	 	Interest expense
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         3.	 	Income taxes
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         4.	 	Non-cash stock compensation charges, to the
extent that such charges were deducted in determining
Consolidated Net Income (or Deficit), including, without
limitation, charges for stock options and restricted
stock grants
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         5.	 	One-time, non-recurring acquisition costs to the
extent such costs are expensed in accordance with FAS
141R and not capitalized
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         6.	 	Non-controlling interest expense
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         7.	 	Non-cash extraordinary non-recurring writedowns
or writeoffs of assets, including non-cash losses on the
sale of assets outside the ordinary course of business
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 






Exhibit C

Form of Compliance Certificate



 


 









 





	 	 	 	 	 	 	 
	    8.	 	Any losses associated with the extinguishment of Indebtedness
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    plus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    9.	 	Special charges relating to the termination of a Swap Contract
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    plus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    10.	 	Any accrued settlement payments in respect of
any Swap Contract owing by any members of the
Consolidated Group
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    plus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    11.	 	One-time, non-recurring charges in connection
with the modification of employment agreements with
certain members of senior management as approved by the
Administrative Agent
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    minus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    12.	 	Non-cash extraordinary gains on the sale of
assets to the extent included in Consolidated Net Income
(or Deficit)
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    minus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    13.	 	Any accrued settlement payments in respect of
any Swap Contract payable to any members of the
Consolidated Group
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    equals	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    14.	 	Consolidated EBIT for the Reference Period
(result of (i) sum of Line I.B.1 through Line I.B.11 above, minus (ii) sum of Line I.B.12 and Line
I.B.13 above)
	 	$	 	 
	     	 	 
	 	 	 
	     	 	 
	 	 	 	 
	    plus	 	 
	 	 	 	 
	     	 	 
	 	 	 	 
	    15.	 	Depreciation expense and amortization expense to
the extent that each was deducted in determining
Consolidated Net Income (or Deficit)
	 	$	 	 
	     	 	 
	 	 	 






Exhibit C

Form of Compliance Certificate



 


 









 





	 	 	 	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         16.	 	Consolidated EBITDA for the prior 12 months of
companies or business segments acquired by the Borrowers
during the Reference Period (without
duplication)3
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         17.	 	Depreciation expense and amortization expense
(without duplication) of any company whose Consolidated
EBITDA was included under Line I.B.16 above
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         equals	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         18.	 	Consolidated EBITDA for the Reference Period
(sum of Line I.B.14 through Line I.B.17 above)
	 	$	 	 
	          	 	 
	 	 	 






	 	 	 	 	 	 	 
	         C.	 	Leverage Ratio (Line I.A.6 divided by Line I.B.18 above):
	 	 	                    
to 1.00
	          	 	 
	 	 	 	 
	          	 	Maximum Permitted: 3.50 to 1.00
	 	 	 	 
	          	 	 
	 	 	 	 
	         II.	 	Section 7.14(b) — Interest Coverage Ratio.
	 	 	 	 
	          	 	 
	 	 	 	 
	         A.	 	Consolidated EBIT for the Reference Period (Line I.B.14 above)
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         B.	 	Consolidated Total Interest Expense for the Reference Period:
	 	 	 	 






	 	 	 	 	 	 	 	 
		1.		Aggregate amount of interest required to be paid
or accrued by the Consolidated Group during such period
on all Indebtedness of the Consolidated Group
outstanding during all or any part of such period,
whether such interest was or is required to be reflected
as an item of expense or capitalized, including payments
treated as interest under GAAP in respect of any Capital
Lease or any Synthetic Lease and including commitment
fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of
money
	 	$	 	 
	          	 		 
	 	 	 







 



	 	 	 
	3	 	NOTE: Subject to delivery of financial statements
and/or consent of the Administrative Agent, and delivery of a separate
Compliance Certificate and appropriate documentation certifying the historical
operating results, adjustments and balance sheet of the acquired company, all
as set forth in the Credit Agreement.





Exhibit C

Form of Compliance Certificate



 


 









 





	 	 	 	 	 	 	 
	         minus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         2.	 	Any amortization and other non-cash charges or
expenses incurred during the Reference Period to the
extent included in determining consolidated interest
expense, including, without limitation, non-cash
amortization of deferred debt origination and issuance
costs and amortization of accumulated other
comprehensive income
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         minus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         3.	 	All amounts associated with the unwinding or
termination of any Swap Contract
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         minus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         4.	 	Any accrued settlement payments in respect of
any Swap Contract payable to any member of the
Consolidated Group
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         minus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         5.	 	To the extent included as an item of interest
expense, any premium paid to prepay, repurchase or
redeem Indebtedness incurred by the Borrowers pursuant
to Section 7.01 of the Credit Agreement
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         plus	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         6.	 	Any accrued settlement payments in respect of
any Swap Contract owing by any member of the
Consolidated Group
	 	$	 	 
	          	 	 
	 	 	 
	          	 	 
	 	 	 	 
	         equals	 	 
	 	 	 	 
	          	 	 
	 	 	 	 
	         7.	 	Consolidated Total Interest Expense for the
Reference Period (Line II.B.1 above minus the sum of Line II.B.2 through Line II.B.5 above
plus Line II.B.6 above)
	 	$	 	 
	          	 	 
	 	 	 






Exhibit C

Form of Compliance Certificate



 


 









 





	 	 	 	 	 	 	 
	C.	 	Interest Coverage Ratio (Line II.A divided by Line II.B.7 above):
	 	                     to 1.00
	 	 	 
	 	 	 	 
	 	 	Minimum Permitted: 2.75 to 1.00
	 	 	 	 
	 	 	 
	 	 	 	 
	III.	 	Section 7.15 — Restrictions on Excluded Subsidiaries.
	 	 	 	 
	 	 	 
	 	 	 	 
	A.	 	Asset Value Limitation
	 	 	 	 






	 	 	 	 	 	 	 
	1.	 	Aggregate book value of the assets of all
Excluded Subsidiaries on Statement Date
	 	$	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	2.	 	Aggregate book value of the assets of the
Consolidated Group on the Statement Date
	 	$	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	3.	 	Asset value percentage (Line III.A.1 divided by Line III.A.2 above)
	 	 	                    	%
	 	 	 
	 	 	 	 
	 	 	Maximum Permitted: 5%
	 	 	 	 







	B.	 	Revenue Limitation






	 	 	 	 	 	 	 
	1.	 	Aggregate revenues of all Excluded Subsidiaries
for the fiscal quarter ending on the Statement Date
	 	$	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	2.	 	Aggregate revenues of the Consolidated Group for
the fiscal quarter ending on the Statement Date
	 	$	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	3.	 	Revenue percentage (Line III.B.1 divided by Line III.B.2 above)
	 	 	                    	%
	 	 	 
	 	 	 	 
	 	 	Maximum Permitted: 5%
	 	 	 	 






Exhibit C

Form of Compliance Certificate





 


 











 




EXHIBIT D-1




FORM OF ASSIGNMENT AND ASSUMPTION




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



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



	 	 	 
	1. Assignor[s]:

	 	                                        
	 
	 	 
	 

	 	                                        
	 
	 	 
	2. Assignee[s]:

	 	                                        
	 
	 	 
	 

	 	                                        






Exhibit D-1

Form of Assignment and Assumption



 


 









 








	 	 	     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]







	3.	 	Borrowers: Waste Connections, Inc., and certain of its Subsidiaries

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

	 
	5.	 	Credit Agreement: Amended and Restated Credit Agreement, dated as of July 11, 2011,
by and among Waste Connections, Inc., the other Borrowers party thereto, the Lenders from time
to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, and
Swing Line Lender

	 
	6.	 	Assigned Interest[s]:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	Amount of	 	Percentage	 
	 	 	 	 	 	 	Commitment	 	 	Commitment	 	 	Assigned of	 
	Assignor[s]	 	Assignee[s]	 	 	for all Lenders	 	 	Assigned	 	 	Commitment	 
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%






[7.     Trade Date:                     ]




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



Exhibit D-1

Form of Assignment and Assumption



 


 









 







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



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	[Consented to and]4 Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., 

     as
Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:]5	 	 
	 
	 	 	 	 
	WASTE CONNECTIONS, INC.,

on behalf of itself and the other Borrowers	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





	 









	 	 	 
	4	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.

	 
	5	 	To be added only if the consent of the Borrower and/or
other parties (e.g. Swing Line Lender, L/C Issuer) is required by the
terms of the Credit Agreement.





Exhibit D-1

Form of Assignment and Assumption




 


 









 







ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




1. Representations and Warranties.



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



1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any, as may
be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in
making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of
such type, (v) it has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 6.04 thereof, as applicable, and such other documents and information
as it deems appropriate to make its own credit analysis and decision to enter into this Assignment
and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees
that (i) it will, independently and without reliance upon the Administrative Agent, [the][any]
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to be performed
by it as a Lender.



Exhibit D-1

Form of Assignment and Assumption



 


 









 







2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



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



Exhibit D-1

Form of Assignment and Assumption



 


 









 







EXHIBIT D-2




FORM OF ADMINISTRATIVE QUESTIONNAIRE




	 	 	 
	FAX ALONG WITH COMMITMENT LETTER TO:
	 	 
	 

	 	 
	FAX #
	 	 
	 

	 	 






I.
Borrower Name: Waste Connections, Inc. and certain of its
Subsidiaries




$
                          Type of Credit Facility                                         



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





	    •	 	Signing Credit Agreement
 _____ 
YES
 _____ 
NO

	 
	    •	 	Coming in via Assignment
 _____ 
YES
 _____ 
NO






	 	 	 
	III. Type of Lender:
	 	 
	 

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






	 	 	 
	IV. Domestic Address:

	 	V. LIBOR Rate Address:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 






VI. Contact Information:




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



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Primary	 	 	Secondary	 
	 	 	Credit Contact	 	 	Operations Contact	 	 	Operations Contact	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Telephone:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Facsimile:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	E Mail Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 






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




Exhibit D-2

Form of Administrative Questionnaire



 


 









 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	 	Draft Documentation	 	 	 	 
	 	 	Contact	 	 	Contact	 	 	Legal Counsel	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Telephone:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Facsimile:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	E Mail Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 






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



	 	 	 
	Pay to:
	 	 
	 
	 	 
	 

	 	 
	 

	 	(Bank Name)
	 
	 	 
	 

	 	 
	 

	 	(ABA #)
	 
	 	 
	 

	 	 
	 

	 	(Account #)
	 
	 	 
	 

	 	 
	 

	 	(Attention)






VIII. Lender’s Fed Wire Payment Instructions:




	 	 	 	 	 
	Pay to:
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	(Bank Name)	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	(ABA#)
	 	(City/State)
	 
	 	 	 	 
	 	 	 
	 

	 	(Account #)
	 	(Account Name)
	 
	 	 	 	 
	 	 	 
	 

	 	(Attention)	 	 






Exhibit D-2

Form of Administrative Questionnaire



 


 









 







IX. Organizational Structure and Tax Status




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



Lender Taxpayer Identification Number (TIN):                                                             




Tax Withholding Form Delivered to Bank of America*:



                     W-9



                     W-8BEN



                     W-8ECI



                     W-8EXP



                     W-8IMY



NON—U.S. LENDER INSTITUTIONS




1. Corporations:



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



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



2. Flow-Through Entities




If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form

W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches
for United States Tax Withholding) must be completed by the intermediary together with a
withholding statement. Flow-through entities other than Qualified Intermediaries are required to
include tax forms for each of the underlying beneficial owners.



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



Exhibit D-2

Form of Administrative Questionnaire




 


 











 







U.S. LENDER INSTITUTIONS:



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



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





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










X. Bank of America Payment Instructions:




	 	 	 
	Pay to:

	 	Bank of America, N.A.
	 

	 	ABA # 026009593
	 

	 	New York, NY
	 

	 	Acct. #
	 

	 	Attn: Corporate Credit Services
	 

	 	Ref: Waste Connections, Inc.






3/1/07 Revision




Exhibit D-2

Form of Administrative Questionnaire




 


 











 




EXHIBIT
E




FORM
OF INSTRUMENT OF ACCESSION




Dated as of  _____, 20__ 





Reference is hereby made to the Amended and Restated Credit Agreement, dated as of July 11,
2011 (as amended, modified, supplemented or restated and in effect from time to time, the
“Credit Agreement”), by and among Waste Connections, Inc., and certain of its Subsidiaries
party thereto (collectively, the “Borrowers”), the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.



Pursuant to the terms of Section 2.14 of the Credit Agreement, the Borrowers, the
Administrative Agent and
 _____ 
(the “Acceding Lender”) hereby agree as follows:



1. Subject to the terms and conditions of this Accession Agreement, the Acceding Lender hereby
agrees to assume, without recourse to the Lenders or the Administrative Agent, on the Effective
Date (as defined below), [a Revolving Commitment of $
 _____], in accordance with the terms
and conditions set forth in the Credit Agreement. Upon such assumption, the Aggregate Commitments
shall be automatically increased by the amount of such assumption. The Acceding Lender, if not a
Lender party to the Credit Agreement immediately prior to giving effect to this Accession
Agreement, hereby agrees to be bound by, and hereby requests the agreement of the Borrowers and the
Administrative Agent that the Acceding Lender shall be entitled to the benefits of, all of the
terms, conditions and provisions of the Credit Agreement as if such Acceding Lender had been one of
the lending institutions originally executing the Credit Agreement as a “Lender”; provided
that nothing herein shall be construed as making the Acceding Lender liable to the Borrowers or the
other Lenders in respect of any acts or omissions of any party to the Credit Agreement or in
respect of any other event occurring prior to the Effective Date (as defined below) of this
Accession Agreement.



2. The Acceding Lender (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Accession Agreement and to
consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,
(ii) it meets all the requirements of an assignee under Section 10.06(b) of the Credit
Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of its Revolving Commitment, shall have
the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by its Revolving Commitment, and either it, or the Person
exercising discretion in making its decision to make its Revolving Commitment, is experienced in
extending loans of such type, (v) it has received a copy of the Credit Agreement, and has received
or has been accorded the opportunity to receive copies of the most recent financial statements
delivered pursuant to Section 6.04 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision to enter into this
Accession Agreement and to make its Revolving Commitment, (vi) it has,



Exhibit E

Form of Instrument of Accession



 


 









 





independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Accession Agreement and to make its Revolving Commitment, and (vii) if
it is a Foreign Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Acceding Lender;
and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender.



3. The Borrowers jointly and severally represent and warrant to the Administrative Agent and
the Lenders, including the Acceding Lender, that (i) the execution, delivery and performance of
this Accession Agreement and the increase contemplated hereby are within the corporate (or
equivalent company) authority of each of the Borrowers, (ii) all acts, conditions and things
required to be done and performed and to have occurred prior to the execution, delivery and
performance of this Accession Agreement and the increase contemplated hereby, and to render the
same the legal, valid and binding obligation of the Borrowers, enforceable against them in
accordance with its terms, have been done and performed and have occurred in due and strict
compliance with all applicable laws, (iii) a true, correct and complete copy of all corporate (or
equivalent company) action undertaken by the Borrowers in connection with the authorization of the
increase effected by this Accession Agreement has previously been provided to the Administrative
Agent or is attached hereto as Exhibit A, (iv) the representations and warranties of the
Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or
which are contained in any document furnished at any time under or in connection herewith or
therewith, were true and correct when made and are be true and correct on and as of the date
hereof, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier date, and except that
for purposes of this Paragraph 3, the representations and warranties contained in
Section 5.04(a) of the Credit Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.04 of the
Credit Agreement, and (v) at and as of the date hereof, no Default or Event of Default exists.



4. The effective date for this Accession Agreement shall be [_____, 20___] (the
“Effective Date”). Following the execution of this Accession Agreement by the Borrowers
and the Acceding Lender, it will be delivered to the Administrative Agent for acceptance, in the
case the Acceding Lender was not a Lender party to the Credit Agreement immediately prior to the
Effective Date of this Accession Agreement, and recordation. Upon acceptance by the Administrative
Agent, if required, and recordation by the Administrative Agent, Schedule 2.01 to the
Credit Agreement shall thereupon be replaced as of the Effective Date by the Schedule 2.01
annexed hereto. The Administrative Agent shall thereafter notify the other Lenders of the revised
Schedule 2.01 and the arrangements proposed to ensure that the outstanding amount of
Committed Loans made by each Lender will correspond to its respective Revolving Percentage after
giving effect to the accession contemplated hereby.



Exhibit E

Form of Instrument of Accession



 


 









 





5. Upon such acceptance, from and after the Effective Date, the Borrowers shall make all
payments in respect of the Acceding Lender’s Revolving Commitment, including payments of principal,
interest, fees and other amounts, to the Administrative Agent for the account of the Acceding
Lender.



6. THIS ACCESSION AGREEMENT SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPALS
THEREOF (OTHER THAN SECTION 5-1501 AND 5-1502 OF THE NEW YORK GENERAL OBLIGATIONS LAW).



7. This Accession Agreement may be executed in any number of counterparts, which shall
together constitute but one and the same agreement.



Exhibit E

Form of Instrument of Accession



 


 









 





IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this
Accession Agreement to be executed on its behalf by its officer thereunto duly authorized, to take
effect as of the date first above written.



	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[INSERT NAME OF ACCEDING LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WASTE CONNECTIONS, INC.,

on behalf of itself and the other Borrowers	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Exhibit E

Form of Instrument of Accession



 


 









 





SCHEDULE 2.01





(i) Attach updated Schedule 2.01 reflecting



Revolving Commitments and Applicable Percentages




Exhibit E

Form of Instrument of Accession



 


 









 





Exhibit A




Borrowers’ resolutions authorizing increase (if not already provided to the Administrative Agent)



Exhibit E

Form of Instrument of Accession