AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT Dated as of November 17, 2004 by and Among WASTE CONNECTIONS, Inc. AND ITS SUBSIDIARIES (The “Borrowers”) THE LENDING INSTITUTIONS PARTY HERETO (The “Lenders”) and BANK OF AMERICA, N.A., as …

Exhibit 10.25

AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT

Dated as of November 17, 2004

by and among

WASTE CONNECTIONS, Inc.

AND ITS SUBSIDIARIES

(the “Borrowers”)

THE LENDING INSTITUTIONS PARTY HERETO

(the “Lenders”)

and

BANK OF AMERICA, N.A.,

as Administrative Agent

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Syndication Agent

With

BANC OF AMERICA SECURITIES LLC. and

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers

and

WELLS FARGO BANK, CALYON NEW YORK BRANCH

and UNION BANK of CALIFORNIA,

as Documentation Agents

1. DEFINITIONS AND RULES OF INTERPRETATION 1

1.1. Definitions 1

1.2. Rules of Interpretation 21

2. THE REVOLVING CREDIT FACILITY 22

2.1. Commitment to Lend 22

2.2. Reduction of Total Revolving Credit Commitment 23

2.3. Evidence of Indebtedness; Revolving Credit Notes 23

2.4. Interest on Revolving Credit Loans 24

2.5. Requests for Revolving Credit Loans 24

2.6. Funds for Revolving Credit Loans 25

2.7. Maturity of the Revolving Credit Loans 26

2.8. Mandatory Repayments of the Revolving Credit Loans 26

2.9. Optional Prepayments or Repayments of Revolving Credit Loans 26

2.10. Swing Line Loans; Settlements 27

3. LETTERS OF CREDIT 29

3.1. Letter of Credit Commitments 29

3.1.1. Commitment to Issue Letters of Credit 29

3.1.2. Letter of Credit Applications 30

3.1.3. Terms of Letters of Credit 31

3.1.4. Reimbursement Obligations of Lenders 31

3.1.5. Participations of Lenders 32

3.1.6. Existing Letters of Credit 32

3.1.7. Auto Extension Letters of Credit 32

3.2. Reimbursement Obligation of the Borrowers 33

3.3. Letter of Credit Payments 34

3.4. Obligations Absolute 34

3.5. Role of Issuing Lender 35

3.6. Letter of Credit Amounts 36

3.7. Applicability of ISP 36

4. THE TERM LOAN FACILITY 36

4.1. Commitment to Lend 36

4.2. Evidence of Indebtedness; Term Notes 36

4.3. Scheduled Installment Payments of Principal of Term Loan 37

4.4. Mandatory Prepayments of Loans 37

4.4.1. Mandatory Prepayments 37

4.4.2. Application of Payments 37

4.5. Optional Prepayment of Term Loan 38

4.6. Interest on Term Loan 38

4.7. Pari Passu Treatment of Term Loans 38

5. FEES, PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL LIABILITY 39

5.1. Fees 39

5.2. Payments 39

5.3. Computations 41

5.4. Capital Adequacy 41

5.5. Certificate 42

5.6. Interest on Overdue Amounts 42

5.7. Interest Limitation 42

5.8. Election of Eurodollar Rate; Notice of Election; Interest Periods; MinimumAmounts 42

5.9. Eurodollar Indemnity 43

5.10. Illegality; Inability to Determine Eurodollar Rate 44

5.11. Additional Costs, Etc 44

5.12. Replacement of Lenders 45

5.13. Concerning Joint and Several Liability of the Borrowers 46

6. REPRESENTATIONS AND WARRANTIES 49

6.1. Corporate Authority 49

6.2. Governmental Approvals 50

6.3. Title to Properties; Leases 50

6.4. Financial Statements; Solvency 50

6.5. No Material Changes, Etc 50

6.6. Permits, Franchises, Patents, Copyrights, Etc 51

6.7. Litigation 51

6.8. No Materially Adverse Contracts, Etc 51

6.9. Compliance With Other Instruments, Laws, Etc 51

6.10. Tax Status 51

6.11. No Event of Default 51

6.12. Holding Company and Investment Company Acts 51

6.13. Absence of Financing Statements, Etc 52

6.14. Employee Benefit Plans 52

6.15. Use of Proceeds 53

6.15.1. General 53

6.15.2. Regulations U and X 53

6.15.3. Ineligible Securities 53

6.16. Environmental Compliance 53

6.17. Perfection of Security Interests 54

6.18. Transactions with Affiliates 54

6.19. Subsidiaries 54

6.20. True Copies of Charter and Other Documents 54

6.21. Disclosure 55

6.22. Capitalization 55

6.23. Foreign Assets Control Regulations, Etc 55

6.24. Guarantees of Excluded Subsidiaries 56

7. AFFIRMATIVE COVENANTS OF THE BORROWERS 56

7.1. Punctual Payment 56

7.2. Maintenance of Offices 56

7.3. Records and Accounts 56

7.4. Financial Statements, Certificates and Information 56

7.5. Legal Existence and Conduct of Business 58

7.6. Maintenance of Properties 58

7.7. Insurance 58

7.8. Taxes 59

7.9. Inspection of Properties, Books, and Contracts 59

7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of MaterialLicenses and Permits 59

7.11. Environmental Indemnification 60

7.12. Further Assurances 60

7.13. Notice of Potential Claims or Litigation 60

7.14. Notice of Certain Events Concerning Insurance and Environmental Claims 60

7.15. Notice of Default 61

7.16. New Subsidiaries 61

7.17. Employee Benefit Plans 62

7.18. Notice of Permitted Debt Offerings 62

8. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS 62

8.1. Restrictions on Indebtedness 62

8.2. Restrictions on Liens 63

8.3. Restrictions on Investments 65

8.4. Merger, Consolidation and Disposition of Assets 67

8.4.1. Mergers and Acquisitions 67

8.4.2. Disposition of Assets 68

8.5. Sale and Leaseback 68

8.6. Restricted Payments and Redemptions 69

8.7. Employee Benefit Plans 69

8.8. Negative Pledges 70

8.9. Business Activities 70

8.10. Transactions with Affiliates 70

8.11. Subordinated Debt 70

9. FINANCIAL COVENANTS 71

9.1. Leverage Ratio 71

9.2. Senior Funded Debt to EBITDA 71

9.3. Interest Coverage Ratio 71

9.4. Consolidated Net Worth 71

9.5. Capital Expenditures 71

10. CLOSING CONDITIONS 71

10.1. Corporate Action 71

10.2. Loan Documents, Etc 72

10.3. Certificate of Secretary; Good Standing Certificates 72

10.4. Validity of Liens 72

10.5. Perfection Certificates and UCC Search Results 72

10.6. Certificates of Insurance 72

10.7. Legal Opinions 73

10.8. Environmental Permit Certificate 73

10.9. Payment of Fees 73

10.10. Closing Certificate 73

10.11. Compliance Certificate 73

10.12. Subordinated Debt 73

10.13. Payoff 73

10.14. Closing Documentation, Etc 74

11. CONDITIONS OF ALL LOANS 74

11.1. Representations True; No Event of Default 74

11.2. Performance; No Event of Default 74

11.3. No Legal Impediment 74

11.4. Governmental Regulation 74

11.5. Proceedings and Documents 74

12. COLLATERAL SECURITY 75

13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT 76

13.1. Events of Default and Acceleration 76

13.2. Termination of Commitments 79

13.3. Remedies 79

13.4. Distribution of Collateral Proceeds 79

14. SETOFF 80

15. THE ADMINISTRATIVE AGENT 81

15.1. Appointment and Authorization 81

15.2. Rights as a Lender 81

15.3. Exculpatory Provisions 82

15.4. Reliance by Administrative Agent 83

15.5. Delegation of Duties 83

15.6. Resignation of Administrative Agent 83

15.7. Non-Reliance on Administrative Agent and Other Lenders 84

15.8. No Other Duties, Etc 84

15.9. Closing Documentation, Etc 84

15.10. Payments 85

15.10.1. Payments to Administrative Agent 85

15.10.2. Distribution by Administrative Agent 85

15.10.3. Delinquent Lenders 85

15.11. Holders of Notes 86

15.12. Indemnity 86

15.13. Notification of Defaults and Events of Default 86

15.14. Duties in the Case of Enforcement 86

15.15. Administrative Agent May File Proofs of Claim 87

15.16. Duties of Syndication Agent and Documentation Agents 88

16. EXPENSES AND INDEMNIFICATION 88

16.1. Expenses 88

16.2. Indemnification 89

16.3. Survival 89

17. SURVIVAL OF COVENANTS, ETC. 89

18. ASSIGNMENTS AND PARTICIPATION 90

19. PARTIES IN INTEREST 94

20. NOTICES, ETC 94

20.1. Notices Generally 94

20.2. Electronic Communications 95

21. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION 95

21.1. Prior Notification 96

21.2. Other 96

22. MISCELLANEOUS 96

23. ENTIRE AGREEMENT, ETC 97

24. WAIVER OF JURY TRIAL 97

25. GOVERNING LAW 97

26. Consents, Amendments, Waivers, Etc 98

27. Borrowers’ Representative 99

28. Severability 99

29. EXISTING Credit Agreement 100

29.1. Existing Credit Agreement Superseded 100

29.2. Interest and Fees under Superseded Agreement 100

30. USA PATRIOT ACT 100

Schedules & Exhibits

Exhibit A Form of Loan and Letter of Credit Request

Exhibit B Form of Compliance Certificate

Exhibit C Form of Environmental Compliance Certificate

Exhibit D Form of Assignment and Acceptance

Exhibit E Form of Joinder Agreement

Exhibit F Form of Instrument of Accession

Schedule 1 Lenders; Addresses; Commitment Percentages

Schedule 2 Subsidiaries

Schedule 3.1 Letters of Credit

Schedule 4.3 Term Loan Installment Payments

Schedule 6.7 Litigation

Schedule 6.16 Environmental Matters

Schedule 6.18 Transactions with Affiliates

Schedule 7.7 Self Insurance Programs

Schedule 8.2(j) Scheduled Contracts

Schedule 8.2(k) Existing Liens

Schedule 8.3 Existing Investments

AMENDED AND RESTATED REVOLVING

CREDIT AND TERM LOAN AGREEMENT

This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENTis made as of November 17, 2004 (the “Credit Agreement“), by and among(a)  WASTE CONNECTIONS, INC., a Delaware corporation (the “Parent“),the Subsidiaries of the Parent identified on Schedule 2 hereto (collectively with theParent, the “Borrowers“), (b) BANK OF AMERICA, N.A., a nationalbanking association having a place of business at 100 Federal Street, Boston, Massachusetts 02110(acting in its individual capacity, “Bank of America“), and theother banks and lending institutions which are identified on Schedule 1 attached hereto(collectively, the “Lenders“), (c) BANK OF AMERICA, N.A., asadministrative agent for the Lenders (the “Administrative Agent“), and (d)DEUTSCHE BANK TRUST COMPANY AMERICAS, as syndication agent for the Lenders (the”Syndication Agent“).

W I T N E S S ET H:

WHEREAS, the Borrowers and the Administrative Agent are party to thatcertain Amended and Restated Revolving Credit Agreement dated as of October 22, 2003, (as amendedand in effect as of the date hereof, the “Existing CreditAgreement“); and

WHEREAS, the Borrowers have requested, among other things, additionalfinancing and the Lenders are willing to provide such financing on the terms and conditions setforth herein;

NOW, THEREFORE, in consideration of the foregoing, the mutual covenantsand agreements set forth herein below, and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree that on the Closing Date,the Existing Credit Agreement shall be amended and restated in its entirety by this CreditAgreement, the terms of which are as follows:

    1. DEFINITIONS AND RULES OF INTERPRETATION.
      1. Definitions.
      2. The following terms shall have the meanings set forth in this 1 or elsewhere inthe provisions of this Credit Agreement referred to below:

        Acceding Lender. See 18(g).

        Accountants. An independent accounting firm of national standingreasonably acceptable to the Required Lenders and the Administrative Agent.

        Administrative Agent. See Preamble.

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

        Affected Lender. See 5.12.

        Affiliate. Any Person that would be considered to be an affiliate of anyother Person under Rule 144(a) of the Rules and Regulations of the Securities and ExchangeCommission, as in effect on the date hereof, if such other Person were issuing securities.

        Applicable Base Rate Margin. The applicable marginwith respect to Base Rate Loans as set forth in the Pricing Table.

        Applicable Commitment Rate. The applicable rate withrespect to the Commitment Fee as set forth in the Pricing Table.

        Applicable Eurodollar Margin. The applicable margin with respect toEurodollar Loans as set forth in the Pricing Table.

        Applicable Laws. See 7.10.

        Applicable L/C Margin. The applicable margin with respect to the Letterof Credit Fee as set forth in the Pricing Table.

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

        Assignment and Acceptance. See 18(a).

        Balance Sheet Date. December 31, 2003.

        Bank of America. See Preamble.

        Base Rate. For any day a fluctuating rate per annum equal to the higherof (a) the Federal Funds Rate plus one half of one percent (0.5%) and (b) the rate of interest ineffect for such day as publicly announced from time to time by Bank of America as its “primerate.” The “prime rate” is a rate set by Bank of America based upon various factorsincluding Bank of America’s costs and desired return, general economic conditions and otherfactors, and is used as a reference point for pricing some loans, which may be priced at, above, orbelow such announced rate. Any change in such rate announced by Bank of America shall take effectat the opening of business on the date specified in the public announcement of such change.

        Base Rate Loans. Loans bearing interest calculated byreference to the Base Rate.

        Borrowers. The Parent and the Subsidiaries other than the ExcludedSubsidiaries.

        Business Day. Any day on which banking institutions in Boston,Massachusetts and New York, New York are open for the transaction of banking business.

        Capital Assets. Fixed assets, both tangible (such as land, buildings,fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks,franchises and goodwill); provided that Capital Assets shall not include (a) any itemcustomarily charged directly to expense or depreciated over a useful life of twelve (12) months orless in accordance with generally accepted accounting principles, or (b) any item obtainedthrough an acquisition permitted by 8.4 hereof.

        Capital Expenditures. Amounts paid or indebtednessincurred by the Borrowers and their Subsidiaries in connection with (i) the purchase or lease ofCapital Assets that would be required to be capitalized and shown on the balance sheet of suchPerson in accordance with GAAP or (ii) the lease of any assets by the Borrowers or any Subsidiaryas lessee under any Synthetic Lease to the extent that such assets would have been Capital Assetshad the Synthetic Lease been treated for accounting purposes as a Capitalized Lease.

        Capital Stock. Any and all shares, interests, participations orother equivalents (however designated) of capital stock of a corporation, any and all equivalentownership interests in a Person (other than a corporation) and any and all warrants, rights oroptions to purchase any of the foregoing.

        Capitalized Leases. Leases under which any Borrower is the lessee orobligor, the discounted future rental payment obligations under which are required to becapitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

        CERCLA. See definition of Release.

        Certified. With respect to the financial statements of any Person, suchstatements as audited by a firm of independent auditors, whose report expresses the opinion,without qualification, that such financial statements present fairly the financial position of suchPerson.

        CFO. See 7.4(b).

        Closing Date. The date on which the conditions precedent setforth in 10 are satisfied.

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

        Collateral. All of the property, rights and interests of the Borrowersthat are or are intended to be subject to the security interests created by the SecurityDocuments.

        Commitment. With respect to each Revolving Credit Lender, the amountdetermined by multiplying such Lender’s Commitment Percentage by the Total Revolving CreditCommitment, as the same may be increased or reduced from time to time pursuant to the provisionshereof, or if such Commitment is terminated pursuant to the provisions hereof, zero.

        Commitment Fee. See 5.1.

        Commitment Percentage. With respect to each Revolving CreditLender, the percentage set forth on Schedule 1 hereto as such Lender’spercentage of the Total Revolving Credit Commitment (subject to adjustment in accordance with 18).

        Compliance Certificate. See 7.4(c).

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

        Consolidated Earnings Before Interest and Taxes or EBIT. For any period,the Consolidated Net Income (or Deficit) of the Borrowers determined in accordance with GAAP,plus (a) interest expense, (b) income taxes, (c) non-cash stock compensation charges, to theextent that such charges were deducted in determining Consolidated Net Income (or Deficit), all asdetermined in accordance with GAAP, (d) minority interest expense, (e) non-cash extraordinary non-recurring writedowns or writeoffs of assets, including non-cash losses on the sale of assetsoutside the ordinary course of business, (f) any losses associated with the extinguishment ofIndebtedness of the Borrowers, (g) special charges relating to the termination of a Swap Contractand (h) any accrued settlement payments in respect of any Swap Contract owing by the Borrowersminus (i) non-cash extraordinary gains on the sale of assets to the extent included inConsolidated Net Income (or Deficit) and (j) any accrued settlement payments in respect of any SwapContact payable to the Borrowers.

        Consolidated Earnings Before Interest, Taxes,Depreciation, and Amortization or EBITDA. For any period (without duplication), (a) EBITplus the depreciation expense and amortization expense, to the extent that each wasdeducted in determining Consolidated Net Income (or Deficit), determined in accordance with GAAP,plus (b) the depreciation expense and amortization expense (without duplication) of anycompany whose EBIT was included under clause (c) hereof, plus (c) EBIT for the prior twelve(12) months of companies acquired by the Borrowers during the respective reporting period (withoutduplication) provided that (i) the financial statements of such acquired companieshave been audited for the period sought to be included by an independent accounting firmsatisfactory to the Administrative Agent, or (ii) the Administrative Agent consents to suchinclusion after being furnished with other acceptable financial statements, and providedfurther that such acquired EBIT may be further adjusted to add-back non-recurring privatecompany expenses which are discontinued upon acquisition (such as owner’s compensation), asapproved by the Administrative Agent. Simultaneously with the delivery of the financial statementsreferred to in (i) and (ii) above, the CFO of the Parent shall deliver to the Administrative Agenta Compliance Certificate and appropriate documentation certifying the historical operating results,adjustments and balance sheet of the acquired company.

        Consolidated Net Income (or Deficit). Theconsolidated net income (or deficit) of the Borrowers after deduction of all expenses, taxes, andother proper charges, determined in accordance with GAAP.

        Consolidated Net Worth. The excess of Consolidated Total Assets overConsolidated Total Liabilities, less, to the extent otherwise includable in the computationof Consolidated Net Worth, any subscriptions receivable.

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

        Consolidated Total Funded Debt. With respect to theBorrowers and any Receivables SPV, the sum, without duplication, of (a) the aggregate amount ofIndebtedness of the Borrowers on a consolidated basis, relating to (i) the borrowing of money orthe obtaining of credit, including the issuance of notes, bonds, debentures or similar debtinstruments, (ii) in respect of any Capitalized Leases and Synthetic Leases, (iii) the non-contingent deferred purchase price of assets and companies (typically known as holdbacks) to theextent recognized as a liability of any Borrower in accordance with GAAP, but excluding (A) short-term trade payables incurred in the ordinary course of business and (B) the Pierce County Put, and(iv) any unpaid reimbursement obligations with respect to letters of credit outstanding, butexcluding 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 Borrowerguaranteed by the Borrowers.

        Consolidated Total Interest Expense. For any period, the aggregateamount of interest required to be paid or accrued by the Borrowers during such period on allIndebtedness of the Borrowers outstanding during all or any part of such period, whether suchinterest was or is required to be reflected as an item of expense or capitalized, includingpayments consisting of interest in respect of any Capitalized Lease or any Synthetic Lease andincluding commitment fees, agency fees, facility fees, balance deficiency fees and similar fees orexpenses in connection with the borrowing of money, but (a) excluding (i) any amortizationand other non-cash charges or expenses incurred during such period to the extent included indetermining consolidated interest expense, including without limitation, non-cash amortization ofdeferred debt origination and issuance costs and amortization of accumulated other comprehensiveincome, (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 the Borrowers and (iv)to the extent included as an item of interest expense, any premium paid to repurchase or redeem anyof the Convertible Subordinated Notes, and (b) including any accrued settlement payments inrespect of any Swap Contract owing by the Borrowers.

        Consolidated Total Liabilities. All liabilities of the Borrowers and anyReceivables SPV determined on a consolidated basis in accordance with GAAP and classified as suchon the consolidated balance sheet of the Borrowers.

        Conversion Request. A notice given by the Borrowers to theAdministrative Agent of the Borrowers’ election to convert or continue a Loan in accordance with 5.8.

        Convertible Subordinated Notes. The 2022 ConvertibleSubordinated Notes or any replacement of the 2022 Convertible Subordinated Notes effectuated inaccordance with 8.11 herein.

        Credit Agreement. See Preamble.

        Debtor Relief Laws. The Bankruptcy Code of the UnitedStates, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit ofcreditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtorrelief laws of the United States or other applicable jurisdictions from time to time in effect andaffecting the rights of creditors generally.

        Default. See 13.

        Delinquent Lender. See 15.5.3.

        Disposal (or Disposed). See definition of Release.

        Distribution. The declaration or payment of any dividend or distributionon or in respect of any shares of any class of Capital Stock (other than dividends or otherdistributions payable solely in shares of Capital Stock); the purchase, redemption, or otherretirement of any shares of any class of Capital Stock, directly or indirectly through a Subsidiaryor otherwise; the return of equity capital by any Person to its shareholders, partners or membersas such; or any other distribution on or in respect of any shares of any class of CapitalStock.

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

        Drawdown Date. The date on which any Loan is made or is to bemade, and the date on which any Loan is converted or continued in accordance with 5.8, or the datethat any draft or other form of demand for payment is honored with respect to a Letter ofCredit.

        Eligible Assignee. Any of (a) a Lender, (b) an Affiliate of a Lender,(c) an Approved Fund and (d) any other Person (other than a natural person) approved by (i) theAdministrative Agent and (ii) unless a Default or an Event of Default has occurred and iscontinuing, the Parent (each such approval not to be unreasonably withheld or delayed); providedthat notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrowers,or their Subsidiaries or any of their Affiliates.

        Eligible Foreign Lender. (a) Any commercial bank organized under thelaws of any other country which is a member of the Organization for Economic Cooperation andDevelopment (the “OECD“), or a political subdivision of any such country,provided that such bank is acting through a branch or agency located in the countryin which it is organized or another country which is also a member of the OECD; or (b) the centralbank of any country which is a member of the OECD.

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

        Environmental Laws. See 6.16(a).

        EPA. See 6.16(b).

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

        ERISA Affiliate. Any Person which is treated as a single employerwith the Borrowers under 414 of the Code.

        ERISA Reportable Event. A reportable event with respect toa Guaranteed Pension Plan within the meaning of 4043 of ERISA and the regulations promulgatedthereunder.

        Eurocurrency Reserve Percentage. The maximum percentage(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined by AdministrativeAgent which is in effect during any relevant period, as prescribed by the Board of Governors of theFederal Reserve System (or any successor) for determining the reserve requirements (includingsupplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding(currently referred to as “Eurocurrency Liabilities”) of a member bank in suchsystem.

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

        Eurodollar Interest Determination Date. For anyInterest Period, the date two Eurodollar Business Days prior to the first day of such InterestPeriod.

        Eurodollar Loans. Revolving Credit Loans and all or any portionof the Term Loan bearing interest calculated by reference to the Eurodollar Rate.

        Eurodollar Rate. For any Interest Period with respect to aEurodollar Loan denominated in Dollars, the interest rate per annum determined by theAdministrative Agent by dividing (the resulting quotient rounded upward to the nearest 1/100 of 1%per annum) (a) the rate of interest determined by the Administrative Agent (which determinationshall be conclusive absent manifest error) to be the average of the London interbank offered ratesof interest per annum for U.S. Dollars set forth on Moneyline TeleratePage 3750 or such other display page on the Moneyline Telerate system as may replace such pageto evidence the average of rates quoted by banks designated by the British Bankers’ Association (orappropriate successor or, if the British Bankers’ Association or its successor ceases to providesuch quotes, a comparable replacement determined by the Administrative Agent) at 11:00 a.m. (Londontime) two (2) Business Days prior to the first day of such Interest Period for an amount comparableto such Eurodollar Loan and having a borrowing date and a maturity comparable to such InterestPeriod or if the applicable display page shall not be available, the rate per annum determined bythe Administrative Agent as the rate of interest at which deposits in the relevant currency fordelivery on the first day of such Interest Period in same day funds in the approximate amount ofthe Eurodollar Loan being made, continued or converted by Bank of America and with a termequivalent to such Interest Period would be offered by Bank of America’s London Branch (or otherBank of America branch or Affiliate) to major banks in the London or other offshore interbankmarket for such currency at their request at approximately 11:00 a.m. (London time) two BusinessDays prior to the first day of such Interest Period, by (b) a number equal to 1.00 minus theEurocurrency Reserve Percentage. The Eurodollar Rate may also be expressed by the followingformula:

        Moneyline Telerate Page 3750 quoted by British

        Eurodollar Rate = Bankers’ Association or appropriate successor

        1.00 – Eurocurrency Reserve Percentage

        Event of Default. See 13.

        Evergreen Option. The option of the Parent to acquire up to 299.5shares of Class A Common Stock of Evergreen National Indemnity Company, an Ohio property andcasualty insurance company d/b/a Evergreen/UNI (“Evergreen“), up to 2,088.5 sharesof Class B Common Stock of Evergreen and up to one-half share of Class C Common Stock of Evergreenon or before March 31, 2008.

        Evergreen Shares. Collectively, the 299.5 shares of Class A Common Stockof Evergreen, 2,088.5 shares of Class B Common Stock of Evergreen and one-half share of the Class CCommon Stock of Evergreen currently owned by the Parent and pledged to Evergreen.

        Excluded Assets. The containers, vehicles, equipment and inventory inwhich the Lenders are precluded from taking a security interest pursuant to any Scheduled Contractduring the term of such Scheduled Contract.

        Excluded Subsidiaries. Each of the Subsidiaries listed onSchedule 2 hereto under the heading “Excluded Subsidiaries”.

        Existing Credit Agreement. See preamble.

        Federal Funds Rate. For any day, the rate per annum equalto the weighted average of the rates on overnight Federal funds transactions with members of theFederal Reserve System arranged by Federal funds brokers on such day as published by the FederalReserve Bank of New York on the Business Day next succeeding such day; provided that (a) if suchday is not a Business Day, the Federal Funds Rate for such day shall be such rate on suchtransactions on the next preceding Business Day as so published on the next succeeding BusinessDay, and (b) if no such rate is so published on such next succeeding Business Day, the FederalFunds Rate for such day will be the average rate (rounded upward if necessary, to a whole multipleof 1/100 of 1%) charged to Bank of America on such day on such transaction as determined by theAdministrative Agent.

        Fees. Collectively, the Commitment Fee, the Letter of Credit Fees, thefees payable pursuant to the fee letters, and any other fees payable hereunder or under the otherLoan Documents.

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

        Financial Letter of Credit. A Letter of Credit wherethe event which triggers payment is financial, such as the failure to pay money, and notperformance-related, such as failure to ship a product or provide a service, as set forth ingreater detail in the letter dated March 30, 1995 from the Board of Governors of the FederalReserve System or in any applicable directive or letter ruling of the Board of Governors of theFederal Reserve System issued subsequent thereto.

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

        generally accepted accountingprinciples or GAAP. Generally accepted accounting principles in the UnitedStates of America. Except as otherwise expressly provided herein, all terms of an accounting orfinancial nature shall be construed in accordance with GAAP, as in effect from time to time;provided that if the Borrowers notify the Administrative Agent that the Borrowersrequest an amendment to any provision hereof to eliminate the effect of any change occurring afterDecember 31, 2003 in GAAP or in the application thereof on the operation of such provision (or ifthe Administrative Agent notifies the Borrowers that the Required Lenders request an amendment toany provision hereof for such purpose), regardless of whether any such notice is given before orafter such change in GAAP or in the application thereof, then such provision shall be interpretedon the basis of GAAP as in effect and applied immediately before such change shall have becomeeffective until such provision has been amended in accordance herewith.

        Governmental Authority. The government of the United States orany 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 exercisingexecutive, legislative, judicial, taxing, regulatory or administrative powers or functions of orpertaining to government (including any supra-national bodies such as the European Union or theEuropean Central Bank).

        Guaranteed Pension Plan. Any employee pension benefit planwithin the meaning of 3(2) of ERISA maintained or contributed to by the Borrowers or any ERISAAffiliate, the benefits of which are guaranteed on termination in full or in part by the PBGCpursuant to Title IV of ERISA, other than a Multiemployer Plan.

        Hazardous Substances. Any hazardous waste, asdefined by 42 U.S.C. 6903(5), any hazardous substances as defined by 42 U.S.C. 9601(14), anypollutant or contaminant as defined by 42 U.S.C. 9601(33) and any toxic substances, oil orhazardous materials or other chemicals or substances regulated by any Environmental Laws.

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

          1. every obligation of such Person for money borrowed,
          2. every obligation of such Person evidenced by bonds, debentures, notes orother similar instruments, including obligations incurred in connection with the acquisition ofproperty, assets or businesses,
          3. every reimbursement obligation of such Person with respect to letters ofcredit, bankers’ acceptances or similar facilities issued for the account of such Person,
          4. the net present value (using the Base Rate as the discount rate) of everyobligation 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 accruedliabilities arising in the ordinary course of business which are not overdue or which are beingcontested in good faith and (B) contingent purchase price obligations solely to the extent that thecontingency upon which such obligation is conditioned has not yet occurred),
          5. every obligation of such Person under any Capitalized Lease,
          6. every obligation of such Person under any Synthetic Lease,
          7. all sales by such Person of (A) accounts or general intangibles for moneydue or to become due, (B) chattel paper, instruments or documents creating or evidencing a right topayment of money or (C) other receivables (collectively, “Receivables“), whetherpursuant to a purchase facility or otherwise, other than in connection with the disposition of thebusiness operations of such Person relating thereto or a disposition of defaulted Receivables forcollection and not as a financing arrangement, and together with any obligation of such Person topay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts inconnection therewith, provided, however, that sales referred to in clauses (B) and (C) shallnot constitute Indebtedness to the extent that such sales are non-recourse to such Person;
          8. every obligation of such Person (an “equity related purchaseobligation”) to purchase, redeem, retire or otherwise acquire for value any Capital Stock ofany class issued by such Person, or any rights measured by the value of such CapitalStock,
          9. every obligation of such Person under any forward contract, futurescontract, 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,
          10. every obligation in respect of Indebtedness of any other entity (includingany partnership in which such Person is a general partner) to the extent that such Person is liabletherefor 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 liabletherefor and such terms are enforceable under applicable law,
          11. every obligation, contingent or otherwise, of such Person guaranteeing, orhaving the economic effect of guaranteeing or otherwise acting as surety for, any obligation of atype described in any of clauses (i) through (x) (the “primary obligation”) of anotherPerson (the “primary obligor”), in any manner, whether directly or indirectly, andincluding, without limitation, any obligation of such Person (A) to purchase or pay (or advance orsupply funds for the purchase of) any security for the payment of such primary obligation, (B) topurchase property, securities or services for the purpose of assuring the payment of such primaryobligation, or (C) to maintain working capital, equity capital or other financial statementcondition or liquidity of the primary obligor so as to enable the primary obligor to pay suchprimary obligation.
          12. The “amount” or “principal amount” of any Indebtedness atany time of determination represented by (v) any Indebtedness, issued at a price that is less thanthe principal amount at maturity thereof, shall be the amount of the liability in respect thereofdetermined in accordance with generally accepted accounting principles, (w) any Capitalized Leaseshall be the principal component of the aggregate of the rentals obligation under such CapitalizedLease payable over the term thereof that is not subject to termination by the lessee, (x) any saleof 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 onsuch investment, (y) any Synthetic Lease shall be the stipulated loss value, termination valueor other equivalent amount and (z) any equity related purchase obligation shall be the maximumfixed redemption or purchase price thereof inclusive of any accrued and unpaid dividends to becomprised in such redemption or purchase price.

            Ineligible Securities. Securities which may not be underwrittenor dealt in by member banks of the Federal Reserve System under Section 16 of the Banking Actof 1993 (12 U.S.C. 24, Seventh), as amended.

            Instrument of Accession. See 18(g).

            Interest Payment Date. (a) As to any Base Rate Loan, thelast Business Day of each calendar quarter with respect to interest accrued during such calendarquarter, including, without limitation, the calendar quarter which includes the Drawdown Date ofsuch Base Rate Loan; (b) as to any Eurodollar Loan in respect of which the Interest Period is (i) 3months or less, the last day of such Interest Period and (ii) more than 3 months, the date that is3 months from the first day of such Interest Period and, in addition, the last day of such InterestPeriod; and (c) with respect to all Revolving Credit Loans and Swing Line Loans, the RevolvingCredit Maturity Date.

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

            1. if any Interest Period with respect to a Eurodollar Loan would otherwise endon a day that is not a Eurodollar Business Day, that Interest Period shall be extended to the nextsucceeding Eurodollar Business Day unless the result of such extension would be to carry suchInterest Period into another calendar month, in which event such Interest Period shall end on theimmediately preceding Eurodollar Business Day;
            2. if any Interest Period with respect to a Base Rate Loan would end on a daythat is not a Business Day, that Interest Period shall end on the next succeeding BusinessDay;
            3. if the Borrowers shall fail to give notice as provided in 2.5, theBorrowers shall be deemed to have requested a conversion of the affected Eurodollar Loan to a BaseRate Loan and the continuance of all Base Rate Loans as Base Rate Loans on the last day of the thencurrent Interest Period with respect thereto;
            4. any Interest Period relating to any Eurodollar Loan that begins on the lastEurodollar Business Day of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period) shall end on the lastEurodollar Business Day of a calendar month; and
            5. any Interest Period that would otherwise extend beyond the Revolving CreditLoan Maturity Date (if comprising a Revolving Credit Loan) or the Term Loan Maturity Date (ifcomprising the Term Loan or a portion thereof) shall end on the Revolving Credit Loan Maturity Dateor (as the case may be) the Term Loan Maturity Date.

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

            Interim Balance Sheet Date. June 30, 2004.

            IRB Letters of Credit. See 3.1(a).

            Issuer Documents. With respect to any Letter of Credit, theLetter of Credit Application, and any other document, agreement and instrument entered into by theIssuing Lender and the Borrowers or in favor of the Issuing Lender and relating to any such Letterof Credit.

            Issuing Lender. Bank of America.

            Joint Lead Arrangers. Banc of America Securities LLC andDeutsche Bank Securities Inc.

            L/C Supported IRBs. Industrial revenue bonds or solidwaste disposal bonds issued by or at the request of the Borrowers which are backed by IRB Lettersof Credit issued hereunder.

            Lenders. The lending institutions listed on Schedule 1hereto and any other Person who becomes an assignee of any rights and obligations of a Lender orbecomes a Lender pursuant to 4.7 or 18.

            Letter of Credit Applications.Letter of Credit Applications in such form as may be agreed upon by the Borrowers and theAdministrative Agent from time to time which are entered into pursuant to 3 hereof, as such Letterof Credit Applications are amended, varied or supplemented from time to time.

            Letter of Credit Fee. See 5.1(b).

            Letter of Credit Participation. See 3.1.4.

            Letters of Credit. See 3.1.1.

            Letter of Credit Expiration Date. The daythat is thirty days prior to the Revolving Credit Maturity Date (or if such day isnot a Business Day, the next preceding Business Day).

            Letter of Credit Obligations. As of any date, thesum of the Maximum Drawing Amount as of such date and all Unpaid Reimbursement Obligations as ofsuch date. 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 3.6. For allpurposes of this Credit Agreement, if on any date of determination a Letter of Credit has expiredby its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14of the International Standby Practices, such Letter of Credit shall be deemed to be “outstanding”in the amount so remaining available to be drawn.

            Leverage Ratio. See 9.1.

            Loan and Letter of Credit Request.See 2.5.

            Loan Documents. This Credit Agreement, the Notes, the Letter ofCredit Applications, the Letters of Credit, the Security Documents, and the Post-Closing Agreement,each as amended and in effect from time to time.

            Loans. Collectively, the Revolving Credit Loans, the Swing Line Loansand, to the extent applicable, the Term Loan.

            Material Adverse Effect. With respect to any event oroccurrence of whatever nature (including any adverse determination in any litigation, arbitrationor governmental investigation or proceeding):

          13. a material adverse effect on the business, properties, prospects,condition (financial or otherwise), assets, operations or income of the Borrowers; or
          14. any impairment of the validity, binding effect or enforceability of thisCredit Agreement or any of the other Loan Documents, any impairment of the material rights,remedies or benefits available to the Administrative Agent or any Lender under any Loan Document orany impairment of the attachment, perfection or priority of the Liens created by the SecurityDocuments.

        In determining whether any individual event could reasonably be expected toresult in a Material Adverse Effect, notwithstanding that such event does not of itself have sucheffect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of suchevent and all other then existing events could reasonably be expected to result in a MaterialAdverse Effect.

        Maximum Drawing Amount. The maximum aggregate amount fromtime to time that the beneficiaries may draw under outstanding Letters of Credit.

        Maximum Rate. With respect to each Lender, the maximum lawfulnonusurious rate of interest (if any) which under Applicable Law such Lender may charge theBorrowers on the Loans and other Obligations from time to time.

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

        Net Cash Proceeds. The gross cash proceeds received by aPerson in respect of any asset sale, less the sum of (a) all reasonable out-of-pocket fees,commissions and other reasonably and customary direct expenses actually incurred in connection withsuch asset sale, including the amount of any transfer or documentary taxes required to be paid bysuch Person in connection with such asset sale, and (b) the aggregate amount of cash so received bysuch Person which is required to be used to retire (in whole or in part) any Indebtedness (otherthan under the Loan Documents) of such Person permitted by this Credit Agreement that was securedby a lien or security interest permitted by this Credit Agreement having priority over the liensand security interests (if any) of the Administrative Agent (for the benefit of the AdministrativeAgent and the Lenders) with respect to such assets transferred and which is required to be repaidin whole or in part (which repayment, in the case of any other revolving credit arrangement ormultiple advance arrangement, reduces the commitment thereunder) in connection with such assetsale.

        Net Financing Proceeds. With respect to any equity or debtissuance (other than an equity issuance made in connection with the conversion of existingIndebtedness to equity), the net cash proceeds received by such Person for such equity or debtissuance after deduction of all reasonable and customary transaction expenses (including, withoutlimitation, underwriting discounts and commissions) actually incurred in connection with such asale or other issuance.

        Non-U.S. Lender. See 5.2(d).

        Notes. Collectively, the Revolving Credit Notes, theSwing Line Notes and the Term Notes.

        Obligations. All indebtedness, obligations andliabilities of the Borrowers to any of the Lenders or the Administrative Agent, individually orcollectively, existing on the date of this Credit Agreement or arising thereafter, direct orindirect, joint or several, absolute or contingent, matured or unmatured, liquidated orunliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising orincurred under this Credit Agreement or any of the other Loan Documents, or under any Swap Contractbetween the Borrowers and any Lender (or affiliate thereof), or in respect of any of the Loans madeor Reimbursement Obligations incurred or the Letters of Credit or any other instrument at any timeevidencing any thereof.

        Parent. See Preamble.

        Participant. See 18(b).

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

        Performance Letter of Credit. A Letter of Credit which is not aFinancial Letter of Credit.

        Permitted Debt Offering. Any issuance of Indebtedness bythe Parent (other than an issuance of Subordinated Debt made in connection with the prepayment,purchase or replacement of the 2022 Convertible Subordinated Notes effectuated in accordance with 8.11 herein), provided that such Indebtedness (a) is unsecured, (b) is issued pursuant todocumentation containing market terms, and (c) does not exceed $200,000,000 in the aggregate.

        Permitted Debt Offering Maturity Event. Thedate which is ninety-one (91) days prior to the first date on which principal payments in anaggregate amount in excess of $50,000,000 in respect of Permitted Debt Offerings are required to bemade by the Borrowers.

        Permitted Liens. See 8.2.

        Permitted Receivables Transactions. Any sale or sales of, and/orsecuritization of, or transfer of, any Receivables of the Borrowers pursuant to which (a) theReceivables SPV realizes aggregate net proceeds of not more than $75,000,000 at any one timeoutstanding, including, without limitation, any revolving purchase(s) of Receivables where themaximum aggregate uncollected purchase price (exclusive of any deferred purchase price) for suchReceivables at any time outstanding does not exceed $75,000,000, (b) the Receivables shall betransferred or sold to the Receivables SPV at fair market value or at a market discount, and shallnot exceed $100,000,000 in the aggregate at any one time and (c) obligations arising therefromshall be non-recourse to the Borrower and its Subsidiaries (other than the Receivables SPV).

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

        Pierce County LLC. Pierce County Recycling, Composting andDisposal, LLC, a Washington limited liability company.

        Pierce County Management. Pierce County LandfillManagement, Inc., a Delaware corporation.

        Pierce County Put. The put option of the minority interestholders in both Pierce County LLC and Pierce County Management, the exercise of which wouldobligate the Parent to purchase the additional interests of both Pierce County LLC and PierceCounty Management for cash.

        Post-Closing Agreement. The Post-Closing Agreement to be dated as of theClosing Date between the Borrowers and the Administrative Agent.

        Post-Closing Facility Increase. See 18(g).

        PricingTable

        Level

        Leverage Ratio

        Applicable
        Eurodollar
        Margin

        (per annum)

        Applicable Base Rate Margin
        (per annum)

        Applicable

        L/C Margin

        (per annum)

        Applicable

        Commitment Rate

        (per annum)

        I.

        Greater than or equal to 3.50:1

        2.00%

        0.50%

        2.00%

        0.50%

        II.

        Greater than or equal to 3.00:1 but less than 3.50:1

        1.625%

        0.125%

        1.625%

        0.375%

        III.

        Greater than or equal to 2.50:1 but less than 3.00:1

        1.25%

        0.00%

        1.25%

        0.30%

        IV.

        Greater than or equal to 2.00:1 but less than 2.50:1

        1.00%

        0.00%

        1.00%

        0.25%

        VI.

        Less than 2.00:1

        0.875%

        0.00%

        0.875%

        0.20%

        Any change in the applicable margin shall become effective on the first dayafter receipt by the Lenders of financial statements delivered pursuant to 7.4(a) or (b) whichindicate a change in the Leverage Ratio. If at any time such financial statements are notdelivered within the time periods specified in 7.4(a) or (b), the applicable margin shall be thehighest rate set forth in the respective column of the Pricing Table, subject to adjustment uponactual receipt of such financial statements. Notwithstanding the above, the pricing for the periodcommencing on the Closing Date until the date on which the Borrowers deliver to the AdministrativeAgent a Compliance Certificate for the fiscal quarter ending March 31, 2005 shall be no lower thanas set forth for Level IV in the table above.

        Pro Forma Interest Expense. The annual interestobligations at the current rates of interest on existing Indebtedness of the Borrowers and theIndebtedness to be assumed or incurred in connection with an acquisition.

        RCRA. See definition of Release.

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

        Receivables SPV. Any one or more direct or indirect wholly-ownedSubsidiaries of the Parent formed for the sole purpose of engaging in Permitted ReceivablesTransactions, and which engage in no business activities other than those related to PermittedReceivables Transactions.

        Reference Period. As of any date of determination, the period offour (4) consecutive fiscal quarters of the Borrowers ending on such date, or if such date is not afiscal quarter end date, the period of four (4) consecutive fiscal quarters most recently ended (ineach case treated as a single accounting period).

        Register. See 18(d).

        Reimbursement Obligation. The Borrowers’ obligation to reimburse theAdministrative Agent and the Revolving Credit Lenders on account of any drawing under any Letter ofCredit as provided in 3.2.

        Related Parties. With respect to any specified Person, suchPerson’s Affiliates and the respective directors, officers, employees, agents and advisors of suchPerson and such Person’s Affiliates.

        Release. Shall have the meaning specified in the ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 etseq. (“CERCLA“) and the term “Disposal” (or”Disposed“) shall have the meaning specified in the Resource Conservation andRecovery Act of 1976, 42 U.S.C. 6901 et seq. (“RCRA“) andregulations promulgated thereunder; provided that in the event either CERCLA or RCRAis amended so as to broaden the meaning of any term defined thereby, such broader meaning shallapply as of the effective date of such amendment and provided further, to the extent thatthe laws of a state wherein the property lies establishes a meaning for “Release” or”Disposal” which is broader than specified in either CERCLA or RCRA, such broader meaningshall apply.

        Replacement Lender. See 5.11.

        Replacement Notice. See 5.11.

        Required Lenders. As of any date, any combination of Lenders thesum of whose aggregate Revolving Credit Commitments and outstanding principal amount of the TermLoan constitute at least fifty-one percent (51%) of the sum of the Total Revolving CreditCommitment and the total outstanding principal amount of the Term Loan or, if the Total RevolvingCredit Commitment has been terminated or if the Revolving Credit Loan Maturity Date has occurred,any combination of Lenders holding at least fifty-one percent (51%) of the total outstandingprincipal amount of the Loans and the Maximum Drawing Amount and all Unpaid ReimbursementObligations of Letters of Credit on such date.

        Reserve Rate. The rate, expressed as a decimal, at which theLenders would be required to maintain reserves under Regulation D of the Board of Governors of theFederal Reserve System (or any subsequent or similar regulation relating to such reserverequirements) against “Eurocurrency Liabilities” (as such term is defined in RegulationD), or against any other category of liabilities which might be incurred by the Lenders to fundEurodollar Loans, if such liabilities were outstanding.

        Restricted Payment. Any (a) Distribution, (b) payment or prepayment byany Borrower or any Subsidiary to (i) such Borrowers’ or such Subsidiaries shareholders (or otherequity holders), in each case, other than to another Borrower, or (ii) to any Affiliate of suchBorrower or such Subsidiary or any Affiliate of such Borrower’s or such Subsidiary’s shareholders(or other equity holders), in each case, other than to another Borrower or (c) derivatives or othertransactions with any financial institution, commodities or stock exchange or clearinghouse (a”Derivatives Counterparty“) obligating such Borrower or such Subsidiary tomake payments to such Derivatives Counterparty as a result of any change in market value of anyCapital Stock of such Borrower or such Subsidiary.

        Revolving Credit Lenders. The Lenders set forth onSchedule 1 as Revolving Credit Lenders, acting in their role as makers of RevolvingCredit Loans or as participants with respect to Letters of Credit, together with any other Personwho becomes an assignee of any rights and obligations of a Revolving Credit Lender pursuant to 18.

        Revolving Credit Loans. Revolving credit loans made or to be madeby the Revolving Credit Lenders to the Borrowers pursuant to 2.

        Revolving Credit Maturity Date. The earlier of (i) October 22,2009 and (ii) the occurrence of the Permitted Debt Offering Maturity Event.

        Revolving Credit Notes. To the extent requested by any Revolving CreditLender, the promissory notes of the Borrowers evidencing the Revolving Credit Loans made or to bemade by such Lender hereunder.

        Revolving Credit Note Record. A record with respectto a Revolving Credit Note.

        Scheduled Contracts. The certain contracts referenced in Schedule 8.2(j)hereto, as the same may be amended from time to time.

        Securities Pledge Agreement. The Amended and Restated andConsolidated Master Securities Pledge Agreement, to be dated as of the Closing Date, as amended andin effect from time to time, by and between certain of the Borrowers and the Administrative Agent,pursuant to which such Borrowers pledge 100% of the Capital Stock of the Subsidiaries (or in thecase of a foreign Subsidiary, 65% of the same) to the Administrative Agent for the benefit of theLenders.

        Security Agreement. The Amended and Restated Security Agreementamong the Borrowers and the Administrative Agent, to be dated as of the Closing Date, as amendedand in effect from time to time.

        Security Documents. The Security Agreement, the Securities PledgeAgreement, and any other instruments or documents evidencing or perfecting the AdministrativeAgent’s (or collateral agent’s) lien on the assets of the Borrowers for the benefit of theLenders.

        Senior Funded Debt. At any time of determination, anamount equal to Consolidated Total Funded Debt minus the aggregate principal amount ofSubordinated Debt outstanding as of such date.

        Settlement. The making or receiving of payments, in immediatelyavailable funds, by the Lenders to or from the Administrative Agent in accordance with 2.10 hereofto the extent necessary to cause each such Lender’s actual share of the outstanding amount of theRevolving Credit Loans to be equal to such Lender’s Commitment Percentage of the outstanding amountof such Revolving Credit Loans, in any case when, prior to such action, the actual share is not soequal.

        Settlement Amount. See 2.10(b).

        Settlement Date. See 2.10(b).

        Settling Lender. See 2.10(b).

        Subordinated Debt.  The Convertible Subordinated Notes,in an aggregate principal amount not to exceed $175,000,000 issued pursuant to the 2022 NotesIndenture and any other unsecured Indebtedness of the Borrowers that is expressly subordinated andmade junior to the payment and performance in full of the Obligations, and evidenced as such by aninstrument containing subordination provisions (i) substantially similar to those contained inthe 2022 Notes Indenture or (ii) otherwise on terms acceptable to the Administrative Agent andthe Required Lenders.

        Subsidiary. Any corporation, association, trust, or other businessentity of which any Borrower shall at any time own directly, or indirectly through a Subsidiary orSubsidiaries, at least a majority of the outstanding Capital Stock or other interest entitled tovote generally.

        Swap Contracts. Any agreement (including any master agreement and anyagreement, whether or not in writing, relating to any single transaction) that is an interest rateswap agreement, basis swap, forward rate agreement, commodity swap, commodity option, equity orequity index swap or option, bond option, interest rate option, forward foreign exchange agreement,rate cap, collar or floor agreement, currency swap agreement, cross-currency rate swap agreement,swaption, currency option or other similar agreement (including any option to enter into any of theforegoing).

        Swing Line Loan(s). See 2.10(a).

        Swing Line Note. See 2.10(a).

        Syndication Agent. See preamble.

        Synthetic Lease. Any lease treated as an operatinglease under generally accepted accounting principles and as a loan or financing for U.S. income taxpurposes.

        Term Loan. To the extent applicable, the term loan made or to bemade by the Term Loan Lenders to the Borrowers pursuant to 4 (which shall be in the originalprincipal amount of $0 on the Closing Date) and any increase or new Term Loan made in accordancewith 18(g),in each case as may be increased or reduced from time to time pursuant to theprovisions hereof.

        Term Loan Amount. With respect to each Term Lender, theamount set forth on Schedule 1 hereto as the amount of such Term Lender’s commitment tomake a portion of the Term Loan to the Borrowers, which amount shall be $0 as of the ClosingDate.

        Term Loan Lenders. The Lenders holding a portion of the Term Loan as setforth on Schedule 1 hereto together with (i) any other Person who becomes an assigneeof any rights and obligations of a Term Loan Lender pursuant to 18, or (ii) any Acceding Lenderwho becomes a Term Loan Lender pursuant to 18(g).

        Term Loan Maturity Date. To the extent applicable,a date to be determined, which date will occur no earlier than the Revolving Credit MaturityDate.

        Term Loan Percentage. With respect to each Term Loan Lender, thepercentage set forth on Schedule 1 (subject to adjustment in accordance with 18hereof) as such Lender’s percentage of the Term Loan.

        Term Notes. See 4.2.

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

        Total Revolving CreditCommitment. The sum of the Commitments of the Revolving Credit Lenders, which shall equal$650,000,000 on the Closing Date, as the same may be increased or reduced from time to time inaccordance with this Credit Agreement.

        Unpaid Reimbursement Obligation. Any ReimbursementObligation for which the Borrowers do not reimburse the Administrative Agent and the Lenders on thedate specified in, and in accordance with, 3.2.

        2022 Convertible Subordinated Notes. The FloatingRate Convertible Subordinated Notes due 2022 issued by the Parent pursuant to the Indenture, datedas of April 30, 2002 between the Parent and State Street Bank & Trust Company of California,N.A., as trustee, in an aggregate principal amount not to exceed $175,000,000 plus interest asprovided for in the 2022 Notes Indenture, as such Convertible Subordinated Notes may be amended,supplemented or otherwise modified or replaced from time to time in accordance with 8.11herein.

        2022 Notes Indenture. The Indenture dated as of April 30,2002, between the Parent and State Street Bank & Trust Company of California, N.A., astrustee, with respect to the 2022 Convertible Subordinated Notes, as such Indenture may be amended,supplemented or otherwise modified or replaced from time to time in accordance with 8.11herein.

          1. A reference to any document or agreement shall include such document oragreement as amended, modified or supplemented from time to time in accordance with its terms andthe terms of this Credit Agreement.
          2. The singular includes the plural and the plural includes thesingular.
          3. A reference to any law includes any amendment or modification to suchlaw.
          4. A reference to any Person includes its permitted successors and permittedassigns.
          5. Accounting terms capitalized but not otherwise defined herein have themeanings assigned to them by generally accepted accounting principles applied on a consistent basisby the accounting entity to which they refer.
          6. The words “include,” “includes” and”including” are not limiting.
          7. All terms not specifically defined herein or by generally acceptedaccounting principles, which terms are defined in the Uniform Commercial Code as in effect in theState of New York, have the meanings assigned to them therein.
          8. Reference to a particular ” ” refers to that section of thisCredit Agreement unless otherwise indicated.
          9. The words “herein,” “hereof,” “hereunder” andwords of like import shall refer to this Credit Agreement as a whole and not to any particularsection or subdivision of this Credit Agreement.
          10. Unless otherwise expressly indicated, in the computation of periods of timefrom a specified date to a later specified date, the word “from” means “from andincluding,” the words “to” and “until” each mean “to butexcluding,” and the word “through” means “to and including.”
      1. Commitment to Lend.
      2. Subject to the terms and conditions set forth in this Credit Agreement, each of the Revolving Credit Lenders severally, but not jointly, agrees to lend tothe Borrowers, and the Borrowers may borrow, repay, and reborrow from time to time from the ClosingDate to the Revolving Credit Maturity Date, upon notice by the Borrowers to the AdministrativeAgent given in accordance with 2.5, such sums as are requested by the Borrowers up to a maximumaggregate amount outstanding (after giving effect to all amounts requested) at any one time equalto such Revolving Credit Lender’s Commitment minus such Revolving Credit Lender’s CommitmentPercentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations,provided that the sum of the outstanding amount of the Revolving Credit Loans plusthe outstanding amount of the Swing Line Loans plus the Maximum Drawing Amount and allUnpaid Reimbursement Obligations shall not at any time exceed the Total Revolving Credit Commitmentat such time. The Revolving Credit Loans shall be made pro rata in accordance with eachRevolving Credit Lender’s Commitment Percentage. Each request for a Loan hereunder shallconstitute a representation and warranty by the Borrowers that the conditions set forth in 10 and 11, as the case may be, have been satisfied on the date of such request.

          1. The Borrowers shall have the right at any time and from time to time uponfive (5) Business Days’ prior written notice to the Administrative Agent to reduce by $5,000,000 orintegral multiples of $1,000,000 in excess thereof, or terminate entirely, the Total RevolvingCredit Commitment, whereupon the Commitments of the Revolving Credit Lenders shall be reducedpro rata in accordance with their respective Commitment Percentages of the amount specifiedin such notice or, as the case may be, terminated. The Administrative Agent will notify theRevolving Credit Lenders promptly after receiving any notice of the Borrowers delivered pursuant tothis 2.2.
          2. No reduction or termination of the Commitments once made may be revoked; theportion of the Commitments reduced or terminated may not be reinstated; and amounts in respect ofsuch reduced or terminated portion may not be reborrowed.

          1. Loan Accounts.  Each Revolving Credit Lender shallmaintain in accordance with its usual practice an account or accounts evidencing Indebtedness ofthe Borrowers to such Lender resulting from each Revolving Credit Loan of such Lender from time totime, including the amounts of principal and interest payable and paid to such Lender from time totime under this Credit Agreement. The Administrative Agent shall maintain accounts in which itshall record (i) the amount of each Revolving Credit Loan made hereunder and each Interest Periodapplicable thereto, (ii) the amount of any principal or interest due and payable or to become dueand payable from the Borrowers to each Revolving Credit Lender hereunder and (iii) both the amountof any sum received by the Administrative Agent hereunder for the account of the Revolving CreditLenders and each Revolving Credit Lender’s share thereof (if any). The entries made in theaccounts maintained by each Revolving Credit Lender pursuant to this 2.3(a) (or any RevolvingCredit Note Record referred to below) shall, to the extent permitted by applicable law, be primafacie evidence of the existence and amounts of the obligations of the Borrowers thereinrecorded; provided, however, that the failure of any Revolving Credit Lender or theAdministrative Agent to maintain any such accounts or Revolving Credit Note Record, or any errortherein, shall not in any manner affect the obligation of the Borrowers to repay (with applicableinterest) the Revolving Credit Loans made in accordance with the terms of this CreditAgreement.
          2. Revolving Credit Notes. Upon the request of any RevolvingCredit Lender, the Borrowers shall execute and deliver to such Revolving Credit Lender a promissorynote (each, a “Revolving Credit Note“), which shall (i) be payable to the order ofsuch Revolving Credit Lender and be dated the Closing Date (or, in the case of Revolving CreditNotes issued after the Closing Date, be dated the date of the issuance thereof), (ii) be in astated principal amount equal to the Commitment of such Revolving Credit Lender or, if less, theoutstanding amount of all Revolving Credit Loans made by such Lender, plus interest thereon, as setforth in 2.4 herein, (iii) mature on the Revolving Credit Loan Maturity Date, and (iv) be entitledto the benefits of this Credit Agreement and the other Loan Documents. The Borrowers irrevocablyauthorize each Revolving Credit Lender with a Revolving Credit Note to make or cause to be made, ator about the time of the Drawdown Date of any Revolving Credit Loan or at the time of receipt ofany payment of principal on such Lender’s Revolving Credit Note, an appropriate notation on suchLender’s Revolving Credit Note Record reflecting the making of such Revolving Credit Loan or (asthe case may be) the receipt of such payment. Each Revolving Credit Lender holding a RevolvingCredit Note will, prior to any transfer of such Revolving Credit Note, endorse on the reverse sidethereof the outstanding principal amount of Revolving Credit Loans evidenced thereby. Failure tomake such notation or any error in any such notation or endorsement shall not affect the Borrowers’obligations in respect of such Revolving Credit Loans.

          1. Not later than 1:00 p.m. (Boston time) on the proposed Drawdown Date of anyRevolving Credit Loan, each of the Revolving Credit Lenders will make available to theAdministrative Agent, at the Administrative Agent’s Office, in immediately available funds, theamount of such Lender’s Commitment Percentage of the amount of the requested Revolving CreditLoans. Upon receipt from each Revolving Credit Lender of such amount, and upon receipt of thedocuments required by 10 and 11 and the satisfaction of the other conditions set forth therein,to the extent applicable, the Administrative Agent will make available to the Borrowers inimmediately available funds the aggregate amount of such Revolving Credit Loans made available tothe Administrative Agent by the Revolving Credit Lenders. The failure or refusal of any RevolvingCredit Lender to make available to the Administrative Agent at the aforesaid time and place on anyDrawdown Date the amount of its Commitment Percentage of the requested Revolving Credit Loans shallnot relieve any other Revolving Credit Lender from its several obligation hereunder to makeavailable to the Administrative Agent the amount of such other Revolving Credit Lender’s CommitmentPercentage of any requested Revolving Credit Loans.
          2. The Administrative Agent may, unless notified to the contrary by anyRevolving Credit Lender prior to a Drawdown Date, assume that such Lender has made available to theAdministrative Agent on such Drawdown Date the amount of such Lender’s Commitment Percentage of theRevolving Credit Loans to be made on such Drawdown Date, and the Administrative Agent may (butshall not be required to), in reliance upon such assumption, make available to the Borrowers acorresponding amount. If any Revolving Credit Lender makes available to the Administrative Agentsuch amount on a date after such Drawdown Date, such Lender shall pay to the Administrative Agenton demand an amount equal to the product of (i) the average computed for the period referred to inclause (iii) below, of the weighted average interest rate paid by the Administrative Agent forfederal funds acquired by the Administrative Agent during each day included in such period,times (ii) the amount of such Lender’s Commitment Percentage of such Revolving Credit Loans,times (iii) a fraction, the numerator of which is the number of days that elapse from andincluding such Drawdown Date to the date on which the amount of such Lender’s Commitment Percentageof such Revolving Credit Loans shall become immediately available to the Administrative Agent, andthe denominator of which is 365. A statement of the Administrative Agent submitted to suchRevolving Credit Lender with respect to any amounts owing under this paragraph shall beprima facie evidence, absent manifest error, of the amount due and owing to theAdministrative Agent by such Lender. If the amount of such Revolving Credit Lender’s CommitmentPercentage of such Revolving Credit Loans is not made available to the Administrative Agent by suchLender within three (3) Business Days following such Drawdown Date, the Administrative Agent shallbe entitled to recover such amount from the Borrowers on demand, with interest thereon at the rateper annum applicable to the Revolving Credit Loans made on such Drawdown Date.

          1. If at any time the outstanding amount of the Revolving Credit Loansplus Swing Line Loans plus the Maximum Drawing Amount plus UnpaidReimbursement Obligations exceeds the Total Revolving Credit Commitment, whether by reduction ofthe Total Revolving Credit Commitment or otherwise, then the Borrowers shall immediately pay theamount of such excess to the Administrative Agent for application to the Revolving Credit Loans, orif no Revolving Credit Loans shall be outstanding, to the Swing Line Loans, or if no Swing LineLoans shall be outstanding, to be held by the Administrative Agent as collateral security for theReimbursement Obligations, provided, however, that if the amount of cash collateralheld by the Administrative Agent pursuant to this 2.8 exceeds the amount of the Obligations, theAdministrative Agent shall return such excess to the Borrowers.
          2. To the extent that no Term Loan is outstanding, each prepayment required by 4.4.2 shall be used to repay the Revolving Credit Loans (but not to reduce the Total RevolvingCredit Commitment) on a pro rata basis in accordance with each Revolving Credit Lender’sCommitment Percentage.

          1. So long as Bank of America has not received written notice of a Default oran Event of Default made in accordance with the provisions of this Credit Agreement, solely forease of administration of the Revolving Credit Loans, Bank of America may, upon receipt of a Loanand Letter of Credit Request no later than 2:00 p.m. (Boston time) on the proposed date of funding,but shall not be required to, fund Base Rate Loans (“Swing Line Loans”) for periods notto exceed seven (7) days in any one case, bearing interest as set forth for Base Rate Loans in 2.4. The Swing Line Loans shall be evidenced by a promissory note of the Borrowers (the”Swing Line Note“) dated as of the Closing Date, and shall each bein a minimum amount of $500,000 or integral multiples of $100,000 in excess thereof,provided that the outstanding amount of Swing Line Loans advanced by Bank of Americahereunder shall not exceed $25,000,000 at any time. Each Revolving Credit Lender shall remainseverally, but not jointly, and unconditionally liable to fund its pro rata share (basedupon each Revolving Credit Lender’s Commitment Percentage) of such Swing Line Loans on eachSettlement Date and, in the event Bank of America chooses not to fund all Base Rate Loans requestedon any date, to fund its Commitment Percentage of the Base Rate Loans requested, subject tosatisfaction of the provisions hereof relating to the making of Base Rate Loans. Prior to eachSettlement, all payments or repayments of the principal of, and interest on, Swing Line Loans shallbe credited to the account of Bank of America.
          2. The Revolving Credit Lenders shall effect Settlements on (i) the BusinessDay immediately following any day which the Administrative Agent gives written notice to theRevolving Credit Lenders to effect a Settlement, (ii) the Business Day immediately following theAdministrative Agent’s becoming aware of the existence of any Default or Event of Default, (iii)the Revolving Credit Maturity Date, (iv) any date on which the Borrowers wish to convert a SwingLine Loan into a Base Rate Loan, and (v) in any event, the seventh day on which any Swing Line Loanremains outstanding (each such date, a “Settlement Date”). One (1) Business Day prior toeach such Settlement Date, the Administrative Agent shall give telephonic notice to the RevolvingCredit Lenders of (A) the respective outstanding amount of Revolving Credit Loans made by eachRevolving Credit Lender as at the close of business on the prior day, (B) the amount that anyRevolving Credit Lender, as applicable (a “Settling Lender”), shall pay to effect aSettlement (a “Settlement Amount”). A statement of the Administrative Agent submitted tothe Revolving Credit Lenders with respect to any amounts owing hereunder shall be primafacie evidence of the amount due and owing. Each Settling Lender shall, not later than1:00 p.m. (Boston time) on each Settlement Date, effect a wire transfer of immediatelyavailable funds to the Administrative Agent at the Administrative Agent’s Head Office in the amountof such Revolving Credit Lender’s Settlement Amount. All funds advanced by any Revolving CreditLender as a Settling Lender pursuant to this 2.10 shall for all purposes be treated as a Base RateLoan to the Borrowers.
          3. The Administrative Agent may (unless notified to the contrary by anySettling Lender by 12:00 noon (Boston time) one (1) Business Day prior to the Settlement Date)assume that each Settling Lender has made available (or will make available by the time specifiedin 2.7(b)) to the Administrative Agent its Settlement Amount, and the Administrative Agent may(but shall not be required to), in reliance upon such assumption, effect Settlements. If theSettlement Amount of such Settling Lender is made available to the Administrative Agent on a dateafter such Settlement Date, such Settling Lender shall pay the Administrative Agent on demand anamount equal to the product of (i) the average, computed for the period referred to in clause(iii) below, of the weighted average annual interest rate paid by the Administrative Agent forfederal funds acquired by the Administrative Agent during each day included in such periodtimes (ii) such Settlement Amount times (iii) a fraction, the numerator of whichis the number of days that elapse from and including such Settlement Date to but not including thedate on which such Settlement Amount shall become immediately available to the AdministrativeAgent, and the denominator of which is 365. Upon payment of such amount such Settling Lender shallbe deemed to have delivered its Settlement Amount on the Settlement Date and shall become entitledto interest payable by the Borrowers with respect to such Settling Lender’s Settlement Amount as ifsuch share were delivered on the Settlement Date. If such Settlement Amount is not in fact madeavailable to the Administrative Agent by such Settling Lender within five (5) Business Days of suchSettlement Date, the Administrative Agent shall be entitled to recover such amount from theBorrowers, with interest thereon at the Base Rate.
          4. After any Settlement Date, any payment by the Borrowers of Swing Line Loanshereunder shall be allocated pro rata among the Revolving Credit Lenders, in accordance withsuch Lender’s Commitment Percentage.
          5. If, prior to the making of a Revolving Credit Loan pursuant to paragraph (b)of this 2.10, a Default or Event of Default has occurred and is continuing, each Revolving CreditLender will, on the date such Revolving Credit Loan was to have been made, purchase an undividedparticipating interest in the outstanding Swing Line Loans in an amount equal to its CommitmentPercentage of such Swing Line Loans. Each Revolving Credit Lender will immediately transfer to theAdministrative Agent, in immediately available funds, the amount of its participation and uponreceipt thereof the Administrative Agent will deliver to such Revolving Credit Lender a Swing Lineparticipation certificate dated the date of receipt of such funds and in such amount.
          6. Whenever, at any time after the Administrative Agent has received from anyRevolving Credit Lender such Revolving Credit Lender’s participating interest in the Swing LineLoans pursuant to clause (e) above, the Administrative Agent receives any payment on accountthereof, the Administrative Agent will distribute to such Revolving Credit Lender its participatinginterest in such amount (appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Revolving Credit Lender’s participating interest was outstandingand funded) in like funds as received; provided, however, that in the event that suchpayment received by the Administrative Agent is required to be returned, such Revolving CreditLender will return to the Administrative Agent any portion thereof previously distributed by theAdministrative Agent to it in like funds as such payment is required to be returned by theAdministrative Agent.
          7. Each Revolving Credit Lender’s obligation to purchase participatinginterests pursuant to clause (e) above shall be absolute and unconditional and shall not beaffected by any circumstance, including, without limitation, (i) any set-off, counterclaim,recoupment, defense or other right which such Revolving Credit Lender may have against theAdministrative Agent, the Borrowers or any other Person for any reason whatsoever; (ii) theoccurrence or continuance of a Default or Event of Default; (iii) any adverse change in thecondition (financial or otherwise) of the Borrowers or any other Person; (iv) any breach of thisCredit Agreement by the Borrowers or any other Revolving Credit Lender or Administrative Agent; or(v) any other circumstance, happening or event whatsoever, whether or not similar to any of theforegoing.
      1. Letter of Credit Commitments.
          1. Subject to the terms and conditions hereof and the execution and delivery bythe Borrowers of a letter of credit application on the Issuing Lender’s customary form (a”Letter of Credit Application“), the Issuing Lender on behalf of the RevolvingCredit Lenders and in reliance upon the agreement of the Revolving Credit Lenders set forth in 3.1.4 and upon the representations and warranties of the Borrowers contained herein, agrees, inits individual capacity, to issue and extend for the account of the Borrowers one or more standbyletters of credit (each, a “Letter of Credit“) including, in thecase of L/C Supported IRBs, so called direct pay letters of credit (each, an “IRBLetter of Credit“), in such form as may be requested from time to time bythe Borrowers and agreed to by the Issuing Lender; provided, however, that, aftergiving effect to such request, the Maximum Drawing Amount shall not exceed the Total RevolvingCredit Commitment minus the aggregate outstanding amount of the Revolving Credit Loans, theSwing Line Loans and the Unpaid Reimbursement Obligations. Notwithstanding any other provisions ofthis Credit Agreement, the Issuing Lender shall not issue or extend a Letter of Credit after it hasreceived notice from any Lender or the Administrative Agent that a Default or Event of Default hasoccurred and stating that no Letters of Credit are to be issued or extended until such Default orEvent of Default has been cured or waived in accordance with the provisions of this CreditAgreement.
          2. The Issuing Lender shall not be under any obligation to issue any Letter ofCredit if:
            1. any order, judgment or decree of any Governmental Authority or arbitratorshall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter ofCredit, or any Law applicable to the Issuing Lender or any request or directive (whether or nothaving the force of law) from any Governmental Authority with jurisdiction over the Issuing Lendershall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of creditgenerally or such Letter of Credit in particular or shall impose upon the Issuing Lender withrespect to such Letter of Credit any restriction, reserve or capital requirement (for which theIssuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable onthe date hereof and which the Issuing Lender in good faith deems material to it;
            2. the issuance of such Letter of Credit would violate one or more policies ofthe Issuing Lender;
            3. except as otherwise agreed by the Administrative Agent and the IssuingLender, such Letter of Credit is in an initial stated amount less than $100,000;
            4. such Letter of Credit is to be denominated in a currency other thanDollars;
            5. such Letter of Credit contains any provisions for automatic reinstatement ofthe stated amount after any drawing thereunder; or
            6. a default of any Revolving Credit Lender’s obligations to fund under 3.3exists or any Revolving Credit Lender is at such time a Delinquent Lender hereunder, unless theIssuing Lender has entered into satisfactory arrangements with the Borrowers or such RevolvingCredit Lender to eliminate the Issuing Lender’s risk with respect to such Revolving CreditLender.

          1. Each Letter of Credit Application shall be completed to the satisfaction ofthe Issuing Lender. In the event that any provision of any Letter of Credit Application shall beinconsistent with any provision of this Credit Agreement, then the provisions of this CreditAgreement shall, to the extent of any such inconsistency, govern. Such Letter of CreditApplication must be received by the Issuing Lender and the Administrative Agent not later than11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent andthe Issuing Lender may agree in a particular instance in their sole discretion) prior to theproposed issuance date or date of amendment, as the case may be. In the case of a request for aninitial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form anddetail satisfactory to the Issuing Lender: (i) the proposed issuance date of the requested Letterof Credit (which shall be a Business Day); (ii) the amount thereof; (iii) the expiry date thereof;(iv) the name and address of the beneficiary thereof; (v) the documents to be presented by suchbeneficiary in case of any drawing thereunder; (vi) the full text of any certificate to bepresented by such beneficiary in case of any drawing thereunder; and (vii) such other matters asthe Issuing Lender may reasonably require. In the case of a request for an amendment of anyoutstanding Letter of Credit, such Letter of Credit Application shall specify in form and detailsatisfactory to the Issuing Lender (w) the Letter of Credit to be amended; (x) the proposed date ofamendment thereof (which shall be a Business Day); (y) the nature of the proposed amendment; and(z) such other matters as the Issuing Lender may reasonably require. Additionally, the Borrowersshall furnish to the Issuing Lender and the Administrative Agent such other documents andinformation pertaining to such requested Letter of Credit issuance or amendment, including anyIssuer Documents, as the Issuing Lender or the Administrative Agent may reasonably require.
          2. Promptly after receipt of any Letter of Credit Application, the IssuingLender will confirm with the Administrative Agent (by telephone or in writing) that theAdministrative Agent has received a copy of such Letter of Credit Application from the applicableBorrower(s) and, if not, the Issuing Lender will provide the Administrative Agent with a copythereof. Unless the Issuing Lender has received written notice from any Revolving Credit Lender,the Administrative Agent or any Borrower, at least one Business Day prior to the requested date ofissuance or amendment of the applicable Letter of Credit, that one or more applicable conditionscontained in 10 and 11 shall not then be satisfied, then, subject to the terms and conditionshereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the accountof the applicable Borrower(s) or enter into the applicable amendment, as the case may be, in eachcase in accordance with the Issuing Lender’s usual and customary business practices.

          1. except as otherwise expressly provided in 3.2(b) and (c), on each date thatany draft presented under any Letter of Credit is honored by the Issuing Lender, or the IssuingLender otherwise makes a payment with respect thereto, (i) the amount paid by the Issuing Lenderunder or with respect to such Letter of Credit, and (ii) the amount of any taxes, fees, charges orother costs and expenses whatsoever incurred by the Issuing Lender or any Revolving Credit Lenderin connection with any payment made by the Issuing Lender or any Revolving Credit Lender under, orwith respect to, such Letter of Credit; provided however, if the Borrowers do notreimburse the Administrative Agent on the Drawdown Date, such amount shall, provided that no Eventof Default under 13.1(h) or 13.1(i) has occurred, become automatically a Revolving Credit Loanwhich is a Base Rate Loan advanced hereunder in an amount equal to such sum; and
          2. upon the reduction (but not termination) of the Total Revolving CreditCommitment to an amount less than the Maximum Drawing Amount, an amount equal to such difference,which amount shall be held by the Administrative Agent for the benefit of the Revolving CreditLenders and the Issuing Lender as cash collateral for all Reimbursement Obligations; and
          3. upon the Revolving Credit Maturity Date, or upon the termination of theTotal Revolving Credit Commitment, or the acceleration of the Reimbursement Obligations withrespect to all Letters of Credit in accordance with 13, an amount equal to the Maximum DrawingAmount of all Letters of Credit, which amount shall be held by the Administrative Agent for thebenefit of the Issuing Lender as cash collateral for all Reimbursement Obligations.

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

          1. any lack of validity or enforceability of such Letter of Credit, this CreditAgreement, or any other Loan Document;
          2. the existence of any claim, counterclaim, setoff, defense or other rightthat the Borrowers may have at any time against any beneficiary or any transferee of such Letter ofCredit (or any Person for whom any such beneficiary or any such transferee may be acting), theIssuing Lender or any other Person, whether in connection with this Credit Agreement, thetransactions contemplated hereby or by such Letter of Credit or any agreement or instrumentrelating thereto, or any unrelated transaction;
          3. any draft, demand, certificate or other document presented under such Letterof Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statementtherein being untrue or inaccurate in any respect; or any loss or delay in the transmission orotherwise of any document required in order to make a drawing under such Letter of Credit;
          4. any payment by the Issuing Lender under such Letter of Credit againstpresentation of a draft or certificate that does not strictly comply with the terms of such Letterof Credit; or any payment made by the Issuing Lender under such Letter of Credit to any Personpurporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit ofcreditors, liquidator, receiver or other representative of or successor to any beneficiary or anytransferee of such Letter of Credit, including any arising in connection with any proceeding underany Debtor Relief Law; or
          5. any other circumstance or happening whatsoever, whether or not similar toany of the foregoing, including any other circumstance that might otherwise constitute a defenseavailable to, or a discharge of, the Borrowers.

        The Borrowers shall promptly examine a copy of each Letter of Credit and eachamendment thereto that is delivered to the Borrowers and, in the event of any claim ofnoncompliance with the Borrowers instructions or other irregularity, the Borrowers will immediatelynotify the Issuing Lender. The Borrowers shall be conclusively deemed to have waived any suchclaim against the Issuing Lender and its correspondents unless such notice is given asaforesaid.

      1. Commitment to Lend. The principal amountof the Term Loan on the Closing Date shall be $0. To the extent that after the Closing Date, aTerm Loan is advanced pursuant to the terms of this Credit Agreement, each Term Loan Lender shalllend to the Borrowers the amount of its Term Loan Percentage of the amount of the Term Loan and theterms of this Section 4 shall apply to any such Term Loan(s).
          1. Loan Accounts.  Each Term Loan Lender shall maintain inaccordance with its usual practice an account or accounts evidencing indebtedness of the Borrowersto such Lender resulting from such Lender’s Term Loan Percentage of the Term Loan of such Lenderfrom time to time, including the amounts of principal and interest payable and paid to such Lenderfrom time to time under this Credit Agreement. The Administrative Agent shall maintain accounts inwhich it shall record (i) the amount of the Term Loan made hereunder and each Interest Periodapplicable thereto, (ii) the amount of any principal or interest due and payable or to become dueand payable from the Borrowers to each Term Loan Lender hereunder and (iii) both the amount of anysum received by the Administrative Agent hereunder for the account of the Term Loan Lenders andeach Term Loan Lender’s share thereof (if any). The entries made in the accounts maintained byeach Term Loan Lender pursuant to this 4.2(a) (or any Term Note Record referred to below) shall,to the extent permitted by applicable law, be prima facie evidence of the existence andamounts of the obligations of the Borrowers therein recorded; provided, however, thatthe failure of any Term Loan Lender or the Administrative Agent to maintain any such accounts orTerm Note Record, or any error therein, shall not in any manner affect the obligation of theBorrowers to repay (with applicable interest) the Term Loan made in accordance with the terms ofthis Credit Agreement.
          2. Term Notes. Upon the request of any Term Loan Lender, theBorrowers shall execute and deliver to such Term Loan Lender a promissory note (each, a”Term Note“), which shall (i) be payable to the order of such Term Loan Lender andbe dated the date of the issuance thereof, (ii) be in a stated principal amount equal to the TermLoan made by such Term Loan Lender, (iii) represent the obligation of the Borrowers to pay to suchTerm Loan Lender such principal amount or, if less, the outstanding amount of the Term Loan of suchTerm Loan Lender, plus interest accrued thereon as set forth in 4.6 or 4.7 herein, (iv) mature onthe Term Loan Maturity Date and (v) be entitled to the benefits of this Credit Agreement and theother Loan Documents. The Borrowers irrevocably authorize each Term Loan Lender with a Term Noteto make or cause to be made a notation on such Term Loan Lender’s Term Note Record reflecting theoriginal principal amount of such Term Loan Lender’s Term Loan Percentage of the Term Loan and, ator about the time of the receipt of any payment of principal on such Lender’s Term Note, anappropriate notation on such Lender’s Term Note Record reflecting the receipt of such payment.Each Term Loan Lender holding a Term Note will, prior to any transfer of such Term Note, endorse onthe reverse side thereof the outstanding principal amount of Term Loan evidenced thereby. Failureto make such notation or any error in any such notation or endorsement shall not affect theBorrowers’ obligations in respect of such Term Loan.

        1. In the event that Net Cash Proceeds received by the Borrowers from asset salesexceed $50,000,000 per annum (other than in connection with Permitted Receivables Transactions andthe sale, lease, license or other disposition of assets in the ordinary course of business and withrespect to asset swaps permitted under 8.4), the Borrowers will use one-hundred percent (100%) ofany such Net Cash Proceeds in excess of $50,000,000 to pay down the Loans in the manner set forthin 4.4.2.

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

    2. FEES, PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERALLIABILITY.
      1. Fees. The Borrowers jointly and severallyagree to pay all Fees in the amounts and at the times and otherwise in accordance with the termsspecified herein or the Loan Documents, as the case may be, including:
          1. Commitment Fee. The Borrowers jointly and severally agree topay to the Administrative Agent, for the respective account of each Revolving Credit Lender, a fee(the “Commitment Fee”) calculated at the rate per annum equal to the ApplicableCommitment Rate with respect to the Commitment Fee as in effect from time to time on the actualdaily amount during each calendar quarter or portion thereof from the Closing Date to the RevolvingCredit Maturity Date by which the Total Revolving Credit Commitment minus the sum of theMaximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the outstanding amount ofRevolving Credit Loans (excluding Swing Line Loans) during such calendar quarter. The CommitmentFee shall be payable quarterly in arrears on the first day of each calendar quarter for theimmediately preceding calendar quarter commencing on the first such date following the date hereof,with a final payment on the Revolving Credit Maturity Date or any earlier date on which theCommitments shall terminate.
          2. Letter of Credit Fees. The Borrowers shallpay a fee (the “Letter of Credit Fee“) equal to (i) the Applicable L/C Marginmultiplied by the Maximum Drawing Amount of each Financial Letter of Credit or (ii)50% of the Applicable L/C Margin multiplied by the Maximum Drawing Amount of eachPerformance Letter of Credit. Such Letter of Credit Fee shall be payable to the AdministrativeAgent for the account of the Revolving Credit Lenders, to be shared pro rata by theRevolving Credit Lenders in accordance with their respective Commitment Percentages. The Borrowersshall also pay a fee (the “Issuance Fee“) to the Administrative Agent, for its ownaccount, equal to 0.125% per annum on the Maximum Drawing Amount of all Letters of Credit issued bysuch Lender, plus its customary administrative charges. The Letter of Credit Fee and the IssuanceFee shall be payable for the number of days each Letter of Credit is outstanding, and shall bepayable quarterly in arrears on the first day of each calendar quarter for the immediatelypreceding calendar quarter, and on the Revolving Credit Maturity Date.

          1. All payments of principal, interest, Reimbursement Obligations, fees and anyother amounts due hereunder or under any of the other Loan Documents shall be made to theAdministrative Agent, for the respective accounts of the Lenders and the Administrative Agent, tobe received at the Administrative Agent’s Head Office in immediately available funds by 12:00 noon(Boston time) on any due date.
          2. All payments by the Borrowers hereunder and under any of the other LoanDocuments shall be made without setoff or counterclaim and free and clear of and without deductionfor any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans,restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction orany political subdivision thereof or taxing or other authority therein unless the Borrowers arecompelled by law to make such deduction or withholding. If any such obligation is imposed upon theBorrowers with respect to any amount payable by them hereunder or under any of the other LoanDocuments, the Borrowers will pay to the Administrative Agent, for the account of the Lenders or(as the case may be) the Administrative Agent, on the date on which such amount is due and payablehereunder or under such other Loan Document, such additional amount in Dollars as shall benecessary to enable the Lenders or the Administrative Agent to receive the same net amount whichthe Lenders or the Administrative Agent would have received on such due date had no such obligationbeen imposed upon the Borrowers. In the event that the Borrowers are required to make suchdeduction or withholding as a result of the fact that a Lender is organized outside of the UnitedStates, such Lender shall use its reasonable best efforts to transfer its Loans to an affiliateorganized within the United States if such transfer would have no adverse effect on such Lender orthe Loans. The Borrowers will deliver promptly to the Lender certificates or other valid vouchersfor all taxes or other charges deducted from or paid with respect to payments made by the Borrowershereunder or under such other Loan Document.
          3. Whenever a payment hereunder or under any of the other Loan Documentsbecomes due on a day that is not a Business Day, the due date for such payment shall be extended tothe next succeeding Business Day, and interest shall accrue during such extension; provided thatany Interest Period for any Eurodollar Loan which ends on a day that is not a EurodollarBusiness Day shall end on the next succeeding Eurodollar Business Day unless the result of suchextension would be to carry such Interest Period into another calendar month, in which event suchInterest Period shall end on the immediately preceding Eurodollar Business Day.
          4. Each Lender and the Administrative Agent that is not a U.S. Person asdefined in Section 7701(a)(30) of the Code for federal income tax purposes (a “Non-U.S.Lender“) hereby agrees that, if and to the extent it is legally able to do so, itshall, prior to the date of the first payment by the Borrowers hereunder to be made to such Lenderor the Administrative Agent or for such Lender’s or the Administrative Agent’s account, deliver tothe Borrowers and the Administrative Agent, as applicable, such certificates, documents or otherevidence, as and when required by the Code or Treasury Regulations issued pursuant thereto,including (a) in the case of a Non-U.S. Lender that is a “bank” for purposes of Section881(c)(3)(A) of the Code, two (2) duly completed copies of Internal Revenue Service Form W-8BEN orForm W-8ECI and any other certificate or statement of exemption required by Treasury Regulations,or any subsequent versions thereof or successors thereto, properly completed and duly executed bysuch Lender or the Administrative Agent establishing that with respect to payments of principal,interest or fees hereunder it is (i) not subject to United States federal withholding tax under theCode because such payment is effectively connected with the conduct by such Lender orAdministrative Agent of a trade or business in the United States or (ii) totally exempt orpartially exempt from United States federal withholding tax under a provision of an applicable taxtreaty and (b) in the case of a Non-U.S. Lender that is not a “bank” for purposes ofSection 881(c)(3)(A) of the Code, a certificate in form and substance reasonably satisfactoryto the Administrative Agent and the Borrowers and to the effect that (i) such Non-U.S. Lenderis not a “bank” for purposes of Section 881(c)(3)(A) of the Code, is not subject toregulatory or other legal requirements as a bank in any jurisdiction, and has not been treated as abank for purposes of any tax, securities law or other filing or submission made to any governmentalauthority, any application made to a rating agency or qualification for any exemption from any tax,securities law or other legal requirements, (ii) is not a ten (10) percent shareholder forpurposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled foreign corporationreceiving interest from a related person for purposes of Section 881(c)(3)(C) of the Code, togetherwith a properly completed Internal Revenue Service Form W-8 or W-9, as applicable (or successorforms). Each Lender or the Administrative Agent agrees that it shall, promptly upon a change ofits lending office or the selection of any additional lending office, to the extent the formspreviously delivered by it pursuant to this section are no longer effective, and promptly upon theBorrowers’ or the Administrative Agent’s reasonable request after the occurrence of any other event(including the passage of time) requiring the delivery of a Form W-8BEN, Form W-8ECI, Form W-8 orW-9 in addition to or in replacement of the forms previously delivered, deliver to the Borrowersand the Administrative Agent, as applicable, if and to the extent it is properly entitled to do so,a properly completed and executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or anysuccessor forms thereto).

      2. Overdue principal and (to the extent permitted by applicable law) interest onthe Loans and all other overdue amounts payable hereunder or under any of the other Loan Documentsshall bear interest compounded monthly and payable on demand at a rate per annum equal to the BaseRate plus the Applicable Base Rate Margin plus two (2) percentage points (2.00%)until such amount shall be paid in full (after, as well as before, judgment).

          1. At the Borrowers’ option, so long as no Default or Event of Default hasoccurred and is then continuing, the Borrowers may (i) elect to convert any Loan which is aBase Rate Loan or a portion thereof to a Eurodollar Loan, (ii) at the time of any Loan andLetter of Credit Request, specify that a requested Loan shall be a Eurodollar Loan, or(iii) upon expiration of the applicable Interest Period, elect to maintain an existingEurodollar Loan as such, provided that the Borrowers give notice to the Administrative Agentpursuant to 5.8(b) hereof. Upon determining any Eurodollar Rate, the Administrative Agent shallforthwith provide notice thereof to the Borrowers and the Lenders, and each such notice to theBorrowers and the Lenders shall be considered prima facie correct and binding, absentmanifest error.
          2. Three (3) Eurodollar Business Days prior to the making of any EurodollarLoan or the conversion of any Base Rate Loan to a Eurodollar Loan, or, in the case of anoutstanding Eurodollar Loan, the expiration date of the applicable Interest Period, the Borrowersshall give telephonic notice (confirmed by telecopy on the same Eurodollar Business Day) to theAdministrative Agent not later than 11:00 a.m. (Boston time) of their election pursuant to 5.8(a). Each such notice delivered to the Administrative Agent shall specify the aggregateprincipal amount of the Loans to be borrowed or maintained as or converted to Eurodollar Loans andthe requested duration of the Interest Period that will be applicable to such Eurodollar Loan, andshall be irrevocable and binding upon the Borrowers. If the Borrowers shall fail to give theAdministrative Agent notice of their election hereunder together with all of the other informationrequired by this 5.8(b) with respect to any Loan, such Loan shall be deemed a Base Rate Loan. Inthe event that the Borrowers fail to provide any such notice with respect to the continuation ofany Eurodollar Loan as such, then such Eurodollar Loan shall be automatically converted to a BaseRate Loan at the end of the then expiring Interest Period relating thereto.
          3. Notwithstanding anything herein to the contrary, the Borrowers may notspecify an Interest Period that would extend beyond the Revolving Credit Maturity Date or the TermLoan Maturity Date, as applicable. No Interest Period relating to the Term Loan or any portionthereof bearing interest at the Eurodollar Rate shall extend beyond the date on which any regularlyscheduled installment payment of the principal of the Term Loan is to be made unless a portion ofthe Term Loan at least equal to such installment payment has an Interest Period ending on suchdate or is then bearing interest at the Base Rate.
          4. All Revolving Credit Loans and Term Loans shall be in a minimum amount of$1,000,000 or integral multiples of $500,000 in excess thereof. In no event shall the Borrowershave more than ten (10) different maturities of Eurodollar Loans outstanding at anytime.

            1. to increase the cost to such Lender of making, funding, issuing, renewing,extending or maintaining the Loans, such Lender’s Commitment, or the Letters of Credit; or
            2. to reduce the amount of principal, interest or other amount payable to suchLender hereunder on account of such Lender’s Commitment, the Loans, or drawings under the Lettersof Credit, or
            3. to require such Lender to make any payment or to forego any interest orother sum payable hereunder, the amount of which payment or foregone interest or other sum iscalculated by reference to the gross amount of any sum receivable or deemed received by such Lenderfrom the Borrowers hereunder,

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

          1. Each Borrower accepts joint and several liability for the Obligations of allof the Borrowers hereunder and under the other Loan Documents in consideration of the financialaccommodations to be provided by the Administrative Agent and the Lenders under this CreditAgreement, for the mutual benefit, directly and indirectly, of each Borrower and in considerationof the undertakings of each other Borrower to accept joint and several liability for theObligations.
          2. Each Borrower, jointly and severally, hereby irrevocably and unconditionallyaccepts, not merely as a surety but also as a co-debtor, joint and several liability with the otherBorrowers with respect to the payment and performance of all of the Obligations (including, withoutlimitation, any Obligations arising under this 5.13), it being the intention of the parties heretothat all of the Obligations shall be the joint and several Obligations of each Borrower withoutpreferences or distinction among them.
          3. If and to the extent that any of the Borrowers shall fail to make anypayment with respect to any of the Obligations as and when due or to perform any of the Obligationsin accordance with the terms thereof, then in each such event the other Borrowers will make suchpayment with respect to, or perform, such Obligation.
          4. The Obligations of each Borrower under the provisions of this 5.13constitute full recourse Obligations of each Borrower enforceable against each such Borrower to thefull extent of its properties and assets, irrespective of the validity, regularity orenforceability of this Credit Agreement or any other circumstance whatsoever.
          5. Except as otherwise expressly provided in this Credit Agreement, eachBorrower, to the fullest extent permitted by applicable law, hereby waives notice of acceptance ofits joint and several liability, notice of any Loans made under this Credit Agreement, notice ofany action at any time taken or omitted by the Administrative Agent or the Lenders under or inrespect of any of the Obligations, and, generally, to the extent permitted by applicable law, alldemands, notices and other formalities of every kind in connection with this Credit Agreement.Each Borrower, to the fullest extent permitted by applicable law, hereby waives all defenses whichmay be available by virtue of any valuation, stay, moratorium law or other similar law now orhereafter in effect, any right to require the marshaling of assets of the Borrowers and any otherPerson primarily or secondarily liable with respect to any of the Obligations and all suretyshipdefenses generally. Each Borrower, to the fullest extent permitted by applicable law, herebyassents to, and waives notice of, any extension or postponement of the time for the payment of anyof the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of anypartial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at anytime or times in respect of any default by any of the Borrowers in the performance or satisfactionof any term, covenant, condition or provision of this Credit Agreement, any and all otherindulgences 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 forany of the Obligations or the addition, substitution or release, in whole or in part, of any of theBorrowers. Without limiting the generality of the foregoing, each Borrower assents to any otheraction or delay in acting or failure to act on the part of the Lenders with respect to the failureby any of the Borrowers to comply with any of its respective Obligations, including, withoutlimitation, any failure strictly or diligently to assert any right or to pursue any remedy or tocomply fully with applicable laws or regulations thereunder, which might, but for the provisions ofthis 5.13, afford grounds for terminating, discharging or relieving any of the Borrowers, in wholeor in part, from any of its Obligations under this 5.13, it being the intention of each Borrowerthat, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of suchBorrowers under this 5.13 shall not be discharged except by performance and then only to theextent of such performance. The Obligations of each Borrower under this 5.13 shall not bediminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation,re-construction or similar proceeding with respect to any of the Borrowers, the AdministrativeAgent or the Lenders. The joint and several liability of the Borrowers hereunder shall continue infull force and effect notwithstanding any absorption, merger, amalgamation or any other changewhatsoever in the name, membership, constitution or place of formation of any of the Borrowers, theAdministrative Agent or the Lenders.
          6. To the extent any Borrower makes a payment hereunder in excess of theaggregate amount of the benefit received by such Borrower in respect of the extensions of creditunder the Credit Agreement (the “Benefit Amount“), then such Borrower, after thepayment in full, in cash, of all of the Obligations, shall be entitled to recover from each otherBorrower such excess payment, pro rata, in accordance with the ratio of the Benefit Amountreceived by each such other Borrower to the total Benefit Amount received by all Borrowers, and theright to such recovery shall be deemed to be an asset and property of such Borrower so funding;provided, that each Borrower hereby agrees that it will not enforce any of its rights ofcontribution or subrogation against the other Borrowers with respect to any liability incurred byit hereunder or under any of the other Loan Documents, any payments made by it to any of theLenders or the Administrative Agent with respect to any of the Obligations or any collateralsecurity therefor until such time as all of the Obligations have been irrevocably paid in full incash. Any claim which any Borrower may have against any other Borrower with respect to anypayments to the Lenders or the Administrative Agent hereunder or under any other Loan Document arehereby expressly made subordinate and junior in right of payment, without limitation as to anyincreases in the Obligations arising hereunder or thereunder, to the prior payment in full of theObligations and, in the event of any insolvency, bankruptcy, receivership, liquidation,reorganization or other similar proceeding under the laws of any jurisdiction relating to anyBorrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall bepaid in full before any payment or distribution of any character, whether in cash, securities orother property, shall be made to any other Borrower therefor.
          7. Each Borrower hereby agrees that the payment of any amounts due with respectto the Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the priorpayment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrenceand during the continuance of any Default or Event of Default, such Borrower will not demand, suefor or otherwise attempt to collect any such Indebtedness of any other Borrower owing to suchBorrower until the Obligations shall have been paid in full in cash. If, notwithstanding theforegoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of suchIndebtedness 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 theAdministrative Agent for the pro rata accounts of the Lenders (in accordance with each suchLender’s Commitment Percentage and/or Term Loan Percentage, as the case may be) to be applied torepay (or be held as security for the repayment of) the Obligations.
          8. The provisions of this 5.13 are made for the benefit of the AdministrativeAgent and the Lenders and their successors and assigns, and may be enforced in good faith by themfrom time to time against any or all of the Borrowers as often as the occasion therefor may ariseand without requirement on the part of the Administrative Agent or the Lenders first to marshal anyof their claims or to exercise any of their rights against any other Borrower or to exhaust anyremedies available to them against any other Borrower or to resort to any other source or means ofobtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisionsof this 5.13 shall remain in effect until all of the Obligations shall have been paid in full orotherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect ofany of the Obligations, is rescinded or must otherwise be restored or returned by theAdministrative Agent or the Lenders upon the insolvency, bankruptcy or reorganization of any of theBorrowers or is repaid in good faith settlement of a pending or threatened avoidance claim, orotherwise, the provisions of this 5.13 will forthwith be reinstated in effect, as though suchpayment had not been made.
          9. It is the intention and agreement of the Borrowers and the Lenders that theobligations of the Borrowers under this Credit Agreement shall be valid and enforceable against theBorrowers to the maximum extent permitted by applicable law. Accordingly, if any provision of thisCredit Agreement creating any obligation of the Borrowers in favor of the Lenders shall be declaredto be invalid or unenforceable in any respect or to any extent, it is the stated intention andagreement of the Borrowers and the Lenders that any balance of the obligation created by suchprovision and all other obligations of the Borrowers to the Lenders created by other provisions ofthis Credit Agreement shall remain valid and enforceable. Likewise, if by final order a court ofcompetent jurisdiction shall declare any sums which the Lenders may be otherwise entitled tocollect from the Borrowers under this Credit Agreement to be in excess of those permitted under anylaw (including any federal or state fraudulent conveyance or like statute or rule of law)applicable to the Borrowers’ obligations under this Credit Agreement, it is the stated intentionand agreement of the Borrowers and the Lenders that all sums not in excess of those permitted undersuch applicable law shall remain fully collectible by the Lenders from the Borrowers.
    3. REPRESENTATIONS ANDWARRANTIES.
    4. The Borrowers jointly and severally represent and warrant to the Lendersthat on and as of the date of this Credit Agreement, each Drawdown Date, and the date of issuanceof any Letter of Credit (with any disclosure on a schedule pursuant to this 6 applying to allrelevant representations and warranties, regardless of whether such schedule is referenced in eachrelevant representation):

          1. Incorporation; Good Standing. Each Borrower (i) is acorporation, 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 stateof organization, (ii) has all requisite corporate (or equivalent company or partnership) powerto 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 orsimilar business entity and is duly authorized to do business in each jurisdiction in which itsproperty or business as presently conducted or contemplated makes such qualification necessaryexcept where a failure to be so qualified would not have a Material Adverse Effect.
          2. Authorization. The execution, delivery and performance of theLoan 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 dulyauthorized 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 provisionof 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 theassets, business or any activity of the Borrowers, and (iv) do not conflict with any provisionof the corporate charter or bylaws (or the equivalent company or partnership constitutivedocuments) of any Borrower or any agreement or other instrument binding upon them, including,without limitation, the 2022 Notes Indenture.
          3. Enforceability. The execution, delivery and performance ofthe Loan Documents will result in valid and legally binding obligations of the Borrowersenforceable against each in accordance with the respective terms and provisions hereof and thereof,except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or otherlaws relating to or affecting generally the enforcement of creditors’ rights and except to theextent that availability of the remedy of specific performance or injunctive relief is subject tothe discretion of the court before which any proceeding therefor may be brought.

          1. There has been furnished to the Lenders (i) audited consolidated financialstatements of the Borrowers dated the Balance Sheet Date and (ii) consolidated financial statementsof the Borrowers dated the Interim Balance Sheet Date. Said financial statements have beenprepared in accordance with GAAP and fairly present in all material respects the financialcondition of the Borrowers on a consolidated basis, as at the close of business on the respectivedates thereof and the results of operations for the respective periods then ended. There are nocontingent liabilities of the Borrowers involving material amounts, known to the officers of theBorrowers, which have not been disclosed in said balance sheets and the related notes thereto orotherwise in writing to the Lenders.
          2. The Borrowers on a consolidated basis (both before and after giving effectto the transactions contemplated by this Credit Agreement) are and will be solvent (i.e., they haveassets having a fair value in excess of the amount required to pay their probable liabilities ontheir existing debts as they become absolute and matured) and have, and expect to have, the abilityto pay their debts from time to time incurred in connection therewith as such debtsmature.

          1. Each Employee Benefit Plan and each Guaranteed Pension Plan has beenmaintained and operated in compliance in all material respects with the provisions of ERISA and, tothe extent applicable, the Code, including but not limited to the provisions thereunder respectingprohibited transactions and the bonding of fiduciaries and other persons handling plan funds asrequired by 412 of ERISA. Each Borrower has heretofore delivered to the Administrative Agent themost recently completed annual report, Form 5500, with all required attachments, and actuarialstatement required to be submitted under 103(d) of ERISA, with respect to each Guaranteed PensionPlan.
          2. No Employee Benefit Plan, which is an employee welfare benefit plan withinthe meaning of 3(1) or 3(2)(B) of ERISA, provides benefit coverage subsequent to termination ofemployment, except as required by Title I, Part 6 of ERISA or the applicable stateinsurance laws. A Borrower may terminate each such Plan at any time (or at any time subsequent tothe expiration of any applicable bargaining agreement) in the discretion of such Borrower withoutliability to any Person other than for claims arising prior to termination.
          3. Each contribution required to be made to a Guaranteed Pension Plan, whetherrequired to be made to avoid the incurrence of an accumulated funding deficiency, the notice orlien provisions of 302(f) of ERISA, or otherwise, has been timely made. No waiver of anaccumulated funding deficiency or extension of amortization periods has been received with respectto any Guaranteed Pension Plan, and no Borrower nor any ERISA Affiliate is obligated to or hasposted security in connection with an amendment to a Guaranteed Pension Plan pursuant to 307 ofERISA or 401(a)(29) of the Code. No liability to the PBGC (other than required insurancepremiums, all of which have been paid) has been incurred by any Borrower or any ERISA Affiliatewith respect to any Guaranteed Pension Plan and there has not been any ERISA Reportable Event(other than an ERISA Reportable Event as to which the requirement of 30 days notice has beenwaived), or any other event or condition which presents a material risk of termination of anyGuaranteed Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed Pension Plan(which in each case occurred within twelve months of the date of this representation), and on theactuarial methods and assumptions employed for that valuation, the aggregate benefit liabilities ofall such Guaranteed Pension Plans within the meaning of 4001 of ERISA did not exceed the aggregatevalue of the assets of all such Guaranteed Pension Plans, disregarding for this purpose the benefitliabilities and assets of any Guaranteed Pension Plan with assets in excess of benefitliabilities.
          4. No Borrower nor any ERISA Affiliate has incurred any material liability(including secondary liability) to any Multiemployer Plan as a result of a complete or partialwithdrawal from such Multiemployer Plan under 4201 of ERISA or as a result of a sale of assetsdescribed in 4204 of ERISA. No Borrower nor any ERISA Affiliate has been notified that anyMultiemployer Plan is in reorganization or insolvent under and within the meaning of 4241 or 4245of ERISA or is at risk of entering reorganization or becoming insolvent, or that any MultiemployerPlan intends to terminate or has been terminated under 4041A of ERISA.

        1. The proceeds of the Loans shall be used solely as follows: (a)  torefinance Indebtedness of the Borrowers under the Existing Credit Agreement; (b) to repurchase,repay or refinance, in whole or in part, the 2022 Convertible Subordinated Notes; (c) to financeacquisitions permitted pursuant to 8.4; and (d) for capital expenditures, working capital, Lettersof Credit, and general corporate purposes.

        2. No portion of any Loan is to be used, and no portion of any Letter of Credit isto be obtained, for the purpose of purchasing or carrying any “margin security” or”margin stock” as such terms are used in Regulations U and X of the Board of Governors ofthe Federal Reserve System, 12 C.F.R. Parts 221 and 224.

        No portion of the proceeds of any Loans is to be used, and no portion of anyLetter of Credit is to be obtained, for the purpose of knowingly purchasing, or providing creditsupport for the purchase of, during the underwriting or placement period or within thirty (30) daysthereafter, any Ineligible Securities underwritten or privately placed by a FinancialAffiliate.

          1. none of the Borrowers or Excluded Subsidiaries, nor any operator of theirproperties, is in violation, or alleged violation, of any judgment, decree, order, law, permit,license, rule or regulation pertaining to environmental matters, including without limitation,those arising under RCRA, CERCLA, the Superfund Amendments and Reauthorization Act of 1986(“SARA“), the Federal Clean Water Act, the Federal Clean Air Act, the ToxicSubstances Control Act, or any state or local or federal or provincial statute, regulation,ordinance, order or decree relating to health, safety or the environment (the”Environmental Laws“), which violation would have a Material Adverse Effect;and
          2. except where it would not have a Material Adverse Effect, (i) no portion ofthe Real Property has been used for the handling, processing, storage or disposal of HazardousSubstances and no underground tank or other underground storage receptacle for Hazardous Substancesis located on such properties; (ii) in the course of any activities conducted by the Borrowers, or,to the Borrowers’ knowledge by any other operators of the Real Property, no Hazardous Substanceshave been generated or are being used on such properties; and (iii) there have been no unpermittedReleases or threatened Releases of Hazardous Substances on, upon, into or from the RealProperty.

          1. As of September 30, 2004, the authorized Capital Stock of the Parentconsists of (i) 100,000,000 shares of common stock (par value $0.01 per share) of which 47,861,766shares were outstanding as of such date, and (ii) 7,500,000 shares of preferred stock of which nonewere outstanding as of such date. All of such outstanding shares are fully paid and non-assessable. In addition, as of September 30, 2004, the board of directors of the Parent has dulyreserved (A) 199,449 shares of the Parent’s common stock for issuance pursuant to outstandingwarrants, (B) 5,848,562 shares of the Parent’s common stock for issuance pursuant to outstandingoptions, (C) 4,483,479 shares of the Parent’s common stock for issuance upon the exercise ofemployee stock options available to be granted pursuant to the Parent’s stock option plans, ofwhich up to 300,000 shares may be issued as restricted stock, (D) 198,600 shares of the Parent’scommon stock available to be granted pursuant to the Parent’s warrant plans, (E) 5,424,668 sharesof the Parent’s common stock for issuance upon the conversion of the 2022 Convertible SubordinatedNotes, (F) 99,222 shares of the Parent’s common stock issued and restricted under a restrictedstock plan for general issuance and (G) subject to clause (C) above, 17,787 shares of the Parent’scommon stock available to be granted under restricted stock plans.
          2. The shares of the Capital Stock of the Subsidiaries pledged to theAdministrative Agent pursuant to the Securities Pledge Agreement are held of record as set forth onthe Annex A to the Securities Pledge Agreement. Such Capital Stock constitutes, ofrecord, 100% of the outstanding Capital Stock of each such Subsidiary (or in the case of a foreignSubsidiary, 65% of the outstanding Capital Stock), and, to our knowledge, on a fully-diluted basis,100% of such outstanding Capital Stock (or in the case of a foreign Subsidiary, 65% of suchoutstanding Capital Stock).

      1. Foreign Assets ControlRegulations, Etc. None of the requesting or borrowing of the Loans, the requesting orissuance, extension or renewal of any Letters of Credit or the use of the proceeds of any thereofwill violate the Trading With the Enemy Act (50 U.S.C. 1 et seq., as amended) (the”Trading With the Enemy Act“) or any of the foreign assets control regulations ofthe United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the”Foreign Assets Control Regulations“) or any enabling legislation or executiveorder relating thereto (which for the avoidance of doubt shall include, but shall not be limited to(a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions WithPersons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the”Executive Order“) and (b) the Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)).Furthermore, no Borrower or other Affiliates (a) is or will become a “blocked person” asdescribed in the Executive Order, the Trading With the Enemy Act or the Foreign Assets ControlRegulations or (b) engages or will engage in any dealings or transactions, or be otherwiseassociated, with any such “blocked person”.
    5. The Borrowers covenant and agree that, so long as any Obligation isoutstanding or any Lender has any obligation to make any Loans or the Administrative Agent has anyobligation to issue, extend or renew any Letters of Credit:

          1. within five (5) days after the filing with the Securities and ExchangeCommission of the Parent’s Annual Report on Form 10-K with respect to each fiscal year (and in anyevent within 100 days after the end of such fiscal year), the consolidated and consolidatingbalance sheets of the Borrowers as at the end of such year, statements of cash flows, and therelated consolidated and consolidating statements of operations, each setting forth in comparativeform the figures for the previous fiscal year, all such consolidated and consolidating financialstatements to be in reasonable detail, prepared in accordance with GAAP and, with respect to theconsolidated financial statements, certified by the Accountants;
          2. within five (5) days after the filing with the Securities and ExchangeCommission of the Parent’s Quarterly Report on Form 10-Q with respect to the first three fiscalquarters of each fiscal year (and in any event within 55 days after the end of each such fiscalquarter), copies of the consolidated and consolidating balance sheets and statement of operationsof the Borrowers as at the end of such quarter, subject to year end adjustments, and the relatedstatement of cash flows, all in reasonable detail and prepared in accordance with GAAP, with acertification by the principal financial or accounting officer of the Borrowers (the”CFO“) that the consolidated financial statements are prepared in accordance withGAAP and fairly present the consolidated financial condition of the Borrowers as at the close ofbusiness on the date thereof and the results of operations for the period then ended;
          3. simultaneously with the delivery of the financial statements referred to in(a) and (b) above, a statement in the form of Exhibit B hereto (the”Compliance Certificate“) certified by the CFO that the Borrowers are incompliance with the covenants contained in 7, 8 and 9 hereof as of the end of the applicableperiod setting forth in reasonable detail computations evidencing such compliance, providedthat if the Borrowers shall at the time of issuance of such certificate or at any other timeobtain knowledge of any Default or Event of Default, the Borrowers shall include in suchcertificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature andperiod of existence thereof and what action the Borrowers propose to take with respect thereto anda certificate of the Borrowers’ Chief Operating Officer in the form attached hereto asExhibit C with respect to environmental matters;
          4. as soon as practicable, but in any event not later than sixty (60) daysafter each fiscal year end of the Borrowers, a copy of the annual budget and projections for theBorrowers for such fiscal year;
          5. contemporaneously with, or promptly following, the filing or mailingthereof, copies of all material of a financial nature filed with the Securities and ExchangeCommission or sent to the stockholders of the Borrowers; and
          6. from time to time, such other financial data and other information(including accountants’ management letters) as the Lenders may reasonably request.

        The Borrowers hereby acknowledge that (i) the Administrative Agent will makeavailable to the Lenders and the Issuing Lender materials and/or information provided by or onbehalf of the Borrowers hereunder (collectively, “Borrower Materials“) by postingBorrower Materials on IntraLinks or another similar electronic system (the “Platform“) and(ii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receivematerial non-public information with respect to the Borrowers or their securities) (each, a”Public Lender“). The Borrowers hereby agree that (w) all Borrower Materials thatare to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” bythe Borrowers, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently onthe first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrowers shall be deemedto have authorized the Administrative Agent, the Issuing Lender and the Lenders to treat suchBorrower Materials as either publicly available information or not material information (althoughit may be sensitive and proprietary) with respect to the Borrowers or their securities for purposesof United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” arepermitted to be made available through a portion of the Platform designated “Public Investor”; and(z) the Administrative Agent 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 “PublicInvestor”.

          1. The Borrowers will provide the Lenders with written notice as to anymaterial cancellation or material change in any insurance of the Borrowers within ten(10) Business Days after the Borrowers’ receipt of any notice (whether formal or informal) ofsuch cancellation or change by any of their insurers.
          2. The Borrowers will promptly notify the Lenders in writing of any of thefollowing events:
            1. upon obtaining knowledge of any violation of any Environmental Law regardingthe Real Property or any Borrower’s operations, which violation could have a Material AdverseEffect; (ii) upon obtaining knowledge of any potential or known Release or threat of Releaseof any Hazardous Substance at, from, or into the Real Property which is reportable in writing toany governmental authority and which is material in amount or nature; (iii) upon receipt ofany notice of violation of any Environmental Laws or of any Release or threatened Release ofHazardous Substances, including a notice or claim of liability or potential responsibility from anythird party (including without limitation any federal, state or local governmental officials) andincluding notice of any formal inquiry, proceeding, demand, investigation or other action withregard to (A) operation of the Real Property, (B) contamination on, from or into the RealProperty, or (C) investigation or remediation of offsite locations at which any Borrower orany of its predecessors is alleged to have directly or indirectly Disposed of Hazardous Substances,which violation or Release in any such case could have a Material Adverse Effect; or (iv) uponobtaining knowledge that any material expense or loss has been incurred by such governmentalauthority in connection with the assessment, containment, removal or remediation of any HazardousSubstances with respect to which any Borrower may be liable or for which a lien may be imposed onthe Real Property.

          1. Any new Subsidiary (other than Excluded Subsidiaries) created or acquired bya Borrower as permitted under 8.4 shall become a Borrower hereunder on or before the fifteenth(15th) Business Day after the end of the calendar month in which such Subsidiary was created oracquired or such earlier date as the Administrative Agent may, in its sole discretion, require butno earlier than the fifteenth (15th) Business Day after the date of the creation or acquisition ofsuch Subsidiary, by (i) signing a joinder agreement in substantially the form attached hereto asExhibit E or entering into an amendment to this Credit Agreement and the SecurityDocuments, as applicable, with the other parties hereto and thereto, in form and substancesatisfactory to the Administrative Agent, providing that such Subsidiary shall become a Borrowerhereunder, 100% of the stock (or in the case of a foreign Subsidiary, 65% of the stock) and assetsof which shall be pledged to the Administrative Agent for the benefit of the Lenders (subject toPermitted Liens), and (ii) providing such other documentation as the Administrative Agent mayreasonably request, including, without limitation, documentation with respect to the conditionsspecified in 10 hereof. In such event, the Administrative Agent is hereby authorized by theparties to amend Schedule 2 to include such new Subsidiary.
          2. The Parent shall at all times directly or indirectly through a Subsidiaryown all of the Capital Stock of each of the Subsidiaries (other than the Excluded Subsidiaries),and such Capital Stock shall at all times be pledged to the Administrative Agent pursuant to theSecurities Pledge Agreement or pursuant to a pledge agreement in form and substance satisfactory tothe Administrative Agent.

      1. Notice of PermittedDebt Offerings. The Borrowers will promptly notify the Lenders in writing of the issuanceand general terms (including the dates of any principal payments) of any Permitted Debt Offering.In addition, the Borrowers shall provide the Lenders with one hundred (100) days prior writtennotice of any Permitted Debt Offering Maturity Event.
    6. The Borrowers covenant and agree that, so long as any Obligation isoutstanding or any Lender has any obligation to make any Loans or the Administrative Agent has anyobligation to issue, extend or renew any Letters of Credit:

          1. Indebtedness to the Lenders and the Administrative Agentarising under this Credit Agreement and the other Loan Documents;
          2. incurrence of guaranty, suretyship or indemnification obligations inconnection with the Borrowers’ performance of services for their respective customers in theordinary course of their businesses;
          3. Indebtedness of one Borrower to another Borrower;
          4. (i) Indebtedness of the Borrowers incurred in connection with theacquisition or lease of any equipment or other property by the Borrowers under any Synthetic Lease,Capitalized Lease or other lease arrangement or purchase money financing and (ii) otherIndebtedness (other than as permitted under other subsections hereof), provided that allIndebtedness under this clause (d) shall not exceed in the aggregate the greater of (i)$100,000,000 and (ii) eight percent (8%) of Consolidated Total Assets, at any timeoutstanding;
          5. Indebtedness of the Borrowers with respect to bonds for closure and post-closure obligations relating to any landfill owned or operated by the Borrowers and municipalcollection contracts;
          6. The Pierce County Put;
          7. the Convertible Subordinated Notes and any Subordinated Debt issued inconnection with the prepayment, purchase or replacement of the 2022 Convertible Subordinated Noteseffectuated in accordance with 8.11 herein, provided, (i) the Subsidiaries are notguarantors of the Convertible Subordinated Notes and (ii) the Obligations of the Borrowers underthis Credit Agreement and the obligations of the Borrowers under any Swap Contracts with theLenders shall be Designated Senior Indebtedness as defined in the 2022 Notes Indenture;
          8. Indebtedness with respect to any Permitted Debt Offering;
          9. Indebtedness with respect to the L/C Supported IRBs;
          10. Indebtedness of the Borrowers in respect of Swap Contracts (including fuelprice swaps, fuel price caps, and fuel price collar or floor agreements, and similar agreements orarrangements) entered into in the ordinary course of business and not for speculativepurposes;
          11. Indebtedness of the Borrowers with respect to letters of credit of Personsacquired by the Borrowers; provided, that such letters of credit shall be retired orreplaced by Letters of Credit under this Agreement as soon as possible but in any event not laterthan one hundred twenty days (120) days after the closing of any such acquisition;
          12. Indebtedness of the Parent or any of its Subsidiaries incurred in connectionwith Permitted Receivables Transactions not exceeding $75,000,000 in an aggregate principal amountat any one time outstanding; and
          13. Indebtedness of any Receivables SPV arising out of any investment in suchReceivables SPV made by the Parent, the Borrowers or any Subsidiary of any Borrower in accordancewith 8.3 (k).

          1. Liens to secure taxes, assessments and other government charges in respectof obligations not overdue or liens on properties to secure claims for labor, material or suppliesin respect of obligations not overdue (provided that, if the obligation with respect to which anysuch lien arises is being contested in good faith by appropriate proceedings, such obligation mayremain unpaid during the pendency of such proceedings as long as the Borrowers shall have set asideon their books adequate reserves with respect thereto);
          2. Deposits or pledges made in connection with, or to secure payment of,workmen’s compensation, unemployment insurance, old age pensions or other social securityobligations;
          3. Liens in respect of judgments or awards which have been in force for lessthan the applicable period for taking an appeal so long as execution is not levied thereunder or inrespect of which the applicable Borrower shall at the time in good faith be prosecuting an appealor proceedings for review and in respect of which a stay of execution shall have been obtainedpending such appeal or review and in respect of which such Borrower maintains adequatereserves;
          4. Liens of carriers, warehousemen, mechanics and materialmen, and other likeliens, in existence less than 120 days from the date of creation thereof in respect of obligationsnot overdue, provided that such liens may continue to exist for a period of more than120 days if the validity or amount thereof shall currently be contested by the applicable Borrowerin good faith by appropriate proceedings and if such Borrower shall have set aside on its booksadequate reserves with respect thereto as required by GAAP and provided further thatsuch Borrower will pay any such claim forthwith upon commencement of proceedings to foreclose anysuch lien;
          5. Encumbrances on Real Property consisting of easements, rights of way, zoningrestrictions, restrictions on the use of real property and defects and irregularities in the titlethereto, landlord’s or lessor’s liens under leases to which any Borrower is a party, and otherminor liens or encumbrances none of which in the opinion of such Borrower interferes materiallywith 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;
          6. Liens securing Indebtedness permitted under 8.1(d)(i) or under 8.1(k)(including first priority liens securing purchase money Indebtedness) incurred in connection withthe lease or acquisition of property or fixed assets or industrial bond financings, providedthat such Liens shall encumber only the property or assets so acquired or financed and shallnot exceed the fair market value thereof;
          7. Liens in favor of the Administrative Agent for the benefit of the Lendersand the Administrative Agent under the Security Documents;
          8. Liens granted in favor of any Lender or the Administrative Agent for thebenefit of the Lenders and the Administrative Agent under any Swap Contract;
          9. Liens granted in favor of Evergreen or one of its affiliates on theEvergreen Shares (and on any additional shares of Evergreen acquired by the Parent resulting fromthe exercise of the Evergreen Option) as security for surety bonds issued by Evergreen or suchaffiliate to the Borrowers;
          10. Liens, whether created by contract, law, regulation or ordinance, (i)securing Indebtedness permitted by 8.1(b), (e) and (k), provided that any securitygranted therefor is limited to (i) rights to payment under, and use of equipment or related assetsto perform, the contracts to which such guaranty, suretyship or bond obligations relate, (ii) Liensarising under the laws of suretyship and (iii) similar Liens granted in favor of municipalities orother governmental entities pursuant to any Scheduled Contract from time to time listed onSchedule 8.2(j), provided, that the Administrative Agent is notified in writing on aquarterly basis of any additions to such Schedule 8.2(j), and provided,further, that such liens (A) encumber only the containers, bins, carts and vehicles used inconnection with such Scheduled Contract and (B) are promptly released as soon as such release isnot prohibited under the terms of such Scheduled Contract; with the Administrative Agent beinghereby authorized by the parties to amend Schedule 8.2(j) to reflect any newScheduled Contracts;
          11. Liens listed on Schedule 8.2(k) hereto;
          12. Liens securing deposits made on account of liabilities to insurance carriersunder insurance or self-insurance arrangements; and
          13. Liens granted to a Receivables SPV in connection with a PermittedReceivables Transaction and securing Indebtedness of the Borrowers and their Subsidiaries permittedby 8.1(l) provided that such Liens attach only to the accounts receivable which arethe subject of such Indebtedness and to the Capital Stock of the Receivables SPV.

          1. marketable direct or guaranteed obligations of the UnitedStates of America that mature within one (1) year from the date of purchase;
          2. demand deposits, insured deposits, certificates of deposit, bankersacceptances and time deposits of United States banks or Eligible Foreign Lenders having unimpairedcapital and surplus in excess of $1,000,000,000 or, in the case of a Lender under this Agreement,$250,000,000;
          3. securities commonly known as “commercial paper” issued by acorporation organized and existing under the laws of the United States of America or any statethereof that at the time of purchase have been rated and the ratings for which are not less than”P 1″ if rated by Moody’s Investors Service, Inc., and not less than”A 1″ if rated by Standard and Poor’s Rating Group;
          4. extensions of credit in the nature of accounts receivable or notesreceivable arising from the sale or lease of goods or services in the ordinary course ofbusiness;
          5. investments existing on the date hereof and listed onSchedule 8.3;
          6. loans and advances and equity investments by any Borrower to anotherexisting Borrower;
          7. investments permitted under 8.4;
          8. loans to employees of the Parent for the purpose of financing suchemployees’ acquisition of equity of the Parent (through the exercise of stock options or otherwise)or for relocation, travel and entertainment costs and expenses in an aggregate principal amount notto exceed $5,000,000 at any time outstanding;
          9. the Evergreen Shares and the Evergreen Option; provided thatthe Parent may only exercise the Evergreen Option so long as the sum of the total cashconsideration paid by the Parent for the Evergreen Shares and any additional shares of Evergreenacquired by the Parent resulting from the exercise of the Evergreen Option does not exceed twelvemillion dollars ($12,000,000) in the aggregate;
          10. Investments in trust funds securing closure and post-closure obligations ofany Borrower relating to any landfill owned or operated by such Borrower; and
          11. formation and funding of a Receivables SPV in connection with a PermittedReceivables Transaction in an amount not to exceed $1,000,000.
          12. in addition to Investments permitted under clauses (a) through (k) above,other Investments not otherwise permitted hereunder in an aggregate amount not to exceed thegreater of (i) $25,000,000 and (ii) two percent (2%) of Consolidated Total Assets, at any timeoutstanding;

        provided, that none of the Borrowers shall make any Investments underclauses (i), (k) or (l) above unless both before and after giving effect thereto there does notexist a Default or Event of Default and no Default or Event of Default would be created by themaking of such Investment .

      1. Merger, Consolidation andDisposition of Assets.
          1. the Borrowers are in current compliance with and, giving effect to theproposed acquisition (including any borrowings made or to be made in connection therewith), willcontinue to be in compliance with all of the covenants in 9 hereof on a pro forma historicalcombined basis as if the transaction occurred on the first day of the period ofmeasurement;
          2. at the time of such acquisition, no Default or Event of Default has occurredand is continuing, and such acquisition will not otherwise create a Default or an Event of Defaulthereunder;
          3. the business to be acquired is predominantly in the same lines of businessas the Borrowers, or businesses reasonably related or incidental thereto (e.g., non-hazardous solidwaste collection, transfer, hauling, recycling, or disposal);
          4. the business to be acquired operates predominantly in the continental UnitedStates and/or Canada;
          5. all of the assets to be acquired shall be owned by an existing or newlycreated Subsidiary of the Parent which Subsidiary shall be or became (in accordance with 7.16) aBorrower, 100% of the assets and Capital Stock (or in the case of a foreign Subsidiary, 65% of theCapital Stock) of which have been or, in accordance with 7.16, will be pledged to theAdministrative Agent on behalf of the Lenders (subject to Permitted Liens) or, in the case of aCapital Stock acquisition, the acquired company, in accordance with 7.16, shall become a Borroweror shall be merged with and into a wholly owned Subsidiary that is a Borrower and such newlyacquired or created Subsidiary shall otherwise comply with the provisions of 7.16 hereof;
          6. not later than seven (7) days prior to the proposed acquisition date, (1) acopy of the purchase agreement and financial projections, together with audited (if available, orotherwise unaudited) financial statements for any Subsidiary to be acquired or created, for thepreceding two (2) fiscal years or such shorter period of time as such Subsidiary has been inexistence shall have been furnished to the Administrative Agent, and (2) a summary of theBorrowers’ results of their standard due diligence review, in each case only upon request by theAdministrative Agent;
          7. not later than seven (7) days prior to the proposed acquisition date, in thecase of the acquisition of an operating landfill, a review by a Consulting Engineer and a copy ofthe Consulting Engineer’s report shall have been furnished to the Administrative Agent;
          8. the board of directors and (if required by applicable law) the shareholders,or the equivalent thereof, of the business to be acquired has approved such acquisition;
          9. if such acquisition is made by a merger, a Borrower, or a wholly-ownedSubsidiary of the Parent which shall become a Borrower in connection with such merger, shall be thesurviving entity; and
          10. cash consideration to be paid by such Borrower in connection with any suchacquisition or series of related acquisitions (including cash deferred payments, contingent orotherwise, and the aggregate amount of all Consolidated Total Funded Debt assumed), shall notexceed (i) $100,000,000 if at the time of such acquisition and after giving effect to suchacquisition, the Borrower has (A) a pro-forma ratio of Senior Funded Debt to EBITDA of less than(x) 2.25 to 1.00 prior to the payment in full of the 2022 Convertible Subordinated Notes or (y)2.75 to 1.00 after payment in full of the 2022 Convertible Subordinated Notes, as the case may be,and (B) a pro-forma Leverage Ratio of less than 3.25 to 1.00 or (ii) $50,000,000otherwise.

          1. engage in any “prohibited transaction” within the meaning of 406of ERISA or 4975 of the Code which could result in a material liability for any Borrower;or
          2. permit any Guaranteed Pension Plan to incur an “accumulated fundingdeficiency”, as such term is defined in 302 of ERISA, whether or not such deficiency is ormay be waived; or
          3. fail to contribute to any Guaranteed Pension Plan to an extent which, orterminate any Guaranteed Pension Plan in a manner which, could result in the imposition of a lienor encumbrance on the assets of any Borrower pursuant to 302(f) or 4068 of ERISA; or
          4. amend any Guaranteed Pension Plan in circumstances requiring the posting ofsecurity pursuant to 307 of ERISA or 401(a)(29) of the Code; or
          5. permit or take any action which would result in the aggregate benefitliabilities (within the meaning of 4001 of ERISA) of all Guaranteed Pension Plans exceeding thevalue of the aggregate assets of such Plans, disregarding for this purpose the benefit liabilitiesand assets of any such Plan with assets in excess of benefit liabilities.

    7. FINANCIAL COVENANTS.
    8. The Borrowers covenant and agree that, so long as any Obligation isoutstanding or any Lender has any obligation to make any Loans or the Administrative Agent has anyobligation to issue, extend or renew any Letters of Credit:

    9. CLOSING CONDITIONS.
    10. The obligations of the Lenders to make the Loans and the AdministrativeAgent to issue Letters of Credit on the Closing Date and otherwise be bound by the terms of thisCredit Agreement shall, except as set forth in the Post-Closing Agreement, be subject to thesatisfaction of each of the following conditions precedent:

      1. The Administrative Agent shall have received from each Borrower a certificate asto the good standing of each from the Secretary of State or other appropriate official of the stateof its organization, dated no earlier than forty-five (45) days prior to the Closing Date. TheAdministrative Agent shall also have received from each Borrower a certificate of its Secretarycertifying the following attachments thereto: (a) a copy of its certificate or articles ofincorporation or other constitutive documents, in each case as amended to date, certified by theSecretary of State or other appropriate official of the state of its organization, (b) a trueand correct copy of its by-laws (or equivalent constitutive documents), including all amendmentsthereto, and (c) a true and correct copy of the resolutions of its board of directorsauthorizing the transactions contemplated hereunder and under the other Loan Documents. SuchSecretary’s Certificate shall also give the name and bear a specimen signature of each individualwho shall be authorized (i) to sign the Loan Documents on behalf of the Borrowers;(ii) to make Loan and Letter of Credit Requests; and (iii) to give notices and to takeother action on the Borrowers’ behalf under the Loan Documents. Notwithstanding the foregoing, tothe extent that any Borrower delivered any such certificate of its Secretary, together with each ofthe attachments described above, in connection with the Existing Credit Agreement, such Borrowermay deliver, in lieu of the attachments described above, a certificate of its Secretary certifyingthat there have been no amendments or other modifications to any of the information provided in thepreviously delivered certificate and set forth in the materials attached thereto and that suchinformation and such materials continue to be true, correct and complete as of the ClosingDate.

    11. The obligations of the Lenders to make any Loan (including withoutlimitation the obligation of the Issuing Lender to issue, extend or renew any Letter of Credit) onand subsequent to the Closing Date is subject to the following conditions precedent:

    12. COLLATERAL SECURITY.
          1. The Obligations shall be secured by (a) a perfected (except in thecase of Real Property and motor vehicles, subject to the following proviso) first-priority securityinterest (subject only to Permitted Liens) in all assets of each Borrower (other than the ExcludedAssets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreementto which each Borrower is a party; (b) a pledge of 100% of the Capital Stock (or in the case of aforeign Subsidiary, 65% of the Capital Stock) of such Borrowers (other than the Parent) to theAdministrative Agent on behalf of the Lenders and the Administrative Agent pursuant to the SecurityDocuments; and (c) a pledge of 65% of the Capital Stock of each foreign Subsidiary; providedthat the Borrowers hereby agree, upon notice from the Administrative Agent and the RequiredLenders, to deliver, as promptly as practicable, but in any event within sixty (60) days, titles tomotor vehicles and mortgages with respect to Real Property and take such other steps as may bereasonably requested (including, without limitation, the delivery of legal opinions, engineer’sreports, environmental site assessments and title insurance) so as to provide the AdministrativeAgent, for the benefit of the Lenders and the Administrative Agent, a perfected first-prioritysecurity interest in such assets.
          2. The Borrowers hereby acknowledge that (i) any and all Uniform CommercialCode financing statements (together with all rights thereunder) filed in connection with theExisting Credit Agreement naming Fleet National Bank, as secured party, and such Borrower, asdebtor, have been, or simultaneously herewith are being, assigned to the Administrative Agent andshall be effective to perfect the Administrative Agent’s security interest granted by such Borrowerpursuant to the Loan Documents to the extent that such security interest may be perfected by thefiling of Uniform Commercial Code financing statements and (ii) such prior filings representpre-filings of Uniform Commercial Code financing statements for purposes of so perfecting thesecurity interest granted by the Borrowers under the Loan Documents. Until all of the Obligationshave been finally paid and satisfied in full, the provisions of this 12(b) shall continue toapply, and such filings shall continue to be effective and not subject to any right of terminationin respect of the security interests granted herein, whether any obligations under the ExistingCredit Agreement are to be discharged with the proceeds of any of the Loans or are to continueindependently or otherwise.
          3. In the event the Borrowers dispose of any assets in accordance with 8.4.2(and 4.4.1 where applicable), the Administrative Agent will, at the Borrowers’ sole cost andexpense, execute and deliver all such forms, releases, discharges, assignments, terminationstatements, and similar documents as the Borrowers may reasonably request in order to release theLiens granted to the Administrative Agent with respect to such assets.
          1. if the Borrowers shall fail to pay any principal of the Loans or anyReimbursement Obligation when the same shall become due and payable, whether at the RevolvingCredit Maturity Date or the Term Loan Maturity Date, as applicable, or any accelerated date ofmaturity or at any other date fixed for payment;
          2. if the Borrowers shall fail to pay any interest or fees or other amountsowing under the Loan Documents within five (5) Business Days after the same shall become dueand payable whether at the Revolving Credit Maturity Date or the Term Loan Maturity Date, asapplicable, or any accelerated date of maturity or at any other date fixed for payment;
          3. if the Borrowers shall fail to comply with the covenants contained in 7.1,7.7, 7.8, 7.10, 7.13, 7.14, 7.15, 7.16, 8 or 9;
          4. if the Borrowers shall fail to comply with the covenants contained in (i) 7.2, 7.3, 7.5, 7.6, 7.9, 7.11, 7.12, or 7.17 within thirty (30) days of the Borrowers’ knowledgeof a violation of such covenants or (ii) 7.4 within five (5) days of the Borrowers’ knowledge of aviolation of such covenant;
          5. if the Borrowers shall fail to perform any term, covenant or agreementcontained herein or in any of the other Loan Documents (other than those specified in subsections(a), (b), (c) and (d) above) within 30 days after written notice of such failure has beengiven to the Borrowers by the Administrative Agent or any Lender;
          6. if any representation or warranty contained in this Credit Agreement or inany document or instrument delivered pursuant to or in connection with this Credit Agreement shallprove to have been false in any material respect upon the date when made or repeated;
          7. if any Borrower or any Excluded Subsidiary shall fail to pay at maturity, orwithin any applicable period of grace, any and all obligations for borrowed money (other than theObligations) or any guaranty with respect thereto in an aggregate amount greater than $5,000,000 orfail to observe or perform any material term, covenant or agreement contained in any agreement bywhich it is bound, evidencing or securing borrowed money in an aggregate amount greater than$5,000,000 for such period of time as would, or would have permitted (assuming the giving ofappropriate notice if required) the holder or holders thereof or of any obligations issuedthereunder to accelerate the maturity thereof, unless the same shall have been waived by theholder(s) thereof;
          8. if any Borrower or any Excluded Subsidiary makes an assignment for thebenefit of creditors, or admits in writing its inability to pay or generally fails to pay its debtsas they mature or become due, or petitions or applies for the appointment of a trustee or othercustodian, liquidator or receiver of any Borrower or any Excluded Subsidiary or of any substantialpart of the assets of any Borrower or any Excluded Subsidiary or commences any case or otherproceeding relating to any Borrower or any Excluded Subsidiary under any bankruptcy,reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation orsimilar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or infurtherance of any of the foregoing, or if any such petition or application is filed or any suchcase or other proceeding is commenced against any Borrower or any Excluded Subsidiary or suchBorrower or such Excluded Subsidiary indicates its approval thereof, consent thereto oracquiescence therein, or such petition or application shall not have been dismissed within sixty(60) days following the filing thereof;
          9. a decree or order is entered appointing any such trustee, custodian,liquidator or receiver or adjudicating any Borrower or any Excluded Subsidiary bankrupt orinsolvent, or approving a petition in any such case or other proceeding, or a decree or order forrelief is entered in respect of any Borrower or any Excluded Subsidiary in an involuntary caseunder applicable bankruptcy laws as now or hereafter constituted;
          10. if there shall remain in force, undischarged, unsatisfied and unstayed, formore than forty-five (45) days, whether or not consecutive, any final judgment against anyBorrower or any Excluded Subsidiary which, with other outstanding final judgments against theBorrowers and the Excluded Subsidiaries, exceeds in the aggregate $5,000,000 after taking intoaccount any undisputed insurance coverage;
          11. any Borrower or any Excluded Subsidiary or any ERISA Affiliate incurs anyliability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregateamount exceeding $5,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawalliability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annualpayments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed PensionPlan: (i) an ERISA Reportable Event, or a failure to make a required installment or otherpayment (within the meaning of 302(f)(1) of ERISA), provided that the Administrative Agentdetermines in its reasonable discretion that such event (A) could be expected to result inliability of any Borrower or any Excluded Subsidiary to the PBGC or such Guaranteed Pension Plan inan aggregate amount exceeding $5,000,000 and (B) could constitute grounds for the terminationof such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United StatesDistrict Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of alien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United StatesDistrict Court of a trustee to administer such Guaranteed Pension Plan; or (iii) theinstitution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
          12. if any of the Loan Documents shall be cancelled, terminated, revoked orrescinded or the Administrative Agent’s security interests or liens in a substantial portion of theCollateral shall cease to be perfected, or shall cease to have the priority contemplated by theSecurity Documents, in each case otherwise than in accordance with the terms thereof or with theexpress prior written agreement, consent or approval of the Lenders, or any action at law, suit inequity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall becommenced by or on behalf of any Borrower or any stockholder of any Borrower who is an officer ordirector of such Borrower, or any court or any other governmental or regulatory authority or agencyof competent jurisdiction shall make a determination that, or issue a judgment, order, decree orruling to the effect that, any one or more of the Loan Documents is illegal, invalid orunenforceable in accordance with the terms thereof;
          13. (i) the Parent shall at any time, legally or beneficially own less than onehundred percent (100%) of the shares of the Capital Stock of each other Borrower (directly orindirectly in accordance with 7.16), or (ii) any person or group of persons (within the meaning ofSection 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquiredbeneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and ExchangeCommission under said Act) of 20% or more of the outstanding shares of common stock of the Parent;or, during any period of twelve consecutive calendar months, individuals who were directors of theParent on the first day of such period shall cease to constitute a majority of the board ofdirectors unless such new directors were approved by a majority of the directors who were directorson the first day of such period; provided, however, that any such change of controlresulting from an acquisition permitted under 8.4 shall not constitute a Default or an Event ofDefault hereunder; or
          14. a “Change of Control” as defined in the 2022 Notes Indenture or inthe Permitted Debt Offering shall occur;

        then, and in any such event, so long as the same may be continuing, theAdministrative Agent may, and at the request of the Required Lenders shall, by notice in writing tothe Borrowers, declare all amounts owing with respect to this Credit Agreement and the other LoanDocuments and all Reimbursement Obligations to be, and they shall thereupon forthwith become,immediately due and payable without presentment, demand, protest or other notice of any kind, allof which are hereby expressly waived by the Borrowers; provided that in the event of anyEvent of Default specified in 13.1(h) or 13.1(i), all such amounts shall become immediately dueand payable automatically and without any requirement of notice from the Administrative Agent orany Lender. Upon demand by the Lenders after the occurrence of any Event of Default, the Borrowersshall immediately provide to the Administrative Agent cash in an amount equal to the MaximumDrawing Amount of all Letters of Credit outstanding, to be held by the Administrative Agent ascollateral security for the Obligations.

      1. Remedies. Subject to 14, in case any one or more Events of Default shall have occurred and be continuing, and whetheror not the Lenders shall have accelerated the maturity of the Loans and other Obligations pursuantto 13.1, each Lender may, after giving the Borrowers and Administrative Agent written notice threeBusiness Days before such suit, action or other proceeding, proceed to protect and enforce itsrights by suit in equity, action at law or other appropriate proceeding, whether for the specificperformance of any covenant or agreement contained in this Credit Agreement and the other LoanDocuments or any instrument pursuant to which the Obligations to such Lender are evidenced,including, without limitation, as permitted by applicable law the obtaining of the ex parteappointment of a receiver, and, if such amount shall have become due, by declaration or otherwise,proceed to enforce the payment thereof or any legal or equitable right of such Lender,provided that, if any of the Collateral is located in California, Louisiana or anyother state or province having a one form of action rule or any rule which might impair theCollateral, then prior to initiating any such proceeding, such Lender shall have supplied theAdministrative Agent with opinions of nationally recognized law firms specializing in Californialaw, Louisiana law, and the law of any other state or province, as applicable, having a one form ofaction rule to the effect that actions by such Lender under such circumstances shall not constitutean action for purposes of such state’s or province’s one form of action rule or in any other wayimpair the Collateral. No remedy herein conferred upon any Lender, the Administrative Agent or theholder of any Note or purchaser of any Letter of Credit Participation is intended to be exclusiveof any other remedy and each and every remedy shall be cumulative and shall be in addition to everyother remedy given hereunder or now or hereafter existing at law or in equity or by statute or anyother provision of law.
          1. First, to the payment of, or (as the case may be) the reimbursementof the Administrative Agent for or in respect of all reasonable costs, expenses, disbursements andlosses which shall have been incurred or sustained by the Administrative Agent in connection withthe collection of such monies by the Administrative Agent, for the exercise, protection orenforcement by the Administrative Agent of all or any of the rights, remedies, powers andprivileges of the Administrative Agent under this Credit Agreement or any of the other LoanDocuments or in respect of the Collateral or in support of any provision of adequate indemnity tothe Administrative Agent against any taxes or liens which by law shall have, or may have, priorityover the rights of the Administrative Agent to such monies;
          2. Second, to all other Obligations; provided that distributionsshall be made (A) pari passu among the Obligations (including the Maximum DrawingAmount of the Letters of Credit); provided, that upon the reduction, cancellation, expiration ortermination of any Letter of Credit, the Maximum Drawing Amount which has been included as anObligation and any cash collateral held for the benefit of the Lenders in respect thereto will beredistributed pari passu to the Lenders in accordance with this 13.4(b)(A), and (B)with respect to each type of Obligation owing to the Lenders, such as interest, principal, fees andexpenses, among the Lenders pro rata in accordance with the amount of all such Obligationsoutstanding;
          3. Third, upon payment and satisfaction in full or other provisions for paymentin full satisfactory to the Lenders and the Administrative Agent of all of the Obligations, to thepayment of any obligations required to be paid pursuant to 9-608(a)(1)(C) or 9-615(a)(3) of theUniform Commercial Code of the State of New York; and
          4. Fourth, the excess, if any, shall be returned to the Borrowers or to suchother Persons as are entitled thereto.
    13. If an Event of Default shall have occurred and be continuing, each Lender,the Issuing Lender and each of their respective Affiliates is hereby authorized at any time andfrom time to time, to the fullest extent permitted by applicable law, to set off and apply any andall deposits (general or special, time or demand, provisional or final, in whatever currency) atany time held and other obligations (in whatever currency) at any time owing by such Lender, theIssuing Lender or any such Affiliate to or for the credit or the account of any Borrower againstany and all of the obligations of such Borrower now or hereafter existing under this Agreement orany other Loan Document to such Lender or the Issuing Lender, irrespective of whether or not suchLender or the Issuing Lender shall have made any demand under this Agreement or any other LoanDocument and although such obligations of such Borrower may be contingent or unmatured or are owedto a branch or office of such Lender or the Issuing Lender different from the branch or officeholding such deposit or obligated on such indebtedness. The rights of each Lender, the IssuingLender and their respective Affiliates under this Section are in addition to other rights andremedies (including other rights of setoff) that such Lender, the Issuing Lender or theirrespective Affiliates may have. Each Lender and the Issuing Lender agrees to notify the Borrowersand the Administrative Agent promptly after any such setoff and application, provided that thefailure to give such notice shall not affect the validity of such setoff and application.

      1. Appointment and Authorization.
          1. Each of the Lenders and the Issuing Lender hereby irrevocably appoints Bankof America to act on its behalf as the Administrative Agent hereunder and under the other LoanDocuments and authorizes the Administrative Agent to take such actions on its behalf and toexercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,together with such actions and powers as are reasonably incidental thereto. The provisions of this 15 are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, andno Borrower shall have rights as a third party beneficiary of any of such provisions.
          2. The relationship between the Administrative Agent and each of the Lenders isthat of an independent contractor. The use of the term “Administrative Agent” is for convenienceonly and is used to describe, as a form of convention, the independent contractual relationshipbetween the Administrative Agent and each of the Lenders. Nothing contained in this CreditAgreement nor the other Loan Documents shall be construed to create an agency, trust or otherfiduciary relationship between the Administrative Agent and any of the Lenders.
          3. As an independent contractor empowered by the Lenders to exercise certainrights and perform certain duties and responsibilities hereunder and under the other LoanDocuments, the Administrative Agent is nevertheless a “representative” of the Lenders, as that termis defined in Article 1 of the Uniform Commercial Code of the State of New York, for purposes ofactions for the benefit of the Lenders and the Administrative Agent with respect to all collateralsecurity and guaranties contemplated by the Loan Documents. Such actions include the designationof the Administrative Agent as “secured party“, “mortgagee” or the like on allfinancing statements and other documents and instruments, whether recorded or otherwise, relatingto the attachment, perfection, priority or enforcement of any security interests, mortgages ordeeds of trust in collateral security intended to secure the payment or performance of any of theObligations, all for the benefit of the Lenders and the Administrative Agent.

          1. shall not be subject to any fiduciary or other implied duties, regardless ofwhether a Default has occurred and is continuing;
          2. shall not have any duty to take any discretionary action or exercise anydiscretionary powers, except discretionary rights and powers expressly contemplated hereby or bythe other Loan Documents that the Administrative Agent is required to exercise as directed inwriting by the Required Lenders (or such other number or percentage of the Lenders as shall beexpressly provided for herein or in the other Loan Documents), provided that the AdministrativeAgent 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 orapplicable law; and
          3. shall not, except as expressly set forth herein and in the other LoanDocuments, have any duty to disclose, and shall not be liable for the failure to disclose, anyinformation relating to any of the Borrowers or any of their respective Affiliates that iscommunicated to or obtained by the Person serving as the Administrative Agent or any of itsAffiliates in any capacity.

        The Administrative Agent shall not be liable for any action taken or not takenby it (i) with the consent or at the request of the Required Lenders (or such other number orpercentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe ingood faith shall be necessary, under the circumstances as provided in 26 and 13.3 or (ii) in theabsence of its own gross negligence or willful misconduct. The Administrative Agent shall bedeemed not to have knowledge of any Default unless and until notice describing such Default isgiven to the Administrative Agent by the Borrowers, a Lender or the Issuing Lender.

        The Administrative Agent shall not be responsible for or have any duty toascertain or inquire into (i) any statement, warranty or representation made in or in connectionwith this Agreement or any other Loan Document, (ii) the contents of any certificate, report orother 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 orconditions 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 anyother agreement, instrument or document or (v) the satisfaction of any condition set forth in 10or elsewhere herein, other than to confirm receipt of items expressly required to be delivered tothe Administrative Agent.

      2. Any resignation by Bank of America as Administrative Agent pursuant to thisSection shall also constitute its resignation as Issuing Lender and Swing Line Lender. Upon theacceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shallsucceed to and become vested with all of the rights, powers, privileges and duties of the retiringIssuing Lender and Swing Line Lender, (b) the retiring Issuing Lender and Swing Line Lender shallbe discharged from all of their respective duties and obligations hereunder or under the other LoanDocuments, and (c) the successor Issuing Lender shall issue letters of credit in substitution forthe Letters of Credit, if any, outstanding at the time of such succession or make other arrangementsatisfactory to the retiring Issuing Lender to effectively assume the obligations of the retiringIssuing Lender with respect to such Letters of Credit.

          1. In case of the pendency of any receivership, insolvency,liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial,administrative or like proceeding or any assignment for the benefit of creditors relative to theBorrowers, the Administrative Agent (irrespective of whether the principal of any Loan,Reimbursement Obligation or Unpaid Reimbursement Obligation shall then be due and payable as hereinexpressed or by declaration or otherwise and irrespective of whether the Administrative Agent shallhave made any demand on the Borrowers) shall be entitled and empowered, by intervention in suchproceeding, under any such assignment or otherwise:
            1. to file and prove a claim for the whole amount of the principal and interestowing and unpaid in respect of the Loans, Reimbursement Obligations or Unpaid ReimbursementObligations and all other Obligations that are owing and unpaid and to file such other documents asmay be necessary or advisable in order to have the claims of the Lenders and the AdministrativeAgent (including any claim for the reasonable compensation, expenses, disbursements and advances ofthe Lenders and the Administrative Agent and their respective agents and counsel and all otheramounts due the Lenders and the Administrative Agent under 5.1 and 16) allowed in suchproceeding or under any such assignment; and
            2. to collect and receive any monies or other property payable or deliverableon any such claims and to distribute the same;

          2. Any custodian, receiver, assignee, trustee, liquidator, sequestrator orother similar official in any such proceeding or under any such assignment is hereby authorized byeach Lender to make such payments to the Administrative Agent and, in the event that theAdministrative Agent shall consent to the making of such payments directly to the Lenders,nevertheless 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, andany other amounts due the Administrative Agent under 5.1 and 16.
          3. Nothing contained herein shall authorize the Administrative Agent to consentto or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustmentor composition affecting the Obligations owed to such Lender or the rights of any Lender or toauthorize the Administrative Agent to vote in respect of the claim of any Lender in any suchproceeding or under any such assignment.

      1. Expenses. Whether or not the transactionscontemplated herein shall be consummated, the Borrowers agree to pay (a) the reasonable costsof producing and reproducing this Credit Agreement, the other Loan Documents and the otheragreements and instruments mentioned herein, (b) any taxes (including any interest andpenalties in respect thereto) payable by the Administrative Agent or any of the Lenders (other thantaxes based upon the Administrative Agent’s or any Lender’s net income) on or with respect to thetransactions contemplated by this Credit Agreement (the Borrowers hereby agreeing to indemnify theAdministrative Agent and each Lender with respect thereto), (c) the reasonable fees, expensesand disbursements of counsel to the Administrative Agent incurred in connection with thepreparation, syndication, administration or interpretation of the Loan Documents and otherinstruments mentioned herein, each closing hereunder, any amendments, modifications, approvals,consents or waivers hereto or hereunder, or the cancellation of any Loan Document upon payment infull in cash of all of the Obligations or pursuant to any terms of such Loan Document providing forsuch cancellation, (d) the reasonable fees, expenses and disbursements of the AdministrativeAgent, the Joint Lead Arrangers, or any of their affiliates incurred by the Administrative Agent,the Joint Lead Arrangers, or such affiliate in connection with the preparation, syndication,administration or interpretation of the Loan Documents and other instruments mentioned herein,including all title insurance premiums and surveyor, engineering and appraisal charges,(e) all reasonable out-of-pocket expenses (including without limitation reasonable attorneys’fees and costs, which attorneys may be employees of any Lender or the Administrative Agent, andreasonable consulting, accounting, appraisal, investment banking and similar professional fees andcharges) incurred by any Lender or the Administrative Agent in connection with (i) theenforcement of or preservation of rights under any of the Loan Documents against the Borrowers orthe administration thereof after the occurrence of a Default or Event of Default and (ii) anylitigation, proceeding or dispute whether arising hereunder or under any of the other LoanDocuments, in any way related to any Lender’s or the Administrative Agent’s relationship with theBorrowers and (f) all reasonable fees, expenses and disbursements of the Administrative Agentincurred in connection with UCC searches and UCC filings.
    14. SURVIVAL OF COVENANTS, ETC.
    15. Unless otherwise stated herein, all covenants, agreements,representations and warranties made herein, in the other Loan Documents or in any documents orother papers delivered by or on behalf of the Borrowers pursuant hereto shall be deemed to havebeen relied upon by the Lenders and the Administrative Agent, notwithstanding any investigationheretofore or hereafter made by any of them, and shall survive the making by the Lenders of theLoans and the issuance, extension or renewal of any Letters of Credit, as herein contemplated, andshall continue in full force and effect so long as any amount due under this Credit Agreement orany Letter of Credit remains outstanding and unpaid or any Lender has any obligation to make anyLoans or issue any Letters of Credit hereunder. All statements contained in any certificate orother paper delivered by or on behalf of the Borrowers pursuant hereto or in connection with thetransactions contemplated hereby shall constitute representations and warranties by the Borrowershereunder.

          1. Assignments. It is understood and agreed that each Lender shallhave the right to assign at any time all or any portion of its Commitment and interests in the riskrelating to any Revolving Credit Loans and outstanding Letters of Credit and/or its Term LoanPercentage of the Term Loan to any Person, provided that: (i) each such assignment shall be in aminimum amount of $1,000,000 (or, if less, in a minimum amount equal to all of such Lender’sCommitment and interests in the risk relating to any Revolving Credit Loans and outstanding Lettersof Credit and/or its Term Loan Percentage of the Term Loan); (ii) the Administrative Agent and, solong as no Event of Default has occurred and is continuing, the Parent, shall have consented tosuch assignment, each such consent not to be unreasonably withheld; provided that the consent ofthe Administrative Agent and the Parent shall not be required, and the minimum assignment amountshall not apply, if the assignment is to a Lender, an Affiliate of a Lender or an Approved Fund solong as such assignment would not result in increased costs to the Borrowers hereunder; and (iii)the proposed assignee and the assigning Lender execute and deliver to the Administrative Agent andthe Borrowers hereunder an Assignment and Acceptance in the form attached hereto as Exhibit D (ineach case, an “Assignment and Acceptance“). Upon theexecution and delivery of such Assignment and Acceptance, (A) to the extent applicable, theBorrowers, if requested, shall issue to the assignee applicable Notes in the amount of suchassignee’s Commitment and/or portion of the Term Loan, dated the effective date of such Assignmentand Acceptance and otherwise completed in substantially the form of the Notes executed anddelivered to the Lenders on the Effective Date and, if applicable, the assignor shall return to theBorrowers its existing Notes marked “cancelled”; and (B) the assignee shall pay aprocessing and recordation fee of $3,500 to the Administrative Agent; provided that only one suchfee shall be payable in the event of simultaneous assignments to or by two or more ApprovedFunds.
          2. Participations. Each Lender shall also have the right to grantparticipations to one or more banks, other financial institutions or other entities whose businessis to purchase and sell loan assets in the normal course (each a “Participant“) inor to all or any part of any rights or Obligations owing to such Lender; provided that (i)any such sale or participation shall not affect the rights and duties of the selling Lenderhereunder to the Borrowers and (ii) the only rights granted to the Participant pursuant to suchparticipation arrangements with respect to waivers, amendments or modifications of the LoanDocuments shall be the rights to approve waivers, amendments or modifications that would requireconsent by all Lenders or of the assigning Lender under 26(a), (b) and (c), as the case may be,and (iii) any Participant shall be entitled to the benefits of 5.4, 5.5, 5.9, 5.11 and 15 asif it were a Lender hereunder, provided, however, that no Borrower shall be required to payany amount which is greater than such amount that otherwise would have been payable to the Lenderwhich sold such participation.
          3. Miscellaneous. Notwithstanding the foregoing, no assignment,participation or accession shall operate to (i) except in accordance with 18(g), increase theTotal Revolving Credit Commitment or amount of the Term Loan hereunder unless consented to by theRequired Lenders or (ii) reduce the Commitment or portion of the Term Loan of any Lender to anamount less than $1,000,000 (or, if less, in a minimum amount equal to all of such Lender’sCommitment and interests in the risk relating to any Revolving Credit Loans and outstanding Lettersof Credit or its Term Loan Percentage of the Term Loan), or (iii) otherwise alter the substantiveterms of this Credit Agreement. Anything contained in this 18 to the contrary notwithstanding,any Lender may at any time grant a security interest in all or any portion of its rights under thisCredit Agreement and the other Loan Documents to secure obligations of such Lender, includingwithout limitation (a) any pledge or assignment to secure obligations to any of the twelve FederalReserve Banks organized under 4 of the Federal Reserve Act, 12 U.S.C. 341 and (b) with respect toany Lender that is a Fund, to any lender or any trustee for, or any other representative of,holders of obligations owed or securities issued by such Fund as security for such obligations orsecurities or any institutional custodian for such Fund or for such lender; provided that nosuch grant shall release such Lender from any of its obligations hereunder, provide any votingrights hereunder to the secured party thereof, substitute any such secured party for such Lender asa party hereto or affect any rights or obligations of the Borrowers or Administrative Agenthereunder. The words “execution,” “signed,” “signature,” and wordsof like import in any Assignment and Assumption shall be deemed to include electronic signatures orthe 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-basedrecordkeeping 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 StateElectronic Signatures and Records Act, or any other similar state laws based on the UniformElectronic Transactions Act.
          4. Register. On the date specified in any Assignment and Acceptance orInstrument of Accession and upon the satisfaction of the other conditions set forth in this 18,such bank or financial institution shall become a party to this Credit Agreement and the other LoanDocuments for all purposes of this Credit Agreement and the other Loan Documents, and itsCommitment and/or portion of the Term Loan shall be as set forth in the register of Lenders (the”Register“) maintained by the Administrative Agent for the recordation of thenames and addresses of the Lenders and the Commitment Percentage of, Term Loan Percentage of, andprincipal amount of the Loans owing to and Letter of Credit participations purchased by, theLenders from time to time. The entries in the Register shall be conclusive, in the absence ofmanifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each personwhose name is recorded in the Register as a Lender hereunder for all purposes of this CreditAgreement. The Register shall be available for inspection by the Borrowers and the Lenders at anyreasonable time and from time to time upon reasonable prior notice.
          5. Assignee or Participant Affiliated with a Borrower. If any assigneeLender is an Affiliate of any Borrower, then any such assignee Lender shall have no right to voteas a Lender hereunder or under any of the other Loan Documents for purposes of granting consents orwaivers or for purposes of agreeing to amendments or other modifications to any of the LoanDocuments or for purposes of making requests to the Administrative Agent pursuant to 13.1 or 13.2, and the determination of the Required Lenders shall for all purposes of this CreditAgreement and the other Loan Documents be made without regard to such assignee Lender’s interest inany of the Loans or Reimbursement Obligations. If any Lender sells a participating interest in anyof the Loans or Reimbursement Obligations to a Participant, and such Participant is a Borrower oran Affiliate of a Borrower, then such transferor Lender shall promptly notify the AdministrativeAgent of the sale of such participation. Such transferor Lender shall have no right to vote as aLender hereunder or under any of the other Loan Documents for purposes of granting consents orwaivers or for purposes of agreeing to amendments or modifications to any of the Loan Documents orfor purposes of making requests to the Administrative Agent pursuant to 13.1 or 13.2 to theextent that such participation is beneficially owned by a Borrower or any Affiliate of a Borrower,and the determination of the Required Lenders shall for all purposes of this Credit Agreement andthe other Loan Documents be made without regard to the interest of such transferor Lender in theLoans or Reimbursement Obligations to the extent of such participation.
          6. Special Purpose Funding Vehicle. Notwithstanding anything to thecontrary contained in this 18, any Lender other than a Lender affiliated with a Borrower (a”Granting Lender“) may grant to a special purpose funding vehicle (an”SPV“) of such Granting Lender, identified as such in writing from time to timedelivered by the Granting Lender to the Administrative Agent and the Borrowers, the option toprovide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise beobligated to make to the Borrowers pursuant to this Credit Agreement, provided that (a)nothing herein shall constitute a commitment to make any Loan by any SPV, (b) the Granting Lender’sobligations under this Credit Agreement shall remain unchanged, (c) the Granting Lender shallretain the sole right to enforce this Credit Agreement and to approve any amendment, modificationor waiver of any provision of this Credit Agreement and (d) if an SPV elects not to exercise suchoption or otherwise fails to provide all or any part of such Loan, the Granting Lender shall beobligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereundershall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan weremade by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for anyexpense reimbursement, indemnity or similar payment obligation under this Credit Agreement (allliability for which shall remain with the Granting Lender). In furtherance of the foregoing, eachparty hereto hereby agrees (which agreement shall survive the termination of this Credit Agreement)that, prior to the date that is one year and one day after the later of (i) the payment in full ofall outstanding senior indebtedness of any SPV and (ii) the Revolving Credit Maturity Date, or, asapplicable, the Term Loan Maturity Date, it will not institute against, or join any other person ininstituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency orliquidation proceedings or similar proceedings under the laws of the United States of America orany State thereof. In addition, notwithstanding anything to the contrary contained in this 18,any SPV may (A) with notice to, but (except as specified below) without the prior written consentof, the Borrowers or the Administrative Agent and without paying any processing fee therefor,assign all or a portion of its interests in any Loans to its Granting Lender or to any financialinstitutions (consented to by the Administrative Agent and, so long as no Default or Event ofDefault has occurred and is continuing, the Borrowers, which consents shall not be unreasonablywithheld or delayed) providing liquidity and/or credit facilities to or for the account of such SPVto fund the Loans made by such SPV or to support the securities (if any) issued by such SPV to fundsuch Loans and (B) disclose on a confidential basis any non-public information relating to itsLoans (other than financial statements referred to in 6.4 or 7.4) to any rating agency,commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement tosuch SPV. In no event shall the Borrowers be obligated to pay to an SPV that has made a Loan anygreater amount than the Borrowers would have been obligated to pay under this Agreement if theGranting Lender had made such Loan. An amendment to this 18(f) without the written consent of anSPV shall be ineffective insofar as it alters the rights and obligations of such SPV.
          7. Acceding Lenders. One or more commercial banks, other financialinstitutions or other Persons (in each case, an “Acceding Lender“) may, at therequest of the Borrowers, and upon the consent of the Administrative Agent (such consent not to beunreasonably withheld), become party to this Credit Agreement as a Lender by entering into anInstrument of Accession in substantially the form of Exhibit F hereto (an”Instrument of Accession“) with the Borrowers and the Administrative Agent andassuming thereunder the rights and obligations of a Lender hereunder, including, withoutlimitation, Commitments to make Revolving Credit Loans and participate in the risk relating toLetters of Credit and/or (as the case may be) the obligation to fund a portion of the Term Loan inamounts to be agreed upon by the Borrowers and the Acceding Lender subject to the terms hereof, andthe Total Revolving Credit Commitment and/or the Term Loan (as the case may be) shall thereupon beincreased (each such increase referred to as a “Post-Closing Facility Increase“)by the amount of such Acceding Lender’s interest; provided that:
            1. no Default or Event of Default has occurred and is continuing at the time ofsuch accession;
            2. in no event shall the sum of (a) the Term Loan plus (b) the TotalRevolving Credit Commitment (after giving effect to all Instruments of Accession) exceed in theaggregate $800,000,000 minus any previously effected permanent reductions of the TotalRevolving Credit Commitment and prepayments of the Term Loan pursuant to 2.2, 4.4 and 4.5,respectively; and
            3. the Borrowers shall indemnify the Lenders and the Administrative Agent forany cost or expense incurred as a consequence of the reallocation of any Eurodollar Loans to anAcceding Lender pursuant to the provisions of 5.9.

      On the effective date specified in any Instrument of Accession, Schedule1 hereto shall be deemed to be amended to reflect (x) the name, address, Commitment, CommitmentPercentage and/or Term Loan Percentage of the Acceding Lender, (y) the amount of the TotalRevolving Credit Commitment and the Term Loan Amount after giving effect to the Post-ClosingFacility Increase, and (z) the changes to the respective Commitments, Commitment Percentages andTerm Loan Percentages of the other Lenders, as applicable, resulting from such Post-ClosingFacility Increase.

    16. All the terms of this Credit Agreement and the other Loan Documents shall bebinding upon and inure to the benefit of and be enforceable by the respective successors andassigns of the parties hereto and thereto; provided that the Borrowers shall not assign ortransfer their rights hereunder without the prior written consent of each Lender.

    17. NOTICES, ETC.
      1. Notices Generally. Except as otherwiseexpressly provided in this Credit Agreement, all notices and other communications made or requiredto be given pursuant to this Credit Agreement or the other Loan Documents shall be in writing andshall be delivered in hand, mailed by United States first-class mail, postage prepaid, or sent bytelex or facsimile and confirmed by letter, addressed as follows:
          1. if to the Borrowers, at Waste Connections, Inc., 35 Iron Point Circle, Suite200, Folsom, California 95630-8589, Attention: Worthing Jackman, Executive Vice-President andChief Financial Officer, telephone number 916-608-8200, telecopy number 916-351-5607;
          2. if to the Administrative Agent or Bank of America, at 100 Federal Street,Boston, Massachusetts 02110, Attention: Maria F. Maia, Managing Director, telephone number 617-434-5751, telecopy number 617-434-2160;

        or such other address for notice as shall have last been furnished in writing tothe Person giving the notice.

        Any such notice or demand shall be deemed to have been duly given or made and tohave become effective (a) if delivered by hand to a responsible officer of the party to which it isdirected, at the time of the receipt thereof by such officer, (b) if sent by registered orcertified first-class mail, postage prepaid, five Business Days after the posting thereof, (c) ifsent by telex or cable, at the time of the dispatch thereof, if in normal business hours in thecountry of receipt, or otherwise at the opening of business on the following Business Day, and (d)if sent by facsimile, when transmitted, confirmation received.

    18. Each of the Administrative Agent, the Lenders and the Issuing Lender agreesto maintain the confidentiality of the Information (as defined below), except that Information maybe disclosed (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 towhom such disclosure is made will be informed of the confidential nature of such Information andinstructed to keep such Information confidential), (b) to the extent requested by any regulatoryauthority purporting to have jurisdiction over it (including any self-regulatory authority, such asthe National Association of Insurance Commissioners), (c) to the extent required by applicable lawsor regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) inconnection with the exercise of any remedies hereunder or under any other Loan Document or anyaction or proceeding relating to this Credit Agreement or any other Loan Document or theenforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisionssubstantially the same as those of this Section, to (i) any assignee of or Participant in, or anyprospective assignee of or Participant in, any of its rights or obligations under this CreditAgreement or (ii) any actual or prospective counterparty (or its advisors) to any swap orderivative transaction relating to a Borrower and its obligations, (g) with the consent of theBorrowers or (h) to the extent such Information (x) becomes publicly available other than as aresult of a breach of this Section or (y) becomes available to the Administrative Agent, anyLender, the Issuing Lender or any of their respective Affiliates on a nonconfidential basis from asource other than the Borrowers.

    19. The rights and remedies herein expressed are cumulative and not exclusive ofany other rights which the Lenders or Administrative Agent would otherwise have. The captions inthis Credit Agreement are for convenience of reference only and shall not define or limit theprovisions hereof. This Credit Agreement and any amendment hereof may be executed in severalcounterparts and by each party on a separate counterpart, each of which when so executed anddelivered shall be an original, but all of which together shall constitute one instrument. Inproving this Credit Agreement it shall not be necessary to produce or account for more than onesuch counterpart signed by the party against whom enforcement is sought. Delivery by facsimile byany of the parties hereto of an executed counterpart hereof or of any Loan Document or of anyamendment or waiver hereto or thereto shall be as effective as an original executed counterparthereof or thereof or of such amendment or waiver and shall be considered a representation that anoriginal executed counterpart hereof or thereof or such amendment or waiver, as the case may be,will be delivered.

    20. ENTIRE AGREEMENT, ETC.
    21. The Loan Documents and any other documents executed in connectionherewith or therewith express the entire understanding of the parties with respect to thetransactions contemplated hereby. Neither this Credit Agreement nor any term hereof may bechanged, waived, discharged or terminated, except as provided in 26. No waiver shall extend to oraffect any obligation not expressly waived or impair any right consequent thereon. No course ofdealing or omission on the part of the Administrative Agent or any Lender in exercising any rightshall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand uponthe Borrowers shall entitle the Borrowers to other or further notice or demand in similar or othercircumstances.

    22. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECTTO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT AGREEMENT, THENOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THEPERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBYWAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDINGSENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR INADDITION TO, ACTUAL DAMAGES. THE BORROWERS (a) CERTIFY THAT NO REPRESENTATIVE, ADMINISTRATIVEAGENT OR ATTORNEY OF ANY LENDER OR THE ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OROTHERWISE, THAT SUCH LENDER OR THE ADMINISTRATIVE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEKTO ENFORCE THE FOREGOING WAIVERS AND (b) ACKNOWLEDGE THAT THE ADMINISTRATIVE AGENT AND THELENDERS HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICHTHEY ARE A PARTY BECAUSE OF, AMONG OTHER THINGS, THE BORROWERS’ WAIVERS AND CERTIFICATIONSCONTAINED HEREIN.

    23. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN,EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALLFOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDITAGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORKOR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTAND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESSSPECIFIED IN 20. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTERHAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN ANINCONVENIENT COURT.

    24. Consents, Amendments, Waivers, Etc.
    25. Except as set forth in 4.7 or in connection with a Post-ClosingFacility Increase made in accordance with 18(g) and as set forth in subsections (a) and (b) below,any consent or approval required or permitted by this Credit Agreement to be given by the Lendersmay be given, and any term of this Credit Agreement, the other Loan Documents or any otherinstrument related hereto or mentioned herein may be amended, and the performance or observance bythe Borrowers of any terms of this Credit Agreement, the other Loan Documents or such otherinstrument or the continuance of any Default or Event of Default may be waived (either generally orin a particular instance and either retroactively or prospectively) with, but only with, thewritten consent of the Borrowers and the written consent of the Required Lenders. Notwithstandingthe foregoing, no amendment, modification or waiver shall be effective:

          1. without the written consent of the Borrowers and each Lender directlyaffected thereby:
            1. reduce or forgive the principal amount of any Revolving Credit Loans or TermLoan, as the case may be, or Reimbursement Obligations, or reduce the rate of interest on theRevolving Credit Loans or applicable Term Loan, as the case may be, or the amount of the CommitmentFee or Letter of Credit Fees;
            2. increase the amount of such Revolving Lender’s Commitment or such TermLender’s Term Loan Amount, or extend the expiration date of such Revolving CreditCommitment;
            3. postpone or extend the Revolving Credit Loan Maturity Date or the Term LoanMaturity Date or any other regularly scheduled dates for payments of principal of, or interest on,the Loans or Reimbursement Obligations or any Fees or other amounts payable to such Lender (itbeing understood that any vote to rescind any acceleration made pursuant to 13.1 of amounts owingwith respect to the Loans and other Obligations shall require only the approval of the RequiredLenders);
            4. other than pursuant to a transaction permitted by the terms of this CreditAgreement, release all or substantially all of the Collateral (excluding, if any Borrower becomes adebtor under the federal Bankruptcy Code, the release of “cash collateral“, asdefined in Section 363(a) of the federal Bankruptcy Code pursuant to a cash collateral stipulationwith the debtor approved by the Required Lenders);
            5. amend or modify the provisions of 4.4 (Mandatory Prepayments of the TermLoan), 5.13 (Concerning Joint and Several Liability of the Borrowers) or 13.4 (Distribution ofCollateral Proceeds);

          2. without the written consent of all of the Lenders, amend or waive this 26or the definition of “Required Lenders”;
          3. without the written consent of the Administrative Agent, amend or waive 2.10 or 15, the amount or time of payment of any fees payable for the Administrative Agent’saccount or any Letter of Credit Fees payable for the Administrative Agent’s account or any otherprovision applicable to the Administrative Agent.

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

    26. Each of the Borrowers hereby irrevocably appoints the Parent as suchBorrower’s representative and agent for all purposes under this Credit Agreement and authorizes theParent, on behalf of each such Borrower and in each such Borrower’s name to give and receive allnotices and documents, certificates and instruments to be given or received by the Borrowers or anyof them in connection with this Credit Agreement and the other Loan Documents, including receipt ofservice of legal process in connection with any suit or proceeding arising under, or in connectionwith the transactions contemplated by this Credit Agreement, delivery of Loan and Letter of CreditRequests, Conversion Requests, Compliance Certificates and requests for waivers and amendments andto acknowledge or consent to any amendments, waivers or assignments.

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

Each Lender that is subject to the Act (as hereinafter defined) and theAdministrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowersthat pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed intolaw October 26, 2001)) (the “Act“), it is required to obtain, verify and record informationthat identifies the Borrowers, which information includes the name and address of each Borrower andother information that will allow such Lender or the Administrative Agent, as applicable, toidentify such Borrower in accordance with the Act.

 

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

THE BORROWERS

:

WASTE CONNECTIONS, INC.

AMERICAN DISPOSAL COMPANY, INC.

AMERICAN SANITARY SERVICE, INC.

ARROW SANITARY SERVICE, INC.

BANDON DISPOSAL & RECYCLING, INC.

BITUMINOUS RESOURCES, INC.

BUTLER COUNTY LANDFILL, INC.

CAMINO REAL ENVIRONMENTAL CENTER, INC.

CITY SANITATION, INC.

COLD CANYON LAND FILL, INC.

COMMUNITY REFUSE DISPOSAL INC.

CONTRACTORS WASTE SERVICES, INC.

CORRAL DE PIEDRA LAND COMPANY

CURRY TRANSFER & RECYCLING, INC.

D. M. DISPOSAL CO., INC.

DENVER REGIONAL LANDFILL, INC.

EMPIRE DISPOSAL, INC.

ENVIRONMENTAL TRUST COMPANY

ETC OF GEORGIA, INC.

FINNEY COUNTY LANDFILL, INC.

G & P DEVELOPMENT, INC.

ISLAND DISPOSAL, INC.

J BAR J LAND, INC.

LEALCO, INC.

LES’ COUNTY SANITARY, INC.

LES’ SANITARY SERVICE, INC.

MADERA DISPOSAL SYSTEMS, INC.

MAMMOTH DISPOSAL COMPANY

MANAGEMENT ENVIRONMENTAL NATIONAL, INC.

MASON COUNTY GARBAGE CO., INC.

MILLENNIUM WASTE INCORPORATED

MISSION COUNTRY DISPOSAL

MORRO BAY GARBAGE SERVICE

MURREY’S DISPOSAL COMPANY, INC.

NEBRASKA ECOLOGY SYSTEMS, INC.

NOBLES COUNTY LANDFILL, INC.

NORTH BEND SANITATION SERVICE, INC.

By:______________________________________

Name:

Title:

NORTHERN PLAINS DISPOSAL, INC.

OKLAHOMA CITY WASTE DISPOSAL, INC.

OKLAHOMA LANDFILL HOLDINGS, INC.

OSAGE LANDFILL, INC.

RED CARPET LANDFILL, INC.

RH FINANCIAL CORPORATION

RHINO SOLID WASTE, INC.

SAN LUIS GARBAGE COMPANY

SCOTT SOLID WASTE DISPOSAL COMPANY

SEDALIA LAND COMPANY

SOUTH COUNTY SANITARY SERVICE, INC.

SOUTHERN PLAINS DISPOSAL, INC.

TACOMA RECYCLING COMPANY, INC.

TENNESSEE WASTE MOVERS, INC.

WASCO COUNTY LANDFILL, INC.

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. (f/k/a Amador Disposal Service, Inc.)

WASTE CONNECTIONS OF COLORADO, INC.

WASTE CONNECTIONS OF ILLINOIS, INC.

WASTE CONNECTIONS OF IOWA, INC. (f/k/a Whaley Waste Systems Inc.)

WASTE CONNECTIONS OF KANSAS, INC.

WASTE CONNECTIONS OF KENTUCKY, INC.

WASTE CONNECTIONS OF MINNESOTA, INC. (f/k/a Ritter’s Sanitary Service, Inc.)

WASTE CONNECTIONS OF MISSISSIPPI, INC. (f/k/a Liberty Waste Services ofMississippi Holdings, Inc.)

WASTE CONNECTIONS OF MISSOURI, INC.

WASTE CONNECTIONS OF MONTANA, INC.

WASTE CONNECTIONS OF NEBRASKA, INC.

WASTE CONNECTIONS OF NEW MEXICO, INC.

WASTE CONNECTIONS OF OKLAHOMA, INC. (f/k/a B & B Sanitation, Inc.)

WASTE CONNECTIONS OF OREGON, INC. (f/k/a Sweet Home Sanitation Service,Inc.)

WASTE CONNECTIONS OF SOUTH DAKOTA, INC.(f/k/a Novak Enterprises, Inc.)

WASTE CONNECTIONS OF TENNESSEE, INC. (fka Liberty Waste Services of TennesseeHoldings, Inc.)

WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC. (f/k/a/ Kingsburg DisposalService, inc.)

WASTE CONNECTIONS OF UTAH, INC.

 

By:______________________________________

Name:

Title:

WASTE CONNECTIONS OF WASHINGTON, INC.

WASTE CONNECTIONS OF WYOMING, INC.

WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.

WASTE SERVICES OF N.E. MISSISSIPPI, INC.

WCI OF GEORGIA, INC.

WEST COAST RECYCLING AND TRANSFER, INC.

By:______________________________________

Name:

Title:

COLUMBIA RESOURCE CO., L.P.

FINLEY-BUTTES LIMITED PARTNERSHIP

By: Management Environmental National, Inc.,

its General Partner

By:______________________________________

Name:

Title:

EL PASO DISPOSAL, LP

By: Waste Connections of Texas, LLC,

its General Partner

By: Waste Connections Management Services, Inc.,

its Manager

By:______________________________________

Name:

Title:

 

SANTEK ENVIRONMENTAL OF MISSISSIPPI, L.L.C.

WASTE SERVICES OF MISSISSIPPI, LLC

By: Waste Connections, Inc.,

its Managing Member

By:______________________________________

Name:

Title:

WASTE CONNECTIONS OF TEXAS, LLC

By: Waste Connections Management Services, Inc.,

its Manager

By:______________________________________

Name:

Title:

SCOTT WASTE SERVICES, LLC

By: Waste Connections Inc.,

its Manager

By:______________________________________

Name:

Title:

THE LENDERS:

BANK OF AMERICA, N.A,

individually and as Administrative Agent

By:___________________________________

Timothy M. Laurion, Managing Director

DEUTSCHE BANK TRUST COMPANY AMERICAS,

individually and as Syndication Agent

By:______________________________________

Name:

Title:

WELLS FARGO BANK, N.A.

By:______________________________________

Name:

Title:

CREDIT LYONNAIS NEW YORK BRANCH

By:______________________________________

Name:

Title:

By:______________________________________

Name:

Title:

LASALLE BANK NATIONAL ASSOCIATION

By:______________________________________

Name:

Title:

CITICORP North America, Inc.

By:______________________________________

Name:

Title:

FIRST BANK D/B/A fIRST BANK & TRUST

By:______________________________________

Name:

Title:

GUARANTY BANK

By:______________________________________

Name:

Title:

JPMORGAN CHASE

By:______________________________________

Name:

Title:

U.S. BANK NATIONAL ASSOCIATION

By:______________________________________

Name:

Title:

BANK OF THE WEST

By:______________________________________

Name:

Title:

BANK OF SCOTLAND

By:______________________________________

Name:

Title:

PEOPLE’S BANK

By:______________________________________

Name:

Title:

WASHINGTON MUTUAL BANK

By:______________________________________

Name:

Title: