Exhibit 99.1
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CREDIT AGREEMENT dated as of
July 21, 1999,
as amended and restated as of
November 20, 2003
as further amended and restated as of
March 30, 2004
among
ALLIED WASTE INDUSTRIES, INC.,
ALLIED WASTE NORTH AMERICA, INC.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent,
and
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.
as
Joint Lead Arrangers and Joint Bookrunners
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EXECUTION COPY
THIRD AMENDMENT AND RESTATEMENT dated as of
March 30, 2004 (this "Amendment"), to the CREDIT
AGREEMENT dated as of July 21, 1999, as amended and
restated as of November 20, 2003 (as amended,
supplemented or otherwise modified from time to time,
the "Credit Agreement"), among ALLIED WASTE
INDUSTRIES, INC. ("Allied Waste"), ALLIED WASTE NORTH
AMERICA, INC. (the "Borrower"), the lenders party
thereto (the "Lenders"), and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the
"Administrative Agent") and collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Allied Waste and the Borrower have requested that the
Credit Agreement be amended and restated to provide for a new tranche of Term
Loans thereunder in an aggregate amount of $150,000,000 or such amount as may be
subsequently specified by the Borrower in an aggregate amount not to exceed
$175,000,000 (as defined herein, the "Tranche D Term Loans") and that such
Tranche D Term Loans be provided by existing Lenders and other banks or
financial institutions that become Lenders under the Credit Agreement (each such
Person providing Tranche D Term Loans being referred to herein as a "Tranche D
Lender"). In addition, Allied Waste and the Borrower intend to designate the RMI
Subsidiaries (as defined below) as Unrestricted Subsidiaries pursuant to Section
6.16 of the Credit Agreement.
B. Allied Waste and the Borrower have also requested that, in
connection with such amendment and restatement, the Lenders agree to modify
certain provisions of the Credit Agreement, among other things, to permit
certain refinancing transactions, affiliate transactions and intercompany
investments.
C. The Required Lenders are willing to effect such amendment
and restatement and the Tranche D Lenders are willing to grant the extension of
credit contemplated hereby, in each case on the terms and subject to the
conditions of this Amendment.
D. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement, as amended and
restated hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
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SECTION 1. Amendment and Restatement of the Credit Agreement.
The Credit Agreement is hereby amended and restated, effective as of the
Amendment Effective Date (as defined below), in the form of the Credit Agreement
immediately prior to the Amendment Effective Date with the following changes and
revisions:
(a) Amendment of Section 1.01. Section 1.01 is hereby revised
by:
(i) Inserting the following definitions in the appropriate
alphabetical order therein:
"Assumed RMI Liabilities" means the insurance,
capping, closure, post-closure, environmental and related
liabilities, including clean-up and remediation liabilities,
that were assumed by the RMI Subsidiaries from the Borrower
and Restricted Subsidiaries prior to the Third Amendment
Effective Date.
"RMI Funding Operations" means the loan or advance of
funds by the Borrower or other Restricted Subsidiaries to the
RMI Subsidiaries (or by the RMI Subsidiaries to the Borrower
or other Restricted Subsidiaries) at such times and in such
amounts as are necessary to provide for the payment by the RMI
Subsidiaries of Assumed RMI Liabilities when and as they
become due and payable.
"RMI Intercompany Notes" means the promissory notes
of the Borrower and/or other Restricted Subsidiaries held by
the RMI Subsidiaries on the Third Amendment Effective Date.
"RMI Subsidiaries" means collectively, (i) BFI Energy
Systems of Boston, Inc., (ii) BFI Services Group, Inc., (iii)
BFI Trans River (LP), Inc., (iv) BFI Energy Systems of
Plymouth, Inc., (v) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Europe, Inc.,
(vi) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Asia Pacific, Inc. and (vii)
Consolidated Processing, Inc.
"Third Amendment" means the Third Amendment and
Restatement, dated as of March 30, 2004, to this Agreement.
"Third Amendment Effective Date" means the date on
which the Third Amendment became effective in accordance with
Section 4 thereof.
"Tranche D Effective Date" means the date on which
the Tranche D Provisions, as such term is defined in the Third
Amendment, became effective in accordance with Section 4
thereof.
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"Tranche D Term Loan" means a Loan made on the
Tranche D Effective Date pursuant to Section 3 of the Third
Amendment. Tranche D Term Loans are not Incremental Term Loans
hereunder."
(ii) revising the definitions of the terms set forth below to
read as follows:
"Lenders" means the Persons listed on Schedule 2.01,
on Schedule A to the Second Amendment and, effective as of the
Tranche D Effective Date, on Schedule A to the Third Amendment
(as appended to the Third Amendment on the Tranche D Effective
Date) and any other Person that shall have become a party
hereto pursuant to an Assignment and Acceptance, other than
any such Person that ceases to be a party hereto pursuant to
an Assignment and Acceptance or otherwise ceases to have any
Loans or Commitments hereunder. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lenders
and the Tranche A Lenders.
"Loans" means the loans made by the Lenders to the
Borrower pursuant to this Agreement, including the Tranche B
Term Loans and Tranche C Term Loans made pursuant to the
Second Amendment and the Tranche D Term Loans made on the
Tranche D Effective Date pursuant to the Third Amendment.
"Permitted Public Notes Refinancing Transaction"
means the issuance and sale for cash from time to time on or
after August 1, 2003, of Qualifying Senior Secured
Indebtedness and/or Qualifying Senior Unsecured Indebtedness
pursuant to and subject to the limitations set forth in
Section 6.01(a)(xxiii), the Net Available Proceeds of which
are intended by the Borrower to be applied to the Optional
Repurchase of up to an equal principal amount of Refinanceable
Public Notes; provided, however, that (i) a Financial Officer
provides a written notice to the Administrative Agent, not
later than the later of the Third Amendment Effective Date and
the date two Business Days following the date on
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which any such Qualifying Senior Secured Indebtedness or
Qualifying Senior Unsecured Indebtedness, as the case may be,
is issued, specifying in reasonable detail the material
economic terms on which such Optional Repurchase with the Net
Available Proceeds thereof is proposed to be effected and
certifying the Borrower's intention to utilize the Net
Available Proceeds of such issuance to consummate such
Optional Repurchase not more than 150 days after the date on
which such Qualifying Senior Secured Indebtedness or
Qualifying Senior Unsecured Indebtedness, as the case may be,
is issued and (ii) the full amount of the Net Available
Proceeds from the issuance of such Qualifying Senior Secured
Indebtedness and Qualifying Senior Unsecured Indebtedness, as
the case may be (other than amounts theretofore applied to the
Optional Repurchase of Refinanceable Public Notes) is, not
later than the date that is 150 days after the date of the
issuance thereof, applied to the prepayment of Term Loans
pursuant to Section 2.11.
"Term Loan" means a Tranche B Term Loan, a Tranche C
Term Loan or a Tranche D Term Loan (or, as the context may
require, any term loan made hereunder prior to the Second
Amendment Effective Date).
"Term Loan Commitment" means, with respect to each
Term Lender, the commitment of such Term Lender to make
Tranche B Term Loans or Tranche C Term Loans hereunder
pursuant to Section 3 of the Second Amendment on the Second
Amendment Effective Date or to make Tranche D Term Loans
pursuant to Section 3 of the Third Amendment on the Tranche D
Effective Date. The amount of each Term Lender's Term Loan
Commitment to make Tranche B Term Loans and Tranche C Term
Loans is set forth on Schedule A to the Second Amendment and
to make Tranche D Term Loans is set forth on Schedule A to the
Third Amendment (or, in either case, in the Assignment and
Acceptance pursuant to which such Term Lender assumed its Term
Loan Commitment). The aggregate amount of the Term Loan
Commitments to make Tranche B Term Loans and Tranche C Term
Loans on the Second Amendment Effective Date was
$1,185,000,000 and $250,000,000, respectively, and the
aggregate amount of Term Loan Commitments to make Tranche D
Term Loans on the Tranche D Effective Date was $150,000,000 or
such amount as will be subsequently specified by the Borrower
in an aggregate amount not to exceed $175,000,000."
(iii) revising the definitions of the terms set forth below as
follows:
(A) The first paragraph of "Applicable Margin" is
revised to read as follows:
"Applicable Margin" means, for any day (a) with
respect to any ABR Term Loan (except Tranche D Term Loans) (i)
1.75% per annum at such times when the then current Leverage
Ratio is greater
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than or equal to 4.25 to 1.00 and (ii) 1.50% per annum at such
times when the then current Leverage Ratio is less than 4.25
to 1.00, (b) with respect to any Tranche D Term Loan that is
an Loan, (i) 1.50% per annum at such times when the then
current Leverage Ratio is greater than or equal to 4.25 to
1.00 and (ii) 1.25% per annum at such times when the then
current Leverage Ratio is less than 4.25 to 1.00, (c) with
respect to any Eurodollar Term Loan (except Tranche D Term
Loans) or Tranche A Participation Fee, (i) 2.75% per annum at
such times when the then current Leverage Ratio is greater
than or equal to 4.25 to 1.00 and (ii) 2.50% per annum at such
times when the then current Leverage Ratio is less than 4.25
to 1.00, (d) with respect to any Tranche D Term Loan that is a
Eurodollar Loan, (i) 2.50% per annum at such times when the
then current Leverage Ratio is greater than or equal to 4.25
to 1.00 and (ii) 2.25% per annum at such times when the then
current Leverage Ratio is less than 4.25 to 1.00, and (e) with
respect to any ABR Revolving Loan or Eurodollar Revolving
Loan, the applicable interest rate margin per annum set forth
below under the caption "ABR Spread" or "Eurodollar Spread",
as the case may be, based upon the Leverage Ratio as of the
most recent determination date; provided that the ABR Spread
relating to Swingline Loans, whenever the Leverage Ratio is in
Category 2, 3, 4 or 5, will be .25% lower than the ABR Spread
reflected in the table below:"
(B) "Consolidated EBITDA" is revised by adding ", the
RMI Subsidiaries" after the term "Restricted Subsidiaries",
(C) "Consolidated Interest Expense" is revised by
adding ", the RMI Subsidiaries" after each instance of the
term "Restricted Subsidiaries" and by adding ", any RMI
Subsidiary after each instance of the term "any Restricted
Subsidiary",
(D) "Consolidated Operating Income" is revised by
adding ", the RMI Subsidiaries" after the term "Restricted
Subsidiaries", and
(E) "Excess Cash Flow" is revised by adding ", the
RMI Subsidiaries" after the first instance of the term
"Restricted Subsidiaries" and in clause (v) replacing the word
"and" with a comma after the word "Allied Waste" and by adding
the term "and the RMI Subsidiaries" after the term "Restricted
Subsidiaries".
(b) Amendment of Section 2.01. Section 2.01 is revised by
changing clause (a) of the first sentence thereof to read as follows: "(a) each
Term Lender has, pursuant to the Second Amendment and/or the Third Amendment,
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agreed to make Term Loans to the Borrower on the Second Amendment Effective Date
and/or the Tranche D Effective Date in an aggregate principal amount not
exceeding its Term Loan Commitments with respect to Term Loans to be made on
such dates and".
(c) Amendment of Section 2.08. Section 2.08(a) is revised by
changing clause (i) of the first sentence thereof to read as follows: "(i) the
Term Loan Commitments shall terminate at 5:00 p.m., New York City time, (x) on
the Second Amendment Effective Date, in the case of Tranche B Term Loan
Commitments and the Tranche C Term Loan Commitments and (y) on the Tranche D
Effective Date, in the case of Tranche D Term Loan Commitments, and".
(d) Amendment of Section 2.10. Section 2.10(a) is revised by
changing the first sentence thereof to read as follows:
"The Borrower shall repay Term Borrowings in an aggregate principal
amount of $20,000,000 on September 30 of each year, beginning on
September 30, 2004."
(e) Amendment of Section 2.11. Section 2.11 is revised by:
(i) by adding the following text at the end of clause (i) in
paragraph (c): "provided, further, however, that the Net Available
Proceeds arising from sales of Securitization Assets in additional
Securitizations effected after the Third Amendment Effective Date
involving Third Party Securities not in excess of $125,000,000 may be
applied to Optional Repurchases of Refinanceable Public Notes provided
that (x) the amount of such Net Available Proceeds so utilized plus the
amount of Qualifying Senior Secured Indebtedness issued after the Third
Amendment Effective Date pursuant to Section 6.01(a)(xxiii) shall not
exceed $500,000,000 less the amount of the Tranche D Term Loans and (y)
100% of such Net Available Proceeds arising from the sale of
Securitization Assets which have not been applied to such Optional
Repurchases by the 150th day following the date of their receipt shall
be applied, not later than such 150th day, to the prepayment of Term
Loans";
(ii) in clause (ii) of paragraph (c) thereof, replacing the
reference to "$825,000,000" with a reference to "$1,425,000,000"; and
(iii) by adding a new sentence at the end of paragraph (f) to
read as follows:
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"In the event that 100% of the proceeds of
the Tranche D Term Loans, less the amount of
out-of-pocket costs and expenses incurred in
connection with the Third Amendment and attributable
to obtaining the Tranche D Term Loans, have not been
used by the 150th day following the Tranche D
Effective Date to effect Optional Repurchases of
Refinanceable Indebtedness, then any such net
proceeds not so applied shall be applied on such
150th day to prepay Term Loans hereunder."
(f) Amendment of Section 2.12. Section 2.12(d) is revised by
inserting "(including Tranche D Term Loans)" immediately after the first
reference to "Term Loans" therein.
(g) Amendment of Section 5.04. Section 5.04 is amended by
adding the following paragraph at the end thereof:
"Notwithstanding anything to the contrary in
paragraphs (a) or (b) of this Section, the Borrower
may satisfy its obligations to deliver financial
statements thereunder by delivering consolidated
financial statements including the results of
operations, assets and liabilities of consolidated
Unrestricted Subsidiaries that are Insurance
Subsidiaries or RMI Subsidiaries."
(h) Amendment of Section 5.16. Section 5.16 is revised by
replacing all text following the first sentence thereof with the following:
"The proceeds of the Revolving Loans and Swingline Loans made after the
Restatement Effective Date will be used only for Optional Repurchases
of the 7.88% Notes, Permitted Acquisitions, Investments permitted by
Section 6.05, the payment of premiums, accrued interest, and fees and
expenses in connection with any Permitted Refinancing Transaction or
Permitted Public Notes Refinancing Transaction allowed hereunder or any
Optional Repurchase of Refinanceable Indebtedness with the proceeds of
Original Tranche C Term Loans or of Tranche D Term Loans permitted
hereby, and for general corporate purposes, including working capital.
The proceeds of the Original Tranche C Term Loans and of Tranche D Term
Loans will be used solely to effect Optional Repurchases of
Refinanceable Indebtedness or to prepay Term Loans as required by
Section 2.11(f). The proceeds of Original Tranche C Term Loans or
Tranche D Term Loans or of other issuances of Indebtedness which are
required or permitted by this Agreement to be applied to the
refinancing or repayment of other Indebtedness may be used to
temporarily prepay Revolving Loans pending such application and may be
subsequently reborrowed as Revolving Loans (subject to satisfaction of
applicable conditions) and applied to such
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refinancing or repayment, and any such reborrowing and application will
be deemed a use of such original proceeds for purposes hereof. Letters
of Credit will be used solely to support payment obligations incurred
in the ordinary course of business. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that
entails a violation of Regulations U or X of the Board."
(i) Amendment of Section 6.01. Section 6.01(a) is revised by:
(i) in clause (viii), replacing the reference to
"$250,000,000" with a reference to "$375,000,000"; and
(ii) changing clause (xxiii) to read as follows:
"(xxiii) Qualifying Senior Secured Indebtedness (in addition
to that permitted pursuant to clauses (xiii) and (xv) above) and
Qualifying Senior Unsecured Indebtedness (x) issued after August 1,
2003, and on or prior to March 30, 2004 in Permitted Public Notes
Refinancing Transactions or (y) issued after March 30, 2004 in
Permitted Public Notes Refinancing Transactions in an aggregate
principal amount for this clause (y) not in excess of $1,100,000,000,
provided that the aggregate principal amount of Qualifying Senior
Secured Indebtedness issued pursuant to this clause (y) shall not
exceed $500,000,000 less amount of Tranche D Loans minus the amount of
Net Available Proceeds from Securitizations utilized to effect Optional
Repurchases in accordance with Section 6.06(g) and Section 2.11(c) and,
provided further, that, in the case of any issuance of Qualifying
Senior Secured Indebtedness or Qualifying Senior Unsecured Indebtedness
issued pursuant to this clause (xxiii), the Net Available Proceeds
thereof not applied to the repurchase of Refinanceable Public Notes
shall be applied to the prepayment of Term Loans as required by Section
2.11."
(j) Amendment of Section 6.05. Section 6.05 is revised by:
(i) inserting "and (r)" in the parenthetical in the last
sentence of clause (a) after the words "clause (h)",
(ii) deleting the word "and" at the end of clause (p),
replacing the period with "; and" in clause (q), and adding a new
clause (r) immediately after clause (q) to read as follows:
"(r) investments by the Borrower and Restricted
Subsidiaries in the RMI Subsidiaries consisting of the RMI
Intercompany Notes, loans and advances pursuant to the RMI
Funding Operations and the
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purchase of existing minority equity interest in the RMI
Subsidiaries pursuant to put and call arrangements existing on
the Third Amendment Effective Date (which put and call
arrangements may be extended as may be determined by the
Borrower in connection with settlement negotiations in respect
thereof)."
(k) Amendment of Section 6.06. Section 6.06(g) is revised by
adding at the end of clause (iv) the following: ", except to the extent applied
to Optional Repurchases to the extent permitted by Section 2.11(c)".
(l) Amendment of Section 6.09. Section 6.09(c) is revised by
replacing the word "or" at the end of clause (vii) with a comma, and inserting
the following immediately after the reference to "Section 6.08" in clause
(viii): "or (ix) (A) RMI Funding Operations, Assumed RMI Liabilities and RMI
Intercompany Notes, (B) management agreements pursuant to which RMI Subsidiaries
manage liabilities of the Borrower or other Restricted Subsidiaries, corporate
services arrangements for the benefit of the RMI Subsidiaries and other
transactions reasonably related or incidental to the foregoing transactions
referred to in this clause (ix) in each case in the ordinary course and in a
manner consistent with past practices and (C) management agreements entered into
after the Third Amendment Effective Date pursuant to which RMI Subsidiaries
manage liabilities of the Borrower or other Restricted Subsidiaries on a fee for
services basis."
(m) Amendment of Section 6.11. Section 6.11(a) is revised by:
(i) deleting the proviso in clause (v) thereof; and
(ii) adding the following clauses (s) and (t) immediately
prior to clause (u):
"(s) Optional Repurchases of the Borrower's 7.88%
Notes with the proceeds of the Revolving Loans,";
"(t) Optional Repurchases of Refinanceable
Indebtedness with Net Available Proceeds received from the
issuance and sale of common stock of Allied Waste after March
30, 2004, provided that such Optional Repurchases are effected
not later than 150 days after receipt of such Net Available
Proceeds,";
(n) Amendment of Section 6.16. Section 6.16 is revised by
adding the following proviso at the end of the last sentence thereof:
"; provided, however, that any RMI Subsidiary may be
redesignated as a Restricted Subsidiary if such RMI Subsidiary is a
wholly owned subsidiary of the Borrower and the Borrower delivers to
the Agent written
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notice of such redesignation and a certificate of a Financial Officer
stating that no Event of Default has occurred and is continuing after
giving effect to such redesignation."
(o) Exhibit A of the Credit Agreement is revised by adding a
reference to "Tranche D Term Loans:" on the second page thereof after the
existing references to "Tranche B Term Loans:" and "Tranche C Term Loans:".
SECTION 2. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, each of the Borrower and Allied
Waste represents and warrants to each of the Lenders, the Administrative Agent
and the Collateral Agent that, as of the Amendment Effective Date and the
Tranche D Effective Date:
(a) This Amendment has been duly authorized, executed and
delivered by it and this Amendment and the Credit Agreement as amended and
restated hereby, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) The representations and warranties set forth in Article
III of the Credit Agreement are, after giving effect to this Amendment (and, in
the case of the representations and warranties made as of the Tranche D
Effective Date, the making of the Tranche D Term Loans), true and correct in all
material respects on and as of the Amendment Effective Date and the Tranche D
Effective Date, as applicable, with the same effect as though made on and as of
the Amendment Effective Date and the Tranche D Effective Date, as applicable,
except to the extent such representations and warranties expressly relate to an
earlier date (in which case they were true and correct in all material respects
as of such earlier date).
(c) No Default or Event of Default has occurred and is
continuing.
SECTION 3. Tranche D Term Loans. (a) Subject to the terms and
conditions set forth herein, each Tranche D Term Lender agrees to make Tranche D
Term Loans to the Borrower on the Tranche D Effective Date in a principal amount
equal to such Lender's Tranche D Term Loan Commitment set forth on Schedule A to
this Amendment; provided that such commitments of the Tranche D Term Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Tranche D Term Loans.
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(b) The obligations of each Tranche D Term Lender to make
Tranche D Term Loans on the Tranche D Effective Date is subject to the
satisfaction of the following conditions:
(i) The conditions set forth in Section 4.02 of the Credit
Agreement shall be satisfied on and as of the Tranche D Effective Date,
and the Tranche D Term Lenders shall have received a certificate of a
Financial Officer, dated the Tranche D Effective Date, to such effect;
(ii) The Administrative Agent shall have received favorable
legal opinions of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Loan
Parties, and (B) ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Allied Waste, in
each case addressed to the Tranche D Lenders and dated the Tranche D
Effective Date, covering such matters relating to the Tranche D Term
Loans, this Amendment, the Credit Agreement as amended and restated
hereby, and the other Loan Documents and security interests thereunder
as the Administrative Agent may reasonably request, which opinions
shall be reasonably satisfactory to the Administrative Agent; and
(iii) The conditions to effectiveness of this Amendment set
forth in Section 4 hereof shall have been satisfied.
SECTION 4. Effectiveness. This Amendment and the amendment and
restatement of the Credit Agreement effected hereby shall become effective as of
the first date (the "Amendment Effective Date") on which the following
conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have
received duly executed counterparts hereof that, when taken together, bear the
signatures of (i) Allied Waste, (ii) the Borrower, (iii) the Required Lenders
and (iv) the Administrative Agent;
(b) The Administrative Agent shall have received for each of
Allied Waste, the Borrower and each other Material Loan Party, a certificate of
the Secretary or an Assistant Secretary of such Material Loan Party, dated the
Amendment Effective Date and certifying that attached thereto is a true and
complete copy of resolutions (or consent by members or partners, where
applicable, to the extent required) duly adopted by the board of directors (or
members or partners, where applicable) of such Material Loan Party authorizing
the execution, delivery and performance of this Amendment and the Credit
Agreement as amended hereby, and the amendment of any other Loan Documents to
which it is party required to be amended hereby; and
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(c) Each Loan Party that has not executed and delivered this
Amendment shall have entered into a written instrument reasonably satisfactory
to the Administrative Agent pursuant to which it confirms that it consents to
this Amendment and that the Security Documents to which it is party will
continue to apply in respect of the Credit Agreement, as amended and restated
hereby, and the Obligations thereunder.
Notwithstanding the foregoing, the revision of the term
"Applicable Margin" and the provisions of paragraphs (b), (c), (d), (e)(iii),
(f) and (o) of Section 1 of this Amendment (the "Tranche D Provisions") shall
not become effective until the first date (the "Tranche D Effective Date") on
which the Administrative Agent (or its counsel) shall have received duly
executed counterparts hereof that, when taken together, bear the signatures of
each Tranche D Term Lender and the conditions to the making of the Tranche D
Term Loans set forth in Section 3(b) hereof shall have been satisfied.
SECTION 5. Effect of Amendment. (a) Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of or otherwise affect the rights and remedies of
the Lenders, the Administrative Agent or the Collateral Agent under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other provision of the
Credit Agreement or of any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower or Allied Waste to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
(b) For ease of reference, the Credit Agreement, in the form
amended and restated hereby, is attached as Exhibit A hereto.
SECTION 6. Costs and Expenses. The Borrower and Allied Waste,
jointly and severally, agree to reimburse the Administrative Agent for its
reasonable out of pocket expenses in connection with this Amendment, including
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this
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Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
ALLIED WASTE INDUSTRIES, INC.,
by
________________________________
Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
________________________________
Name:
Title:
JPMORGAN CHASE BANK,
individually and as Administrative
Agent and Collateral Agent,
by
________________________________
Name:
Title:
SIGNATURE PAGE TO
THIRD AMENDMENT AND RESTATEMENT
DATED AS OF MARCH 30, 2004,
TO THE ALLIED WASTE CREDIT AGREEMENT
DATED AS OF JULY 21, 1999, AS AMENDED
AND RESTATED AS OF NOVEMBER 20, 2003
To approve Third Amendment and
Restatement:
Name of Institution:
_______________________________
by_____________________________
Name:
Title:
Schedule A
to Third Amendent
and Restatement
Tranche D Term Loan Commitements
Tranche D
Lender Term Loan Commitment
EXHIBIT A
COMPOSITE COPY REFLECTING AMENDMENT
AND RESTATEMENT AS OF MARCH 30, 2004
================================================================================
CREDIT AGREEMENT dated as of
July 21, 1999,
as amended and restated as of
March 30, 2004
among
ALLIED WASTE INDUSTRIES, INC.,
ALLIED WASTE NORTH AMERICA, INC.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
and
UBS AG, CAYMAN ISLANDS BRANCH,
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS
CAYMAN ISLANDS BRANCH,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Co-Documentation Agents
----------------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as
Joint Lead Arrangers and Joint Bookrunners
================================================================================
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms ........................................................................ 2
SECTION 1.02. Classification of Loans and Borrowings ............................................... 47
SECTION 1.03. Terms Generally ...................................................................... 47
SECTION 1.04. Accounting Terms; GAAP ............................................................... 48
ARTICLE II
The Credits
SECTION 2.01. Commitments .......................................................................... 48
SECTION 2.02. Loans and Borrowings ................................................................. 49
SECTION 2.03. Requests for Borrowings .............................................................. 49
SECTION 2.04. Swingline Loans ...................................................................... 50
SECTION 2.05. Letters of Credit .................................................................... 52
SECTION 2.06. Funding of Borrowings ................................................................ 59
SECTION 2.07. Interest Elections ................................................................... 60
SECTION 2.08. Termination and Reduction of Commitments; Return of Tranche A Credit-Linked Deposits . 61
SECTION 2.09. Repayment of Loans; Evidence of Debt ................................................. 62
SECTION 2.10. Amortization of Term Loans and Tranche A Credit-Linked Deposits ...................... 63
SECTION 2.11. Prepayment of Loans .................................................................. 64
SECTION 2.12. Fees ................................................................................. 68
SECTION 2.13. Interest ............................................................................. 69
SECTION 2.14. Alternate Rate of Interest ........................................................... 70
SECTION 2.15. Increased Costs ...................................................................... 71
SECTION 2.16. Break Funding Payments ............................................................... 72
SECTION 2.17. Taxes ................................................................................ 73
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ........................... 76
SECTION 2.19. Mitigation Obligations; Replacement of Lenders ....................................... 77
SECTION 2.20. Credit-Linked Deposit Account ........................................................ 78
SECTION 2.21. Incremental Term Loans ............................................................... 79
SECTION 2.22. Funded Letter of Credit Facility ..................................................... 81
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ................................................................. 83
SECTION 3.02. Authorization ........................................................................ 83
SECTION 3.03. Enforceability ....................................................................... 84
SECTION 3.04. Governmental Approvals ............................................................... 84
SECTION 3.05. Financial Statements ................................................................. 84
SECTION 3.06. No Material Adverse Change ........................................................... 85
SECTION 3.07. Title to Properties; Possession Under Leases ......................................... 85
SECTION 3.08. Subsidiaries; Other Equity Investments ............................................... 85
SECTION 3.09. Litigation; Compliance with Laws ..................................................... 86
SECTION 3.10. Agreements ........................................................................... 86
SECTION 3.11. Federal Reserve Regulations .......................................................... 86
ii
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act ........................... 86
SECTION 3.13. Tax Returns .......................................................................... 87
SECTION 3.14. No Material Misstatements ............................................................ 87
SECTION 3.15. Employee Benefit Plans ............................................................... 87
SECTION 3.16. Environmental Matters ................................................................ 88
SECTION 3.17. Insurance ............................................................................ 89
SECTION 3.18. Labor Matters ........................................................................ 89
SECTION 3.19. Solvency ............................................................................. 89
SECTION 3.20. Intellectual Property ................................................................ 89
SECTION 3.21. Senior Indebtedness .................................................................. 90
SECTION 3.22. Security Interests ................................................................... 90
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date ........................................................... 91
SECTION 4.02. Each Credit Event .................................................................... 95
SECTION 4.03. Determinations Under Section 4.01 .................................................... 95
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties ................................................. 96
SECTION 5.02. Insurance ............................................................................ 96
SECTION 5.03. Obligations and Taxes ................................................................ 97
SECTION 5.04. Financial Statements, Reports, Etc ................................................... 98
SECTION 5.05. Litigation and Other Notices ......................................................... 100
SECTION 5.06. Employee Benefits .................................................................... 100
SECTION 5.07. Maintaining Records; Access to Properties and Inspections ............................ 101
SECTION 5.08. Environmental Laws ................................................................... 101
SECTION 5.09. Preparation of Environmental Reports ................................................. 102
SECTION 5.10. Further Assurances ................................................................... 102
SECTION 5.11. Compliance with Terms of Leaseholds .................................................. 104
SECTION 5.12. Performance of Material Agreements ................................................... 104
SECTION 5.13. Information Regarding Collateral ..................................................... 104
SECTION 5.14. Casualty and Condemnation ............................................................ 105
SECTION 5.15. Compliance with Laws ................................................................. 105
SECTION 5.16. Use of Proceeds and Letters of Credit ................................................ 105
SECTION 5.17. Interest Rate Protection ............................................................. 105
SECTION 5.18. Delivery of Collateral ............................................................... 106
SECTION 5.19. Termination of Liens ................................................................. 106
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities .............................................. 107
SECTION 6.02. Liens ................................................................................ 110
SECTION 6.03. No Other Negative Pledge ............................................................. 113
SECTION 6.04. Sale and Lease-Back Transactions ..................................................... 113
SECTION 6.05. Investments, Loans, Guarantees and Acquisitions ...................................... 113
SECTION 6.06. Mergers, Consolidations, Sales of Assets and Acquisitions ............................ 116
iii
SECTION 6.07. Hedging Agreements............................................................... 118
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness............................ 118
SECTION 6.09. Transactions with Affiliates..................................................... 121
SECTION 6.10. Business of Allied Waste, Borrower and Subsidiaries.............................. 122
SECTION 6.11. Other Indebtedness and Agreements................................................ 123
SECTION 6.12. Amendment of Material Documents.................................................. 124
SECTION 6.13. Interest Coverage Ratio.......................................................... 124
SECTION 6.14. Leverage Ratio................................................................... 125
SECTION 6.15. Capital Expenditures............................................................. 125
SECTION 6.16. Designation of Unrestricted Subsidiaries......................................... 126
SECTION 6.17. Commingling of Accounts.......................................................... 126
ARTICLE VII
Events of Default; Right To Cure
SECTION 7.01. Events of Default................................................................ 126
SECTION 7.02. Borrower's Right to Cure......................................................... 130
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.......................................................................... 133
SECTION 9.02. Waivers; Amendments.............................................................. 133
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................................... 136
SECTION 9.04. Successors and Assigns........................................................... 138
SECTION 9.05. Survival......................................................................... 144
SECTION 9.06. Counterparts; Integration; Effectiveness......................................... 144
SECTION 9.07. Severability..................................................................... 144
SECTION 9.08. Right of Setoff.................................................................. 145
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process....................... 145
SECTION 9.10. WAIVER OF JURY TRIAL............................................................. 146
SECTION 9.11. Headings......................................................................... 146
SECTION 9.12. Confidentiality.................................................................. 146
SECTION 9.13. Interest Rate Limitation......................................................... 147
SECTION 9.14. Securitization Vehicles.......................................................... 147
SCHEDULES:
Schedule 2.01 -- Commitments; Tranche A Credit-Linked Deposits
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.07 -- Landfills
Schedule 3.08 -- Subsidiaries; Equity Investments
Schedule 3.09 -- Litigation
iv
Schedule 3.15 -- Employee Benefit Plans
Schedule 3.16 -- Environmental Matters
Schedule 3.17 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02(a) -- Existing Liens
Schedule 6.02(b) -- Existing Liens To Be Released
Schedule 6.05 -- Investments
Schedule 6.08 -- Required Joint Venture Restricted Payments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Amended and Restated Collateral
Trust Agreement
Exhibit C -- Form of Amended and Restated Indemnity,
Subrogation and Contribution Agreement
Exhibit D -- Form of Amended and Restated Non-Shared
Collateral Pledge Agreement
Exhibit E -- Form of Amended and Restated Non-Shared
Collateral Security Agreement
Exhibit F -- Form of Amended and Restated Parent
Guarantee Agreement
Exhibit G-1 -- Form of Non-Shared Collateral Perfection
Certificate
Exhibit G-2 -- Form of Shared Collateral Perfection
Certificate
Exhibit H -- Form of Amended and Restated Shared
Collateral Pledge Agreement
Exhibit I -- Form of Amended and Restated Shared
Collateral Security Agreement
Exhibit J -- Form of Amended and Restated Subsidiary
Guarantee Agreement
Exhibit K-1 -- Form of Legal Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Exhibit K-2 -- Form of Legal Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇
v
Exhibit L -- Form of Portfolio Exemption Certificate
CREDIT AGREEMENT dated as of July 21, 1999,
as amended and restated as of August 20, 2003, among
ALLIED WASTE INDUSTRIES, INC., ALLIED WASTE NORTH
AMERICA, INC., the LENDERS party hereto, JPMORGAN
CHASE BANK, as Administrative Agent and Collateral
Agent, CITICORP NORTH AMERICA, INC., as Syndication
Agent, and UBS AG, CAYMAN ISLANDS BRANCH, CREDIT
SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Co-Documentation Agents.
On the Effective Date (such term and each other capitalized
term used but not otherwise defined in this preamble having the meaning assigned
to it in Article I below), the Borrower, Allied Waste, the Administrative Agent
and certain of the Lenders entered into this Agreement pursuant to which certain
of the Lenders thereunder agreed to extend credit to the Borrower on a revolving
credit basis and to make term loans to the Borrower. The parties hereto desire
to amend this Agreement and to restate it in its entirety giving effect to such
amendment.
Between March 1, 2003 and April 15, 2003, Allied Waste and the
Borrower consummated a series of transactions pursuant to which (a) Allied Waste
issued common stock in an underwritten public offering (the "Common Equity
Offering") for aggregate gross cash proceeds of $100,000,000, (b) Allied Waste
issued its 6-1/4% Series C Senior Mandatory Convertible Preferred Stock in a
public offering (the "Mandatory Convertible Offering", and together with the
Common Equity Offering, the "Equity Offerings") for aggregate gross cash
proceeds of $345,000,000, (c) the Borrower issued $450,000,000 aggregate
principal amount of 7?% Senior Notes due 2013 (the "2003 Senior Notes") in a
public offering (the "Senior Note Offering") and (d) a Securitization Vehicle
issued Third Party Securities in an aggregate principal amount of $149,000,000
in connection with a Securitization (the "March 2003 Securitization"). On the
Restatement Effective Date, (a) this Agreement will be amended and restated in
the form hereof and (b) all loans outstanding under the Original Credit
Agreement will be repaid and the lending commitments under the Original Credit
Agreement will be replaced by the Commitments. The Equity Offerings, the Senior
Note Offering, the March 2003 Securitization, the amendment and restatement of
this Agreement and the repayment of loans and replacement of commitments under
the Original Credit Agreement shall be collectively referred to herein as the
"Recapitalization".
The Borrower has requested the Lenders to extend credit
hereunder in the form of Term Loans to be made on the Restatement Effective Date
in an aggregate principal amount of $1,200,000,000, Tranche A Credit-Linked
Deposits to be made on the Restatement Effective Date in an aggregate amount of
$200,000,000, Revolving Loans, Revolving Letters of Credit and Swingline Loans
to be made or issued at any time and from time to time on or after the
Restatement Effective Date and prior to the Revolving Maturity Date in an
aggregate principal or face amount at any time outstanding not in excess of
$1,500,000,000 and Tranche A Letters of Credit to be issued at any time and from
time to time on and after the Restatement Effective Date and prior to the
Tranche A Maturity Date in an aggregate amount at any time outstanding
2
not in excess of $200,000,000, (subject to the limitations set forth herein).
The proceeds of the Term Loans and the Revolving Loans made on
the Restatement Effective Date will be used, together with the proceeds of the
Equity Offerings, the March 2003 Securitization and the Senior Note Offering,
(i) to repay all amounts due or outstanding under the Original Credit Agreement
on the Restatement Effective Date and (ii) to pay fees and expenses incurred in
connection with the Transactions. The proceeds of Revolving Loans and Swingline
Loans made after the Restatement Effective Date will be used solely for general
corporate purposes. Letters of Credit will be used solely to support payment
obligations of the Borrower and the Subsidiaries incurred in the ordinary course
of business.
The Lenders and the Swingline Lenders are willing to extend
such credit and the Issuing Banks are willing to issue Letters of Credit on the
terms and subject to the conditions set forth herein. Accordingly, in
consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree that this Agreement shall, upon
satisfaction of the conditions set forth in Section 4.01, be amended and
restated to read in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, means
that such Loan, or the Loans comprising such Borrowing, are bearing interest at
a rate determined by reference to the Alternate Base Rate.
"Acquired Business" means (a) any Person substantially all of
the capital stock or other ownership interests of which is acquired after the
date hereof by Allied Waste and/or a Restricted Subsidiary and (b) any assets
constituting a discrete business or operating unit acquired on or after the date
hereof by Allied Waste or a Restricted Subsidiary, in each case in accordance
with the terms of this Agreement.
"Acquired Indebtedness" means Indebtedness of an Acquired
Business outstanding on the date such Acquired Business was acquired by Allied
Waste and/or one of its Restricted Subsidiaries.
"Acquisition Consideration" means, with respect to any
acquisition, the aggregate amount of consideration paid by the members of the
Allied Group in connection therewith, including, without limitation (but without
duplication):
3
(1) the aggregate amount of cash paid and the aggregate fair
market value of noncash property delivered by members of the Allied
Group in connection with such acquisition;
(2) the aggregate amount of Indebtedness retained by the
Acquired Business; and
(3) the aggregate amount of Indebtedness of the Acquired
Business or the sellers thereof (other than those referred to in clause
(2) above) assumed by the members of the Allied Group in connection
with such acquisition,
but in any event shall exclude (x) common stock, Preferred Stock (other than
Cash-Pay Preferred Stock) and other Non-Cash-Pay Equity Interests issued by
Allied Waste in connection with such acquisition, (y) payment obligations of
members of the Allied Group based on post-acquisition performance of the
Acquired Business and (z) liabilities for which members of the Allied Group have
received indemnification or other financial assurances from or on behalf of the
transferor (so long as the obligors on such indemnification or other financial
assurances are, in the reasonable opinions of the Initial Lenders and the
Borrower, creditworthy).
"Additional Funded LC Amendment" has the meaning set forth in
Section 2.22.
"Additional Funded LC Commitment" has the meaning set forth in
Section 2.22.
"Additional Funded LC Facility" has the meaning set forth in
Section 2.22.
"Additional Funded LC Facility Notice" has the meaning set
forth in Section 2.22.
"Additional Funded LC Lender" has the meaning assigned to such
term in Section 2.22.
"Additional Funded LC Offer Period" has the meaning set forth
in Section 2.22.
"Additional Term Loan Lender" has the meaning assigned to such
term in Section 2.21.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent and collateral agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
4
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Allied Group" means, collectively, Allied Waste and Allied
Waste's Restricted Subsidiaries (including, without limitation, the Borrower),
and a "member" of the Allied Group means Allied Waste and each of Allied Waste's
Restricted Subsidiaries.
"Allied Guarantee" means the supplemental indenture dated as
of July 21, 1999 among Allied Waste, AWNA and JPMorgan Chase Bank (formerly
Chase Bank of Texas, N.A.), as Trustee, pursuant to which Allied Waste and AWNA
guarantee the BFI Indenture Debt.
"Allied Waste" means Allied Waste Industries, Inc., a Delaware
corporation.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate.
"Apollo" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied Group).
"Applicable Margin" means, for any day (a) with respect to any
ABR Term Loan (except Tranche D Term Loans) (i) 1.75% per annum at such times
when the then current Leverage Ratio is greater than or equal to 4.25 to 1.00
and (ii) 1.50% per annum at such times when the then current Leverage Ratio is
less than 4.25 to 1.00, (b) with respect to any Tranche D Term Loan that is an
ABR Loan, (i) 1.50% per annum at such times when the then current Leverage Ratio
is greater than or equal to 4.25 to 1.00 and (ii) 1.25% per annum at such times
when the then current Leverage Ratio is less than 4.25 to 1.00, (c) with respect
to any Eurodollar Term Loan (except Tranche D Term Loans) or Tranche A
Participation Fee, (i) 2.75% per annum at such times when the then current
Leverage Ratio is greater than or equal to 4.25 to 1.00 and (ii) 2.50% per annum
at such times when the then current Leverage Ratio is less than 4.25 to 1.00,
(d) with respect to any Tranche D Term Loan that is a Eurodollar Loan, (i) 2.50%
per annum at such times when the then current Leverage Ratio is greater than or
equal to 4.25 to 1.00 and (ii) 2.25% per annum at such times when the then
current Leverage Ratio is less than 4.25 to 1.00, and (e) with respect to any
ABR Revolving Loan or Eurodollar Revolving Loan, the applicable interest rate
margin per annum set forth below under the caption "ABR Spread" or "Eurodollar
Spread", as the case may be, based upon the Leverage Ratio as of the most recent
determination date; provided that the ABR Spread relating to Swingline Loans,
whenever the Leverage Ratio is in Category 2, 3, 4 or 5, will be .25% lower than
the ABR Spread reflected in the table below:
5
ABR Eurodollar
Leverage Ratio: Spread Spread
-------------------------------------------------------------------------------------------
Category 1 2.25% 3.25%
Greater than or equal to 5.25 to 1.00
-------------------------------------------------------------------------------------------
Category 2 2.00% 3.00%
Greater than or equal to 4.75 to 1.00 but
less than 5.25 to 1.00
-------------------------------------------------------------------------------------------
Category 3 1.75% 2.75%
Greater than or equal to 4.25 to 1.00 but
less than 4.75 to 1.00
-------------------------------------------------------------------------------------------
Category 4 1.50% 2.50%
Greater than or equal to 3.75 to 1.00 but
less than 4.25 to 1.00
-------------------------------------------------------------------------------------------
Category 5 1.25% 2.25%
Less than 3.75 to 1.00
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon Allied Waste's Consolidated financial statements delivered pursuant
to Section 5.04(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such Consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 1 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrower fails to deliver the Consolidated financial statements required
to be delivered by it pursuant to Section 5.04(a) or (b), during the period from
and including the last date for timely delivery thereof (without regard to any
applicable grace period) until the date on which such Consolidated financial
statements are delivered.
"Applicable Percentage" means, (a) with respect to any
Revolving Lender, the percentage of the total Revolving Commitments represented
by such Lender's Revolving Commitment and (b) with respect to any Tranche A
Lender, the percentage of the Total Tranche A Credit-Linked Deposit represented
by such Lender's Tranche A Credit-Linked Deposit. If the Revolving Commitments
have terminated or expired, the Applicable Percentages with respect to any
Revolving Lender shall be determined based upon the Revolving Commitments most
recently in effect, giving effect to any assignments. If the Tranche A
Credit-Linked Deposits shall have been applied in full to reimburse Tranche A LC
Disbursements, the Applicable Percentage with respect to any Tranche A Lender
shall be determined based upon the Total Tranche A Credit-Linked Deposit most
recently in effect, giving effect to any assignments.
6
"Approved Fund" means (a) with respect to any Lender, a CLO
managed by such Lender or by an Affiliate of such Lender and (b) with respect to
any Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale" means any sale, lease, assignment, transfer or
other disposition of any property (whether now owned or hereafter acquired,
whether in one transaction or a series of related transactions and whether by
way of merger or otherwise) by any member of the Allied Group, including,
without limitation, any such sale, assignment, transfer or other disposition of
any capital stock or other ownership interests of any of Allied Waste's
Subsidiaries and any sale or securitization of accounts receivable (other than
assignments of accounts receivable for purposes of collection in the ordinary
course of business), but excluding dispositions of obsolete inventory or
equipment and sales of inventory and equipment, in each case, in the ordinary
course of business.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Assumed RMI Liabilities" means the insurance, capping,
closure, post-closure, environmental and related liabilities, including clean-up
and remediation liabilities, that were assumed by the RMI Subsidiaries from the
Borrower and Restricted Subsidiaries prior to the Third Amendment Effective
Date.
"Attributable Debt" means, with respect to any Sale and
Leaseback Transaction, the present value (computed in accordance with GAAP as if
the obligations incurred in connection with such Sale and Leaseback Transaction
were Capital Lease Obligations) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination. Any determination of any rate implicit in the terms of the lease
included in such Sale and Leaseback Transaction made in accordance with
generally accepted financial practices by the Borrower shall be binding and
conclusive absent manifest error.
"AWNA" means the Borrower.
"AWNA-BFI Subsidiaries" means the limited liability companies
that are Subsidiaries of AWNA, but not of BFI, and that became parties to the
Shared Collateral Security Agreement in
7
connection with the transfer to them in July 2002 of certain assets and
businesses owned by BFI and its Subsidiaries.
"AWNA Senior Note Indenture" means the Indenture dated as of
December 23, 1998, among AWNA, Allied Waste, various Subsidiaries, and U.S. Bank
Trust National Association, as Trustee, including all amendments thereto and all
supplements thereto (other than any 2001 Indenture), as in effect on the
Restatement Effective Date, and as thereafter amended or supplemented in
accordance with the provisions of this Agreement.
"AWNA Senior Notes" means the senior notes of AWNA issued
pursuant to the AWNA Senior Note Indenture.
"Bank Indebtedness" means any and all amounts payable under or
in respect of this Agreement and the other Loan Documents in respect of the
Obligations, as amended from time to time, including principal, premium, (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Borrower whether or
not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and all other amounts
payable thereunder or in respect thereof.
"Benchmark LIBOR Rate" shall have the meaning assigned to such
term in Section 2.20(b).
"BFI" means ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation.
"BFI Indenture" means the Restated Indenture dated as of
September 1, 1991, between BFI and JPMorgan Chase Bank (formerly Chase Bank of
Texas, N.A.), as successor trustee to First City Texas-Houston, N.A., including
all supplements, amendments and modifications thereto, as in effect on the
Restatement Effective Date, and as thereafter amended in accordance with the
provisions of this Agreement.
"BFI Indenture Debt" means the senior notes of BFI issued
pursuant to the BFI Indenture and outstanding on the Restatement Effective Date.
"Blackstone" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands
limited partnership, Blackstone Offshore Capital Partners II L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership III L.P.,
a Delaware limited partnership, and Blackstone Family Investment Partnership II
L.P., a Cayman Islands limited partnership (each of the foregoing, a "Blackstone
Fund") and (ii) each Affiliate of any Blackstone Fund that is not an operating
company or Controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee of The
Blackstone Group L.P.
8
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Allied Waste North America, Inc., a Delaware
corporation.
"Borrower's Portion of Excess Cash Flow" in respect of any
Excess Cash Flow Calculation Period means 50% of Excess Cash Flow for such
period.
"Borrowing" means (a) Loans of the same Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Phoenix, Arizona are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by Allied Waste or any of its Restricted Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs unless such repairs are
required to be capitalized in accordance with GAAP) during such period computed
in accordance with GAAP; provided that Capital Expenditures shall not include
(a) expenditures classified as Permitted Acquisitions, (b) expenditures made by
an Acquired Business prior to the time such Acquired Business was acquired by
Allied Waste or any of its Restricted Subsidiaries pursuant to a Permitted
Acquisition, (c) expenditures made with the proceeds of condemnation awards or
insurance for fixed assets, plant and equipment, (d) expenditures made to
acquire capital assets made with the proceeds of Asset Sales not required to be
applied to the mandatory prepayment of Loans hereunder, (e) interest capitalized
during such period, (f) expenditures that are accounted for as capital
expenditures of such Person and that actually are paid for by a third party
(excluding Allied Waste or any Restricted Subsidiary) and for which neither
Allied Waste nor any Restricted Subsidiary has provided or is required to
provide or incur, directly or indirectly, any consideration or obligation to
such third party or any other person (whether before, during or after such
period) and (g) the book value of any asset owned by such Person prior to or
during such period to the extent such book value is included as a capital
expenditure during such period as a result of such person reusing or beginning
to reuse such asset during such period without a corresponding expenditure
actually having been made in such period; provided that any expenditure
necessary in order to permit such asset to be reused shall be included as a
Capital Expenditure during the period that such expenditure
9
actually is made and such book value shall have been included in Capital
Expenditures when such asset was originally acquired.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means Permitted Investments.
"Cash-Pay Preferred Stock" means (a) for purposes of the
definition of Consolidated Interest Expense, Preferred Stock of any member of
the Allied Group that by its terms requires the periodic payment of cash
dividends or in respect of which the issuer has declared or paid cash dividends
and (b) for all other purposes (including the definitions of Indebtedness and
Total Indebtedness), Preferred Stock of any member of the Allied Group to the
extent that (i) such member of the Allied Group has undertaken to redeem or
repurchase for cash or other assets (other than common stock or Preferred Stock
of Allied Waste which, in the case of such Preferred Stock, is Non-Cash-Pay at
such time) at a fixed or determinable date or dates prior to the date that is
six months after the Term Loan Maturity Date, whether by operation of a sinking
fund or otherwise or (ii) such Preferred Stock is required by its terms to be
repurchased or redeemed for cash or other assets (other than common stock or
Preferred Stock of Allied Waste which, in the case of such Preferred Stock, is
Non-Cash-Pay at such time) by such member of the Allied Group on any date or
dates prior to the date that is six months after the Term Loan Maturity Date at
the option of the holder thereof or upon the occurrence of a condition or event
not solely within the control of such member of the Allied Group (other than, in
each such case, upon the occurrence of a change in control of such member of the
Allied Group or any Affiliate thereof).
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its subsidiaries receives insurance
proceeds, proceeds of a condemnation award or other compensation to the extent
that such proceeds or other compensation exceeds $10,000,000 with respect to any
individual event or $25,000,000 with respect to all such events, in each case in
any calendar year.
"Change in Control" means:
(a) any Person or group (other than Apollo or Blackstone)
(within the meaning of Rule 13d-5 promulgated under the Securities
Exchange Act of 1934 as in effect on the date hereof) shall have
acquired, directly or indirectly, beneficial ownership of shares
representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Allied
Waste;
10
(b) a majority of the seats (other than vacant seats) on the
board of directors of Allied Waste shall at any time be occupied by
Persons who were neither nominated by the board of directors of Allied
Waste nor appointed by directors so nominated;
(c) any change in control (or similar event, however
denominated) with respect to Allied Waste or the Borrower shall occur
under and as defined in any indenture or agreement in respect of
Indebtedness in an aggregate principal amount in excess of $50,000,000;
or
(d) Allied Waste shall cease to own and control, directly,
beneficially and of record, 100% of the outstanding capital stock of
the Borrower, free and clear of all Liens (other than Liens under the
Non-Shared Collateral Pledge Agreement).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment,
Term Loan Commitment, Swingline Commitment or Tranche A Credit-Linked Deposit.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of a
Lender.
"CNAI" means Citicorp North America, Inc.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral" as defined in the
Non-Shared Collateral Security Agreement or "Collateral" as defined in the
Shared Collateral Security Agreement.
"Collateral Agent" means JPMorgan Chase Bank, in its capacity
as collateral agent for the Lenders under the Loan Documents or in its capacity
as the Collateral Trustee.
"Collateral Trust Agreement" means the Amended and Restated
Collateral Trust Agreement, substantially in the form of Exhibit B, among BFI,
Subsidiary Loan Parties that are Subsidiaries of BFI, AWNA-
11
BFI Subsidiaries and the Collateral Trustee for the benefit of the Shared
Collateral Secured Parties, as amended, supplemented or otherwise modified from
time to time in accordance with the provisions of this Agreement.
"Collateral Trustee" means JPMorgan Chase Bank, in its
capacity as collateral trustee under the Collateral Trust Agreement, the Shared
Collateral Pledge Agreement and the Shared Collateral Security Agreement.
"Commitment" means the Revolving Commitments, the Term Loan
Commitments, the Swingline Commitments and the Tranche A Credit-Linked Deposits,
or any combination thereof (as the context requires).
"Common Equity Offering" has the meaning assigned to such term
in the preamble of this Agreement.
"Confidential Information Memorandum" means the Confidential
Information Memorandum of Allied Waste and the Borrower dated February 2003,
provided to prospective Lenders in connection with the syndication of the
Commitments.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated
Operating Income for such period, plus, without duplication and to the extent
deducted in determining such Consolidated Operating Income, the sum of:
(a) all amounts attributable to depreciation and amortization
for such period; plus
(b) all Non-Cash Non-Recurring Charges during such period
(including, without limitation, all accruals for closure and
post-closure liabilities); plus
(c) all non-recurring management fees paid to Apollo and
Blackstone during such period; plus
(d) all non-recurring cash charges incurred in connection with
Permitted Acquisitions, Investments permitted under Section 6.05(a),
(g) or (h), Indebtedness permitted under Section 6.01 and
Securitizations permitted under Sections 6.05 and 6.06 during such
period; plus
(e) all cash losses associated with asset sales during such
period; plus
(f) all fees accrued to Issuing Banks in respect of Letters of
Credit (whether or not actually paid during such period);
and minus, without duplication and to the extent included in determining
Consolidated Operating Income for such period:
(i) all Non-Cash Non-Recurring Gains during such period;
12
(ii) all cash disbursements made in such period attributable
to Non-Cash Non-Recurring Charges added back in determining
Consolidated EBITDA during a prior period, including, without
limitation, cash disbursements made in respect of prior accruals for
closure and post-closure liabilities (provided that, for purposes of
this clause (ii), Allied Waste shall be required to monitor actual cash
disbursements only for those non-cash charges that exceed $1,000,000
individually and $10,000,000 in the aggregate in any fiscal year); and
(iii) all cash gains associated with asset sales during such
period,
all as determined on a Consolidated basis with respect to Allied Waste, the
Restricted Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles.
For purposes of Section 6.13 and 6.14, if the Borrower or any
of its Restricted Subsidiaries or RMI Subsidiaries acquires any Acquired
Business during any Rolling Period, Consolidated EBITDA for such Rolling Period
will be determined on a pro forma basis as if such Acquired Business were
acquired on the first day thereof. In determining the pro forma adjustments to
Consolidated EBITDA to be made with respect to any Acquired Business for periods
prior to the acquisition date thereof, actions taken by the Borrower and its
Restricted Subsidiaries prior to the first anniversary of the related
acquisition date that result in cost savings with respect to such Acquired
Business will be deemed to have been taken on the first day of the Rolling
Period for which Consolidated EBITDA is being determined (with the intent that
such cost savings be effectively annualized by extrapolation from the
demonstrated cost savings since the related acquisition date). Such pro forma
adjustments will be subject to delivery to the Administrative Agent of a
certificate of a Financial Officer; such certificates may be delivered with
respect to any Acquired Business at any time after the last day of the first
fiscal quarter of the Borrower to end after the related acquisition date and may
be delivered quarterly (but only once per fiscal quarter with respect to each
Acquired Business). Each such certificate shall be accompanied by supporting
information and calculations demonstrating the actual cost savings with respect
to such Acquired Business and such other information as any Lender, through the
Administrative Agent, may reasonably request.
"Consolidated Interest Expense" means, for any period, without
duplication, consolidated interest expense of Allied Waste, its Restricted
Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles for such
period, plus the sum, for Allied Waste, its Restricted Subsidiaries, the RMI
Subsidiaries and the Securitization Vehicles (determined on a Consolidated basis
without duplication), of the following, in each case to the extent not otherwise
included in determining consolidated interest expense:
(a) capitalized interest expense for such period of Allied
Waste, its Restricted Subsidiaries, the RMI Subsidiaries and the
Securitization Vehicles; plus
13
(b) cash interest accrued during such period in respect of
Indebtedness attributable to any assets held for sale during such
period (whether or not actually paid during such period); plus
(c) all fees accrued to Issuing Banks during such period in
respect of Letters of Credit (whether or not actually paid during such
period); plus
(d) all cash dividends paid or payable during such period in
respect of Cash-Pay Preferred Stock of members of the Allied Group;
plus
(e) all accrued settlement payments in respect of Hedging
Agreements owing by Allied Waste, any Restricted Subsidiary, the RMI
Subsidiary or any Securitization Vehicle during such period;
and minus the sum of, for Allied Waste, its Restricted Subsidiaries, the RMI
Subsidiaries and the Securitization Vehicles (determined on a Consolidated basis
without duplication), in each case to the extent not otherwise deducted in
determining consolidated interest expense, (i) any amortization and other
non-cash charges or expenses incurred during such period to the extent included
in determining consolidated interest expense (other than amounts relating to the
unwinding of any Hedging Agreement), including, without limitation, amortization
of deferred debt origination and issuance costs and amortization of accumulated
other comprehensive income, (ii) all amounts associated with the unwinding of
any Hedging Agreement to the extent such unwinding is the direct result of any
prepayment of the Term Loans occurring within 60 days of the date on which such
amount is incurred, (iii) to the extent included in determining consolidated
interest expense, the amount of any premium paid to repurchase, defease or
redeem any Indebtedness in any Permitted Refinancing Transaction or Permitted
Public Notes Refinancing Transaction and (iv) all accrued settlement payments in
respect of Hedging Agreements payable to Allied Waste, any Restricted
Subsidiary, RMI Subsidiary, or any Securitization Vehicle during such period.
"Consolidated Operating Income" means, for any period, the sum
of (a) operating income (or loss) of Allied Waste, the Restricted Subsidiaries,
the RMI Subsidiaries and the Securitization Vehicles for such period and (b) to
the extent not included as operating income in clause (a) above, operating
income (or loss) attributable to assets held for sale during such period.
"Consolidated Total Assets" means, as at any date of
determination, the aggregate amount of assets reflected on the Consolidated
balance sheet of the Allied Group prepared in accordance with GAAP most recently
delivered to the Administrative Agent pursuant to Section 5.04 on or prior to
such date of determination.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
14
"Cure Amount" has the meaning assigned to such term in Section
7.02.
"Cure Right" has the meaning assigned to such term in Section
7.02.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Excess Cash Expenditures" means the use of the
Borrower's Portion of Excess Cash Flow to (i) make dividend payments pursuant to
Section 6.08(a)(viii); provided that any dividend paid by the Borrower or any
Restricted Subsidiary to Allied Waste in such Section shall not be deemed to be
the payment of a dividend for purposes of this definition, (ii) repurchase
outstanding Allied Waste common stock pursuant to Section 6.08(a)(ix) and (iii)
make prepayments, repurchases or redemptions of Refinanceable Indebtedness
pursuant to Section 6.11(a)(z).
"Designation" shall have the meaning assigned to such term in
Section 6.16.
"dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means a Restricted Subsidiary organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Effective Date" means July 30, 1999.
"8.875% Notes" means $600,000,000 aggregate principal amount
of senior notes of the Borrower due April 1, 2008 issued pursuant to the terms
of the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"8.50% Notes" means $750,000,000 aggregate principal amount of
senior notes of the Borrower due December 1, 2008 issued pursuant to the terms
of the 2001 Indenture.
"Environment" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, any building, structure or fixture, or as otherwise defined
in any Environmental Law.
"Environmental Claim" means any written accusation,
allegation, notice of violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any Governmental Authority
or any Person, in any such case for or relating to damages, injunctive or
equitable relief, personal injury (including sickness, disease or death),
remedial action costs, tangible or intangible property damage, natural resource
damages, nuisance, pollution, investigation, closure and post-closure care of
any landfill, any adverse effect on the environment caused by any Hazardous
Material, or for fines, penalties or restrictions, resulting from or based upon
(a) the threat, the existence, or the continuation of the
15
existence, of a Release (including sudden or nonsudden, accidental or
nonaccidental Releases), (b) exposure to any Hazardous Material, (c) the
presence, use, handling, transportation, storage, treatment or disposal of any
Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" means any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices, legally binding agreements or published and
legally binding guidance documents issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the treatment, storage, disposal, management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. ▇▇.▇▇. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Action of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. ▇▇.▇▇. 6901 et seq., the Federal Water Pollution Control Act, as amended,
33 U.S.C. ▇▇.▇▇. 1251 et seq., the Clean Air Act of 1970, as amended, 42 U.S.C.
▇▇.▇▇. 7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. ▇▇.▇▇.
2601 et seq., the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. ▇▇.▇▇. 651 et seq., the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001 et seq., the Safe Drinking Water Act of
1974, as amended, 42 U.S.C. ▇▇.▇▇. 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. ▇▇.▇▇. 5101 et seq., and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of Allied Waste, the Borrower or
any Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environmental Law.
"Equity Interests" means, with respect to any Person, shares
of capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests issued by such Person.
"Equity Offerings" has the meaning assigned to such term in
the preamble of this Agreement.
16
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA; provided that no
ERISA Event shall be "outstanding" on any date on which such ERISA Event has
been corrected.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, with respect to Allied Waste, its
Restricted Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles,
on a Consolidated basis for any Excess Cash Flow Calculation Period, the excess
of (a) the sum (without duplication) of:
(i) Consolidated EBITDA for such Excess Cash Flow Calculation
Period;
(ii) all gains resulting in the receipt of cash by the Allied
Group during such Excess Cash Flow Calculation Period to the extent not
included in Consolidated EBITDA for such Excess Cash Flow Calculation
Period; and
(iii) any decrease in Net Working Capital during such Excess
Cash Flow Calculation Period;
17
over (b) the sum (without duplication) of
(i) taxes paid or payable in cash during such Excess Cash Flow
Calculation Period;
(ii) Consolidated Interest Expense paid or payable in cash
during such Excess Cash Flow Calculation Period;
(iii) Capital Expenditures made in cash and in accordance with
Section 6.15 during such Excess Cash Flow Calculation Period (other
than Required Applications);
(iv) expenditures made in cash for Permitted Acquisitions and
for Investments permitted under Section 6.05(h) and (k) during such
Excess Cash Flow Calculation Period other than Required Applications
and only to the extent not made with the proceeds of any Indebtedness;
(v) scheduled repayments and mandatory prepayments of
Indebtedness made in cash by Allied Waste, its Restricted Subsidiaries
and the RMI Subsidiaries during such Excess Cash Flow Calculation
Period other than Required Applications and only to the extent not made
with the proceeds of any Indebtedness;
(vi) mandatory prepayments of the principal of Term Loans
during such Excess Cash Flow Calculation Period, but only to the extent
such prepayments do not occur in connection with a refinancing of all
or any portion of such Loans or constitute Required Applications;
(vii) any increase in Net Working Capital during such Excess
Cash Flow Calculation Period;
(viii) dividends or other distributions made by Allied Waste
in cash during such Excess Cash Flow Calculation Period that are
permitted by Section 6.08, other than any such dividends or
distributions constituting Designated Excess Cash Expenditures; and
(ix) repayments and prepayments of Third Party Securities made
by Allied Waste, its Restricted Subsidiaries and the Securitization
Vehicles during such Excess Cash Flow Calculation Period (excluding any
repayments made by Securitization Vehicles from the proceeds from the
issuance of securities by Securitization Vehicles); provided, however,
that all such repayments and prepayments (other than scheduled and
mandatory principal repayments) made pursuant to this clause (b)(ix)
may be made only (A) with the proceeds of collections of accounts
receivable and (B) in connection with the dissolution or winding up of
the Securitization Vehicle that issued such Third Party Securities.
"Excess Cash Flow Calculation Period" means, (i) initially,
the period from January 1, 2003 through March 31, 2004 and (ii) thereafter, the
twelve month period beginning on April 1 of any year and ending on March 31 of
the following year.
18
"Excess Tranche A Credit-Linked Deposits" means, at any time,
the excess, if any, of the Total Tranche A Credit-Linked Deposit over the
Tranche A LC Exposure at such time.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder or, for
purposes of Section 2.17 only, by or on account of any obligation of the
Administrative Agent pursuant to Section 2.20(b), (a) any taxes (including
franchise taxes and taxes imposed on (or measured by) net income, receipts or
capital) imposed as a result of a connection between such recipient and the
jurisdiction imposing such tax, including, without limitation, any connection
arising from such recipient being or having been a citizen, domiciliary or
resident of such jurisdiction, being organized in such jurisdiction, or having
or having had a permanent establishment or fixed place of business therein, but
excluding any such connection arising solely from the activities of such
recipient pursuant to or in respect of this Agreement or under any other Loan
Document, including executing, delivering or performing its obligations or
receiving a payment under, or enforcing, this Agreement or any other Loan
Document, (b) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any tax that arises other
than as a result of a Change in Law subsequent, in the case of each Foreign
Lender, to the date such Foreign Lender becomes a party to this Agreement,
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower or the Administrative Agent, as
applicable, with respect to any withholding tax pursuant to Section 2.17(a) or
(b), and (c) any tax that is attributable to a Lender's failure to comply with
Section 2.17(e).
"Existing Letter of Credit" means each letter of credit issued
or deemed to have been issued under the Original Credit Agreement that is
outstanding on the Restatement Effective Date. The Existing Letters of Credit
are listed in Schedule 2.05.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Financial Performance Covenants" means the covenants set
forth in Sections 6.13 and 6.14.
19
"First Amendment" means the First Amendment and Restatement,
dated as of August 20, 2003, to this Agreement.
"First Amendment Effective Date" means the date on which the
First Amendment became effective in accordance with Section 4 thereof.
"Foreign Lender" means any Lender that is not a United States
person within the meaning of Section 7701(a)(30) of the Code.
"Foreign Subsidiary" means any Restricted Subsidiary that is
not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement
and the Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes; hazardous or toxic substances or wastes; pollutants; and
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all substances, wastes, pollutants and materials of any nature regulated
pursuant to any Environmental Law.
20
"Hedging Agreement" means any Interest Rate Protection
Agreement or commodity price protection agreement or other commodity price
hedging arrangement.
"Incremental Commitment" has the meaning assigned to such term
in Section 2.21.
"Incremental Facility Amendment" has the meaning assigned to
such term in Section 2.21.
"Incremental Facility Notice" has the meaning set forth in
Section 2.21.
"Incremental Term Loans" has the meaning assigned to such term
in Section 2.21.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable and accrued obligations incurred
in the ordinary course of business and waste disposal based royalties), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (j)
all net payment obligations of such Person in respect of Hedging Agreements, and
(k) all fixed obligations of such Person to pay a determined amount of cash or
other assets (other than common stock or Preferred Stock of Allied Waste which,
in the case of such Preferred Stock, is Non-Cash-Pay at such time) with respect
to Cash Pay Preferred Stock issued by such Person. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and
Other Taxes.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Indemnity, Subrogation and Contribution Agreement" means the
Amended and Restated Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit C, among the Borrower, the Subsidiary Loan
Parties and the Administrative Agent, as amended,
21
supplemented or otherwise modified from time to time in accordance with the
provisions of this Agreement.
"Initial Lenders" means JPMorgan Chase Bank and CNAI.
"Insurance Subsidiaries" means, collectively, (i) Reliant
Insurance Company and Indemnity Corporation, an insurance company organized
under the laws of the State of Vermont and, on the Restatement Effective Date, a
wholly owned Subsidiary of the Borrower; (ii) Global Indemnity Assurance
Company, an insurance company organized under the laws of the State of Vermont
and, on the Restatement Effective Date, a wholly owned Subsidiary of the
Borrower; and (iii) Saguaro National Insurance Company, an insurance company
organized under the laws of the State of Vermont and, on the Restatement
Effective Date, a wholly owned Subsidiary of the Borrower.
"Intellectual Property" means the "Intellectual Property" as
defined in the Non-Shared Collateral Security Agreement and the "Intellectual
Property" as defined in the Shared Collateral Security Agreement
"Intercompany Agreements" means the Management Agreements
between Allied Waste and the Borrower dated November 15, 1996.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) Consolidated EBITDA for the Rolling Period most recently ended on or prior
to such date to (b) Consolidated Interest Expense for such Rolling Period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Loan with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending (i) on
the numerically corresponding day in the calendar month that is one, two, three
or six months (or, if available from each Lender, nine or twelve months)
thereafter or (ii) on the date that is 7 or 14 days thereafter (or, if such date
is not a Business Day, the next following Business Day), in each case as the
Borrower may elect; provided, that (1) no Interest Period referred to in clause
(ii) above may end after the date that is 90 days after the Restatement
Effective Date, (2) if any Interest Period referred to in clause (i) above would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next
22
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (3) any
Interest Period referred to in clause (i) above that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Interest Rate Protection Agreement" means any interest rate
protection agreement or foreign currency exchange agreement or other interest or
currency exchange rate hedging arrangement.
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person (by means of any
transfer of cash or other property to any Person or any payment for property or
services for the account or use of any Person, or otherwise), (ii) any direct or
indirect purchase or other acquisition of any Equity Interests, bond, note,
debenture or other debt or equity security or evidence of Indebtedness, or any
other ownership interest (including, any option, warrant or any other right to
acquire any of the foregoing), issued by such other Person, whether or not such
acquisition is from such or any other Person, (iii) any direct or indirect
payment by such Person on a Guarantee of any obligation of or for the account of
such other Person or any direct or indirect issuance by such Person of such a
Guarantee (provided, however, that for purposes of Section 6.05, payments under
Guarantees not exceeding the amount of the Investment attributable to the
issuance of such Guarantee will not be deemed to result in an increase in the
amount of such Investment) or (iv) any other investment of cash or other
property by such Person in or for the account of such other Person.
"Issuing Banks" means (a) JPMorgan Chase Bank and any other
Lender designated as an Issuing Bank in accordance with the provisions of
Section 2.05(b)(vii), in each case in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.05(b)(vii) and (b) in respect of each Existing Letter of Credit, the issuer
thereof. An Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Banks" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"Junior Indebtedness" means (a) Indebtedness of members of the
Allied Group in respect of the Senior Subordinated Notes and other Permitted
Subordinated Debt, and (b) Indebtedness of members of the Allied Group the
payment of which is contractually subordinated to the obligations of such
members as Loan Parties hereunder.
"LC Disbursement" means a Revolving LC Disbursement or a
Tranche A LC Disbursement.
23
"LC Exposure" means, at any time, the Revolving LC Exposure
and the Tranche A LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01, on
Schedule A to the Second Amendment and, effective as of the Tranche D Effective
Date, on Schedule A to the Third Amendment (as appended to the Third Amendment
on the Tranche D Effective Date) and any other Person that shall have become a
party hereto pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Acceptance
or otherwise ceases to have any Loans or Commitments hereunder. Unless the
context otherwise requires, the term "Lenders" includes the Swingline Lenders
and the Tranche A Lenders.
"Letter of Credit" means any Existing Letter of Credit, any
Revolving Letter of Credit or any Tranche A Letter of Credit.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the Rolling Period
most recently ended on or prior to such date, all determined on a Consolidated
basis in accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Screen, providing rate quotations comparable to those
currently provided on such page of such Screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
"Loan Documents" means this Agreement, the Security Agreements
and the other Security Documents, as the same may be amended, restated,
supplemented, or otherwise modified from time to time.
"Loan Parties" means Allied Waste, the Borrower and the
Subsidiary Loan Parties.
24
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement, including the Tranche B Term Loans and Tranche C
Term Loans made pursuant to the Second Amendment and the Tranche D Term Loans
made on the Tranche D Effective Date pursuant to the Third Amendment.
"Mandatory Convertible Offering" has the meaning assigned to
such term in the preamble of this Agreement.
"Mandatory Convertible Securities" means the Series C Senior
Mandatory Convertible Preferred Stock of Allied Waste issued in the Mandatory
Convertible Offering.
"March 2003 Securitization" has the meaning assigned to such
term in the preamble to this Agreement.
"Margin Stock" means "margin stock", as such term is defined
in Regulation U of the Board.
"Material Adverse Effect" means (a) a materially adverse
effect on the business, condition (financial or otherwise), operations,
performance or properties of Allied Waste and its Restricted Subsidiaries, taken
as a whole, (b) a material impairment of the ability of Allied Waste or the
Borrower to perform its obligations under the Loan Documents, (c) a material
impairment of the ability of the members of the Allied Group, taken as a whole,
to perform their collective obligations under the Loan Documents, or (d) a
material impairment of the rights of or benefits available to the Administrative
Agent and the Lenders under the Loan Documents.
"Material Agreement" means an agreement that is material to
the conduct of the business of Allied Waste and its Restricted Subsidiaries,
taken as a whole.
"Material Indebtedness" means Indebtedness (other than the
Loans, the Letters of Credit and Indebtedness attributable to any Securitization
Vehicle), or obligations in respect of one or more Hedging Agreements, of any
one or more of Allied Waste and its Restricted Subsidiaries (other than
Indebtedness between Allied Waste and any Restricted Subsidiary or any
Restricted Subsidiary and any other Restricted Subsidiary) in an outstanding
aggregate principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations in respect of
any Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements with the applicable counterparty) that Allied
Waste or such Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Material Lease" means a lease of Allied Waste or a Restricted
Subsidiary with respect to real property (i) having an aggregate book value of
more than $50,000,000 or (ii) providing for annual rental payments in excess of
$10,000,000.
"Material Loan Party" means Allied Waste, the Borrower, BFI
and each other Loan Party that has (i) $50,000,000 in gross revenues in any
fiscal year or (ii) $50,000,000 in total assets.
25
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(a) In the case of any Asset Sale, the aggregate amount of all
cash payments as and when received by the members of the Allied Group
directly or indirectly in connection with such Asset Sale; provided
that:
(1) such Net Available Proceeds shall be net of (x)
the amount of any legal, title and recording tax expenses,
commissions and other reasonable fees and expenses (including
reasonable expenses of preparing the relevant property for
sale) paid by the members of the Allied Group in connection
with such Asset Sale, (y) any Federal, state and local income
or other taxes reasonably estimated in good faith to be
payable by members of the Allied Group with respect to such
Asset Sale and (z) the aggregate amount of reserves taken by
the members of the Allied Group in accordance with GAAP
against indemnification obligations incurred by them in
connection with such Asset Sale; provided that if any such
reserves are subsequently reversed by or released to members
of the Allied Group, an amount equal to the amount of such
reversal or release shall be deemed to constitute Net
Available Proceeds;
(2) such Net Available Proceeds shall be net of any
repayments of Indebtedness and related obligations by members
of the Allied Group to the extent that (x) such Indebtedness
is secured by a Lien on the property that is the subject of
such Asset Sale and permitted by Section 6.02 and (y) the
transferee of (or holder of a Lien on) such property requires
that such Indebtedness be repaid as a condition to the
purchase of such property;
(3) in the case of an Asset Sale consisting of a
substantially contemporaneous exchange (including by way of a
substantially contemporaneous purchase and sale) of discrete
assets of members of the Allied Group for one or more other
assets used for similar purposes, Net Available Proceeds shall
be net of cash payments made by members of the Allied Group in
connection with such exchange; and
(4) in the case of a Securitization permitted by
Sections 6.05 and 6.06, such Net Available Proceeds shall be
net of, without duplication, (x) any amounts incurred in
connection with such Securitization by the Borrower or any of
its Subsidiaries set forth in clause (1) of this definition
and (y) any other fees, costs or expenses paid in cash by the
applicable Securitization Vehicle in connection with such
Securitization; provided, however, that any Sellers' Retained
Interests shall not be deemed to
26
constitute a cost or expense for purposes of calculating such
Net Available Proceeds.
(b) In the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received in cash by members of the Allied Group in respect of such
Casualty Event net of (1) reasonable cash expenses incurred by them in
connection therewith, (2) contractually required repayments of
Indebtedness and related obligations to the extent secured by a Lien on
the property suffering such Casualty Event and permitted by Section
6.02 and (3) any income, transfer and other taxes reasonably estimated
to be actually payable by members of the Allied Group in respect of
such Casualty Event; provided, however, that, in the case of any
Casualty Event, if the Borrower shall deliver a certificate of a
Financial Officer to the Administrative Agent at the time of such
Casualty Event setting forth the Borrower's intent to use all or a
portion of the proceeds of such Casualty Event to replace or repair the
assets that are the subject of such Casualty Event commencing within
180 days of receipt of such proceeds and no Event of Default shall have
occurred and shall be continuing at the time of such certificate or at
the proposed time of the application of such proceeds, such proceeds
shall not constitute Net Available Proceeds except to the extent not so
used within 365 days after the commencement of such repair or
replacement, at which time such proceeds shall be deemed Net Available
Proceeds.
(c) In the case of any issuance of Indebtedness or any
issuance of Permitted Cure Securities pursuant to Section 7.02, the
aggregate amount of all cash received by members of the Allied Group in
respect of such issuance, net of underwriting commissions, discounts or
placement fees and other customary fees and expenses directly incurred
in connection therewith.
"Net Working Capital" means, at any date, (a) the Consolidated
current assets of Allied Waste and its Restricted Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the Consolidated current
liabilities of Allied Waste and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"Non-Cash Non-Recurring Charges" means, for any period, all
non-cash non-recurring charges and all other non-cash charges (to the extent
such other non-cash charges are not incurred in the ordinary course of business
or do not constitute ordinary course operating expenses), incurred during such
period, including, without limitation, all non-cash charges in respect of
Permitted Acquisitions or Indebtedness permitted under Section 6.01, all
non-cash charges in respect of goodwill impairment, all accruals for closure and
post-closure liabilities and all non-cash losses in respect of asset sales
during such period, but excluding accruals for bad debt and accruals for
expenses incurred in the ordinary course of business during such period (it
being understood that charges shall be deemed
27
non-cash charges until the period in which cash disbursements attributable to
such charges are made, at which point such charges shall be deemed cash charges;
provided that, for purposes of this definition, Allied Waste shall be required
to monitor actual cash disbursements only for those non-cash charges that exceed
$1,000,000 individually and $10,000,000 in the aggregate in any fiscal year).
"Non-Cash Non-Recurring Gains" means, for any period, all
non-cash non-recurring gains and all other non-cash gains (to the extent such
other non-cash gains are not realized in the ordinary course of business or do
not constitute ordinary course operating income), realized during such period,
including, without limitation, all non-cash gains in respect of Permitted
Acquisitions or Indebtedness permitted under Section 6.01 and all non-cash gains
in respect of asset sales during such period.
"Non-Cash-Pay" means:
(a) with respect to any Preferred Stock, that such Preferred
Stock is not Cash-Pay Preferred Stock; and
(b) with respect to any Indebtedness or Equity Interest (other
than Preferred Stock), that such Indebtedness or Equity Interest does
not require any cash payments (whether in respect of principal,
interest, dividends, redemption or repurchase) to be made thereon or in
respect thereof on or prior to the Term Loan Maturity Date (other than
upon the occurrence of a change of control of the issuer or any of its
affiliates), whether by operation of a sinking fund or otherwise.
"Non-Core Asset Sales" means sales of assets in non-core
markets made after the Restatement Effective Date and on or prior to December
31, 2004, resulting in aggregate Net Available Proceeds not in excess of
$300,000,000.
"Non-Shared Collateral Pledge Agreement" means the Amended and
Restated Non-Shared Collateral Pledge Agreement, substantially in the form of
Exhibit D, among Allied Waste, the Borrower, Subsidiary Loan Parties (other than
BFI and its Subsidiaries) and the Collateral Agent for the benefit of the
Secured Parties, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of this Agreement.
"Non-Shared Collateral Security Agreement" means the Amended
and Restated Non-Shared Collateral Security Agreement, substantially in the form
of Exhibit E, among the Borrower, Allied Waste, Subsidiary Loan Parties (other
than BFI and its Subsidiaries) and the Collateral Agent for the benefit of the
Secured Parties, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of this Agreement.
"Obligations" means (i) the obligations of the Borrower
hereunder to pay the principal of, premium, if any, and interest on the Loans
and LC Disbursements and all other monetary obligations, including fees, costs,
expenses, indemnities and penalties, whether primary, secondary, direct,
contingent, fixed or otherwise, of the
28
Borrower to the Lenders in their capacities as such under this Agreement or any
other Loan Document, (ii) all other "Obligations", as such term is defined in
the Non-Shared Collateral Security Agreement and (iii) all obligations of Loan
Parties under the Parent Guarantee Agreement, Subsidiary Guarantee Agreement,
Security Agreements and Pledge Agreements.
"Optional Repurchase" means, with respect to any outstanding
Indebtedness, any optional or voluntary repurchase, redemption or prepayment
made in cash of such Indebtedness, the related payment in cash of accrued
interest to the date of such repurchase, redemption or prepayment on the
principal amount of such Indebtedness repurchased, redeemed or prepaid, the
payment in cash of associated premiums (whether voluntary or mandatory) on such
principal amount and the cash payment of other fees and expenses incurred in
connection with such repurchase, redemption or prepayment.
"Original Credit Agreement" means this Agreement, including
all amendments and waivers hereof effective prior to the Restatement Effective
Date, as in effect immediately prior to the Restatement Effective Date.
"Original Tranche C Term Loans" means the Tranche C Term Loans
(as such term was defined in the First Amendment) made on the First Amendment
Effective Date.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales or property or similar taxes,
charges or similar levies arising from any payment made under any Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
any Loan Document.
"Parent Guarantee Agreement" means the Amended and Restated
Parent Guarantee Agreement, substantially in the form of Exhibit F, made by
Allied Waste in favor of the Administrative Agent for the benefit of the Secured
Parties, as amended, supplemented or otherwise modified from time to time in
accordance with the provisions of this Agreement.
"Participant" has the meaning specified in Section 9.04(c)(i).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificates" means certificates in the form of
Exhibit G-1 and Exhibit G-2 or any other form approved by the Collateral Agent.
"Permitted Acquisition" means one or more acquisitions by the
Borrower or any other Loan Party of a business unit (with any associated assets)
located in the United States or capital stock or other ownership interests
(other than Margin Stock) of any other Person organized under the laws of the
United States, any state thereof or the District of Columbia; provided that:
29
(1) in the case of an acquisition of assets, such assets are
to be used, and in the case of an acquisition of capital stock or other
ownership interests, the Person so acquired is predominately engaged
in, the same line of business as Allied Waste and its Restricted
Subsidiaries or other business activities incidental or related
thereto;
(2) the business acquired conducts its business exclusively in
the United States;
(3) in connection with any such acquisition involving a merger
of the Borrower or any Subsidiary Loan Party, (x) the Borrower or a
wholly owned Subsidiary of the Borrower (provided that such wholly
owned Subsidiary is then, or as a result of such acquisition becomes, a
Subsidiary Loan Party concurrently with the consummation of any such
acquisition) shall be the survivor (and if any such acquisition
involves a merger of the Borrower and one of its Subsidiaries, the
Borrower shall be the survivor) and (y) after such merger, Allied Waste
shall own, directly or indirectly, beneficially and of record, Equity
Interests in such Subsidiary Loan Party representing 100% of each of
the aggregate ordinary voting power and the aggregate equity value
represented by the issued and outstanding Equity Interests in such
Subsidiary Loan party and the Borrower shall continue to be a wholly
owned Subsidiary of Allied Waste;
(4) immediately prior to and after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing;
(5) in the case of an acquisition of capital stock or other
ownership interests of a Person, the Borrower or a Subsidiary Loan
Party acquires 100% of the capital stock or other ownership interests
of such Person and pledges such capital stock or other ownership
interests pursuant to a Pledge Agreement; and
(6) with respect to such acquisition, the relevant Loan
Parties (including any Specified Subsidiary acquired in connection with
such acquisition) shall enter into Guarantee Agreements and Security
Documents pursuant to Section 5.10 with respect to the Acquired
Business (and any newly acquired Specified Subsidiary) and no
agreement, instrument, law, regulation, order or decree applicable to
such Specified Subsidiary or Acquired Business shall prohibit, restrain
or limit its ability to enter into or perform any such Guarantee
Agreement or Security Document or to pledge its assets and properties
pursuant to any Security Document;
provided, however, that the prior written consent of the Required Lenders has
been obtained with respect to any such acquisition (whether effected in one
transaction or a series of related transactions) with respect to which the
aggregate Acquisition Consideration exceeds 40% of Consolidated EBITDA for the
Rolling Period ending on the last day of the most recent fiscal quarter with
respect to which financial statements have been delivered pursuant to Section
5.04.
30
"Permitted Cure Security" means a Non-Cash Pay equity security
of Allied Waste issued pursuant to Section 7.02.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.03;
(b) carriers', warehousemen's, landlord's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising
in the ordinary course of business and securing obligations that are
not overdue by more than 90 days or are being contested in compliance
with Section 5.03;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
incurred in the ordinary course of business;
(e) deposits securing liabilities to insurance carriers under
insurance or self-insurance arrangements;
(f) judgment liens in respect of judgments or awards in
respect of which Allied Waste or its Subsidiaries are in good faith
prosecuting an appeal or proceedings for review and in respect of which
a stay of execution pending such appeal or proceedings for review shall
have been obtained; provided that Allied Waste shall have set aside on
its books adequate reserves in accordance with GAAP with respect
thereto;
(g) easements, ground leases, zoning restrictions, building
codes, rights-of-way or defects or irregularities in title and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of Allied Waste or any
Restricted Subsidiary;
(h) statutory and common law landlord liens;
(i) leases or subleases to other Persons of properties or
assets owned or leased by the Borrower or a Restricted Subsidiary; and
(j) Liens arising from the sale of overdue accounts receivable
for purposes of collection in the ordinary course of business,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
31
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) Investments in commercial paper maturing within 360 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) Investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) demand deposits made in the ordinary course of business
and consistent with the Borrower's customary cash management policy in
any domestic office of any commercial bank organized under the laws of
the United States of America or any state thereof;
(e) insured deposits issued by commercial banks of the type
described in clause (d) above;
(f) collateralized repurchase obligations with a term of not
more than 90 days for, and secured by, underlying securities of the
types described in clauses (a) through (c) above entered into with a
bank meeting the qualifications described in clause (c) above;
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of
clause (a) through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"Permitted Public Notes Refinancing Transaction" means the
issuance and sale for cash from time to time on or after August 1,
2003, of Qualifying Senior Secured Indebtedness and/or Qualifying
Senior Unsecured Indebtedness pursuant to and subject to the
limitations set forth in Section 6.01(a)(xxiii), the Net Available
Proceeds of which are intended by the Borrower to be applied to the
Optional Repurchase of up to an equal principal amount of Refinanceable
Public Notes; provided, however, that (i) a Financial Officer provides
a written notice to the Administrative Agent, not later than the later
of the Third Amendment Effective Date and the date two Business Days
following
32
the date on which any such Qualifying Senior Secured Indebtedness or
Qualifying Senior Unsecured Indebtedness, as the case may be, is
issued, specifying in reasonable detail the material economic terms on
which such Optional Repurchase with the Net Available Proceeds thereof
is proposed to be effected and certifying the Borrower's intention to
utilize the Net Available Proceeds of such issuance to consummate such
Optional Repurchase not more than 150 days after the date on which such
Qualifying Senior Secured Indebtedness or Qualifying Senior Unsecured
Indebtedness, as the case may be, is issued and (ii) the full amount of
the Net Available Proceeds from the issuance of such Qualifying Senior
Secured Indebtedness and Qualifying Senior Unsecured Indebtedness, as
the case may be (other than amounts theretofore applied to the Optional
Repurchase of Refinanceable Public Notes) is, not later than the date
that is 150 days after the date of the issuance thereof, applied to the
prepayment of Term Loans pursuant to Section 2.11.
"Permitted Refinancing Transaction" means (i) the incurrence
of Refinancing Indebtedness by means of the extension or renewal of Refinanced
Debt not involving the issuance and sale of Refinancing Indebtedness or (ii) the
issuance and sale for cash of Refinancing Indebtedness the Net Available
Proceeds of which are intended by the Borrower to be applied to the repurchase,
redemption, repayment or, only with respect to not more than $25,000,000
aggregate principal amount of each class, series or issuance of Refinanced Debt
that is Acquired Indebtedness, defeasance of specified Refinanced Debt;
provided, however, that in the case of the issuance of Refinancing Indebtedness
referred to in clause (ii) of this definition, (x) a Financial Officer provides
a written notice to the Administrative Agent, not later than the second Business
Day following the date on which such Refinancing Indebtedness is issued,
specifying in reasonable detail the material economic terms of such Refinancing
Indebtedness and the date of issuance thereof, identifying the Indebtedness
intended to be repurchased, redeemed, repaid or defeased with such Net Available
Proceeds and the material economic terms on which such refinancing is to be
effected, and certifying the Borrower's intention to consummate such repurchase,
redemption, repayment or defeasance not more than 90 days after the date on
which such Refinancing Indebtedness is issued and (y) the full amount of the Net
Available Proceeds from the issuance of such Refinancing Indebtedness (other
than amounts therefor applied to the repayment, redemption, repurchase or
defeasance of the specified Refinanced Debt) is, not later than the date that is
90 days after the date of issuance of such Refinancing Indebtedness, applied on
such date to the prepayment of Term Loans pursuant to Section 2.11.
"Permitted Subordinated Debt" means Indebtedness of the
Borrower (and Guarantees of such Indebtedness by Restricted Subsidiaries of the
Borrower and by Allied Waste), the payment of which is subordinated to the
Borrower's, Allied Waste's or such Restricted Subsidiary's obligations in
respect of the Obligations, provided that such Permitted Subordinated Debt (a)
accrues interest at a rate determined in good faith by the board of directors of
the Borrower to be a market rate of interest for such Permitted Subordinated
Debt at the time of issuance thereof, (b) is created under agreements or
instruments that do not, as determined in good faith by the board of directors
of the Borrower, (i) impose covenants on the Borrower and the
33
Borrower's Subsidiaries, (ii) contain a definition of change of control or (iii)
contain events of default and other provisions, in each case materially more
restrictive than the covenants imposed in, the change of control definition used
in and the events of default and other provisions contained in this Agreement,
(c) provides that no scheduled principal payments are due on such Permitted
Subordinated Debt on any date on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) is unsecured,
(e) is not guaranteed by Allied Waste or any Subsidiary unless (i) in the case
of a Subsidiary, such Subsidiary also has Guaranteed the Obligations and (ii) in
the case of Allied Waste or any such Restricted Subsidiary, such Guarantee of
such Permitted Subordinated Debt is subordinated to such Guarantee of the
Obligations on terms no less favorable to the Lenders than the subordination
provisions of the 10% Notes, (f) does not by its terms require the maintenance
or achievement of any financial performance standards more restrictive than
those contained herein, as determined in good faith by the board of directors of
the Borrower, other than as a condition to taking specified action and (g) the
terms of subordination of such Permitted Subordinated Debt are no less favorable
to the Lenders then the subordination provisions set forth in the 10% Note
Documents (as in effect on the Restatement Effective Date).
"Permitted Transferee" means, with respect to any Person: (a)
any Affiliate of such Person; (b) any investment manager, investment advisor, or
constituent general partner of such Person; or (c) any investment fund,
investment account, or investment entity that is organized by such Person or its
Affiliates and whose investment manager, investment advisor, or constituent
general partner is such Person or a Permitted Transferee of such Person.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means the Non-Shared Collateral Pledge
Agreement and the Shared Collateral Pledge Agreement.
"Predecessor Loan Party" has the meaning assigned to such term
in Section 3.02.
"Predecessor Security Documents" means the "Security
Documents", as such term is defined herein immediately prior to the amendment
and restatement hereof.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a preference or
priority, in respect of dividends or distributions upon liquidation, over some
other class of capital stock issued by such corporation.
34
"Prepayment Event" means:
(a) any Asset Sale (including pursuant to a Sale and Leaseback
Transaction) of any property or asset of Allied Waste or any Restricted
Subsidiary, other than, (i) Asset Sales effected between Loan Parties
permitted by Section 6.06(f), (ii) any Asset Sale made after the date
of this Agreement resulting in Net Available Proceeds not exceeding
$25,000,000, (iii) Securitizations permitted by Sections 6.05 and 6.06
hereunder and (iv) Non-Core Asset Sales;
(b) any Casualty Event with respect to any property or asset
of Allied Waste or any Restricted Subsidiary, to the extent that the
Net Available Proceeds thereof are not applied to rebuilding, repairing
or replacing such property or asset within 365 days of such Casualty
Event, as provided in the definition of "Net Available Proceeds";
(c) the incurrence by Allied Waste, the Borrower or any
Restricted Subsidiary of any Indebtedness for borrowed money (other
than Refinancing Indebtedness permitted hereby to the extent the Net
Available Proceeds thereof are used to repay, redeem, repurchase or,
subject to the limitation set forth in the definition of Refinancing
Indebtedness, defease Indebtedness other than the Obligations) pursuant
to (A) Section 6.01(a)(xx), except to the extent the Net Available
Proceeds thereof are used to make Permitted Acquisitions, Investments
(other than Permitted Investments) permitted by Section 6.05 or Capital
Expenditures permitted under Section 6.15 or (B) Section 6.01(a)(xiii),
(xiv), (xv), (xviii) or (xxiii); or
(d) any Asset Sale consisting of a Securitization permitted by
Sections 6.05 and 6.06 hereunder.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Issuing Bank" means any Issuing Bank at such times
as such Issuing Bank has issued and outstanding Letters of Credit under this
Agreement exceeding $50,000,000 in the aggregate, or such lesser amount as may
be agreed upon by the Administrative Agent, the Borrower and any applicable
Issuing Bank.
"Properties" shall have the meaning assigned to such term in
Section 3.16(a).
"Qualifying Senior Secured Indebtedness" means Senior Secured
Indebtedness issued after the Restatement Effective Date which does not mature
and has no scheduled amortization of principal prior to April 15, 2010.
"Qualifying Senior Unsecured Indebtedness" means senior
unsecured Indebtedness of the Borrower, which may be Guaranteed on an
35
unsecured basis by the Subsidiary Loan Parties and by Allied Waste, issued after
August 1, 2003, which does not mature and has no scheduled amortization of
principal prior to April 15, 2010, provided that such Qualifying Senior
Unsecured Indebtedness (a) accrues interest at a rate determined in good faith
by the board of directors of the Borrower to be a market rate of interest at the
time of issuance thereof, (b) is created under agreements or instruments that do
not, as determined in good faith by the board of directors of the Borrower, (i)
impose covenants on the Borrower and the Borrower's Subsidiaries, (ii) contain a
definition of change of control or (iii) contain events of default or other
provisions, in each case materially more restrictive than the covenants imposed
in, the change of control definition used in and the events of default and other
provisions contained in this Agreement, (c) is not Guaranteed by any Subsidiary
unless such Subsidiary has also Guaranteed the Obligations and (d) does not by
its terms require the maintenance or achievement of any financial performance
standards more restrictive than those contained herein, as determined in good
faith by the board of directors of the Borrower, other than as a condition to
taking specified action.
"Recapitalization" has the meaning assigned to such term in
the preamble of this Agreement.
"Refinanceable Indebtedness" means any long-term Indebtedness
for borrowed money of Allied Waste or any Restricted Subsidiary, including
Targeted Senior Secured Indebtedness, outstanding on the Restatement Effective
Date and having a scheduled maturity date on or prior to December 31, 2010.
"Refinanceable Public Notes" means Refinanceable Indebtedness
consisting of debt securities.
"Refinanced Debt" has the meaning assigned to such term in the
definition of "Refinancing Indebtedness".
"Refinancing Facility Amendment" has the meaning assigned to
such term in Section 2.21.
"Refinancing Facility Notice" has the meaning assigned to such
term in Section 2.21.
"Refinancing Indebtedness" means Indebtedness issued or
incurred (including by means of the extension or renewal of existing
Indebtedness) to extend, renew or refinance existing Indebtedness ("Refinanced
Debt"); provided that (i) such extending, renewing or refinancing Indebtedness
is in an original aggregate principal amount not greater than the aggregate
principal amount of, and unpaid interest on, the Refinanced Debt plus the amount
of any premiums paid thereon and fees and expenses associated therewith, (ii)
such Indebtedness (x) does not mature or require scheduled payments of principal
prior to April 15, 2010 and (y) has a later maturity and a longer weighted
average life than the Refinanced Debt, (iii) such Indebtedness bears a market
interest rate (as determined in good faith by the board of directors of the
Borrower) as of the time of its issuance or incurrence, (iv) if the Refinanced
Debt or any Guarantees thereof are subordinated to the Obligations, subordinated
to the Obligations on
36
terms no less favorable in any significant respect to the holders of the
Obligations than the subordination terms of such Refinanced Debt or Guarantees
thereof (and no Loan Party that has not guaranteed such Refinanced Debt
guarantees such Indebtedness), (v) such Indebtedness contains covenants and
events of default and is benefited by Guarantees (if any) which, taken as a
whole, are determined in good faith by the board of directors of the Borrower to
be no less favorable to the Lenders than the covenants and events of default of
or Guarantees (if any) in respect of such Refinanced Debt, (vi) if such
Refinanced Debt or any Guarantees thereof are secured, such Indebtedness and any
Guarantees thereof are either unsecured or secured only by such assets as
secured the Refinanced Debt and Guarantees thereof and (vii) if such Refinanced
Debt and any Guarantees thereof are unsecured, such Indebtedness and Guarantees
thereof are also unsecured.
"Refinancing Term Loans" has the meaning assigned to such term
in Section 2.21.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, trustees and advisors of such Person and such Person's Affiliates.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the Environment.
"Relevant Percentage" means (a) if the Leverage Ratio is
greater than or equal to 4.00 to 1.00, 100%; (b) if the Leverage Ratio is less
than 4.00 to 1.00 but greater than or equal to 3.50 to 1.00, 75%; (c) if the
Leverage Ratio is less than 3.50 to 1.00 but greater than or equal to 3.00 to
1.00, 50%; (d) if the Leverage Ratio is less than 3.00 to 1.00 but greater than
or equal to 2.50 to 1.00, 25%; and (e) if the Leverage Ratio is less than 2.50
to 1.00, 0.0%; provided that, (x) in the case of a Prepayment Event set forth in
clause (a) of the definition of "Prepayment Event", the Leverage Ratio shall be
determined as of the final day of the fiscal quarter most recently ended
immediately prior to the date of consummation of such Asset Sale; (y) in the
case of a Prepayment Event set forth in clause (b) of the definition of
"Prepayment Event", the Leverage Ratio shall be determined as of the date
immediately prior to the date of the receipt or deemed receipt of Net Available
Proceeds of such event; and (z) in the case of a Prepayment Event set forth in
clause (c) of the definition of "Prepayment Event", the Leverage Ratio shall be
determined on a pro forma basis as of the date of the relevant incurrence of
Indebtedness, after giving effect to such incurrence.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Required Application" means any application of Net Available
Proceeds to (i) the prepayment of Loans, (ii) the repayment, redemption or
repurchase of Indebtedness other than Loans permitted by
37
Section 2.11 which, if not effected, would require a prepayment of Loans under
Section 2.11(c)(iv) or (v) or (iii) the acquisition of real property, equipment
or other tangible assets (including pursuant to a Permitted Acquisition), in
each case, which is required (or in the case of clause (ii) or (iii) above,
specifically permitted) by the provisions of Section 2.11(c).
"Required Lenders" means, at any time, Lenders having
Revolving Exposures, Term Loans, Tranche A LC Exposure, unused Revolving
Commitments and Excess Tranche A Credit-Linked Deposits representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans, Tranche
A LC Exposure, unused Revolving Commitments and Excess Tranche A Credit-Linked
Deposits at such time.
"Responsible Officer" means any executive officer of Allied
Waste or the Borrower (including, without limitation, any Financial Officer).
"Restatement Effective Date" means the date on which the
conditions specified in Section 4.01 are satisfied (or waived in accordance with
Section 9.02).
"Restatement Term Loans" means term loans made hereunder on
the Restatement Effective Date.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Allied Waste, the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in Allied Waste,
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such Equity Interests in Allied Waste, the Borrower or any Subsidiary.
"Restricted Subsidiary" means the Borrower, BFI and each other
Subsidiary of Allied Waste that has not been designated by the Borrower as an
Unrestricted Subsidiary pursuant to and in compliance with Section 6.16. On the
Restatement Effective Date, all Subsidiaries of Allied Waste are Restricted
Subsidiaries, other than those Subsidiaries indicated as Unrestricted
Subsidiaries on Schedule 3.08.
"Revolving Availability Period" means the period from and
including the Restatement Effective Date to but excluding the earlier of the
Revolving Maturity Date and the date of termination of the Revolving
Commitments.
"Revolving Commitment" means, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving Loans and to
acquire participations in Revolving Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Revolving Lender's Revolving Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Revolving
Lender pursuant to Section 9.04. The amount of each Revolving Lender's
38
Revolving Commitment on the Restatement Effective Date is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Revolving
Lender shall have assumed its Revolving Commitment, as applicable. The aggregate
amount of the Revolving Lenders' Revolving Commitments on the Restatement
Effective Date is $1,500,000,000.
"Revolving Exposure" means, with respect to any Revolving
Lender at any time, the sum of the outstanding principal amount of such
Revolving Lender's Revolving Loans and its Revolving LC Exposure and Swingline
Exposure at such time.
"Revolving LC Disbursement" means a payment made by an Issuing
Bank pursuant to a Revolving Letter of Credit.
"Revolving LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Revolving Letters of Credit at such
time plus (b) the aggregate amount of all Revolving LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Revolving LC Exposure of any Revolving Lender at any time shall be its
Applicable Percentage of the total Revolving LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Letters of Credit" means, at any time, any Letter
of Credit issued pursuant to Section 2.05 of this Agreement, other than Tranche
A Letters of Credit.
"Revolving Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Revolving Maturity Date" means January 15, 2008.
"RMI Funding Operations" means the loan or advance of funds by
the Borrower or other Restricted Subsidiaries to the RMI Subsidiaries (or by the
RMI Subsidiaries to the Borrower or other Restricted Subsidiaries) at such times
and in such amounts as are necessary to provide for the payment by the RMI
Subsidiaries of Assumed RMI Liabilities when and as they become due and payable.
"RMI Intercompany Notes" means the promissory notes of the
Borrower and/or other Restricted Subsidiaries held by the RMI Subsidiaries on
the Third Amendment Effective Date.
"RMI Subsidiaries" means collectively, (i) BFI Energy Systems
of Boston, Inc., (ii) BFI Services Group, Inc., (iii) BFI Trans River (LP),
Inc., (iv) BFI Energy Systems of Plymouth, Inc., (v) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries
Europe, Inc., (vi) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Asia Pacific, Inc. and (vii)
Consolidated Processing, Inc.
"Rolling Period" means any period of four consecutive fiscal
quarters of Allied Waste.
39
"Sale and Leaseback Transaction" means any arrangement whereby
Allied Waste, the Borrower or a Subsidiary shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and in a related transaction rent or lease such property or other
property from the buyer or transferee of the sold or transferred property that
it intends to use for substantially the same purpose or purposes as the property
sold or transferred.
"Second Amendment" means the Second Amendment and Restatement,
dated as of November 20, 2003, to this Agreement.
"Second Amendment Effective Date" means the date on which the
Second Amendment became effective in accordance with Section 4 thereof.
"Secured Parties" has the meaning assigned to such term in the
Non-Shared Collateral Security Agreement.
"Securitization" means any transaction or series of
transactions entered into by the Borrower or any Restricted Subsidiary pursuant
to which the Borrower or such Restricted Subsidiary, as the case may be, sells,
conveys or otherwise transfers to a Securitization Vehicle Securitization Assets
of the Borrower or such Restricted Subsidiary (or grants a security interest in
such Securitization Assets transferred or purported to be transferred to such
Securitization Vehicle), and which Securitization Vehicle finances the
acquisition of such Securitization Assets (i) with proceeds from the issuance of
Third Party Securities, (ii) with Sellers' Retained Interests or (iii) with
proceeds from the sale or collection of Securitization Assets previously
purchased by such Securitization Vehicle.
"Securitization Assets" means any accounts receivable owed to
the Borrower or any Restricted Subsidiary (whether now existing or arising or
acquired in the future) arising in the ordinary course of business from the sale
of goods or services, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in respect
of such accounts receivable, all proceeds of such accounts receivable and other
assets (including contract rights) which are of the type customarily transferred
in connection with securitizations of accounts receivable and which are sold,
transferred or otherwise conveyed by the Borrower or a Restricted Subsidiary to
a Securitization Vehicle in connection with a Securitization permitted by
Sections 6.05 and 6.06.
"Securitization Vehicle" means a Person that is a direct
wholly owned Subsidiary of the Borrower or a Restricted Subsidiary formed for
the purpose of effecting one or more Securitizations to which the Borrower or
Restricted Subsidiaries transfer Securitization Assets and which, in connection
therewith, issues Third Party Securities; provided that (i) such Securitization
Vehicle shall engage in no business other than the purchase of Securitization
Assets pursuant to Securitizations permitted by Sections 6.05 and 6.06, the
issuance of Third Party Securities or other funding of such Securitizations and
any activities reasonably related thereto, (ii) such Securitization Vehicle is
an Unrestricted Subsidiary under
40
this Agreement and an "Unrestricted Subsidiary" under each of the AWNA Senior
Note Indenture and the 2001 Indenture and (iii) such Securitization Vehicle
shall not be a Subsidiary of BFI or any Restricted Subsidiary that is or becomes
a party to the Shared Collateral Pledge Agreement or the Shared Collateral
Security Agreement.
"Security Agreements" means the Non-Shared Collateral Security
Agreement and the Shared Collateral Security Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with the provisions of
this Agreement.
"Security Documents" means the Security Agreements, the Pledge
Agreements, the Subsidiary Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Collateral Trust Agreement and each other security
agreement or other instrument or document executed and delivered pursuant to
Section 5.10 to secure any of the Obligations, as amended, supplemented or
otherwise modified from time to time in accordance with the provisions of this
Agreement.
"Sellers' Retained Interests" means the debt or equity
interests held by the Borrower or any Restricted Subsidiary in a Securitization
Vehicle to which Securitization Assets have been transferred in a Securitization
permitted by Sections 6.05 and 6.06, including any such debt or equity received
in consideration for the Securitization Assets transferred.
"Senior Indebtedness" means the following obligations, whether
outstanding on the date of this Agreement or thereafter issued:
(i) all obligations consisting of the Bank Indebtedness;
(ii) all obligations consisting of the principal of and
premium, if any, and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower regardless of whether
post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Borrower for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which the Borrower is responsible or liable;
(iii) all Capitalized Lease Obligations of the Borrower;
(iv) all obligations of the Borrower (A) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction, (B) under interest rate swaps, caps, collars,
options and similar arrangements and foreign currency ▇▇▇▇▇▇ entered
into in respect of any obligations described in clauses (i), (ii) and
(iii) or (C) issued or assumed as the deferred purchase price of
property and all conditional sale obligations of the Borrower and all
obligations of the Borrower under any title retention agreement;
(v) all obligations of other persons of the type referred to
in clauses (ii), (iii) or (iv) and all dividends of other
41
persons for the payment of which, in either case, the Borrower is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including guarantees of such obligations and dividends; and
(vi) all obligations of the Borrower consisting of
modifications, renewals, extensions, replacements and refundings of any
obligations described in clauses (i), (ii), (iii), (iv) or (v);
provided, however, that, notwithstanding anything to the contrary set forth
above, Senior Indebtedness shall not include (1) any obligation of the Borrower
to any Subsidiary, (2) any liability for Federal, state, local or other taxes
owed or owing by the Borrower, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any Junior Indebtedness
or any indebtedness, guarantee or obligation of the Borrower that is subordinate
or junior to any other indebtedness, guarantee or obligation of the Borrower or
(5) any Indebtedness that is incurred in violation of this Agreement.
"Senior Note Offering" has the meaning assigned to such term
in the preamble of this Agreement.
"Senior Secured Indebtedness" means Indebtedness of Allied
Waste or any Subsidiary secured by the Collateral under (and as defined in) the
Shared Collateral Security Agreement and the Shared Collateral Pledge Agreement
on a pari passu basis with the Obligations.
"7.88% Notes" means $875,000,000 aggregate principal amount of
senior notes of the Borrower due January 1, 2009 issued pursuant to the terms of
the AWNA Senior Note Indenture.
"Shared Collateral Pledge Agreement" means the Amended and
Restated Shared Collateral Pledge Agreement, substantially in the form of
Exhibit H, among BFI, Subsidiaries of BFI that are Subsidiary Loan Parties and
the Collateral Trustee for the benefit of the Shared Collateral Secured Parties,
as amended, supplemented or otherwise modified from time to time in accordance
with the provisions of this Agreement.
"Shared Collateral Secured Parties" means the "Secured
Parties" as defined in the Shared Collateral Security Agreement.
"Shared Collateral Security Agreement" means the Amended and
Restated Shared Collateral Security Agreement, substantially in the form of
Exhibit I, among BFI, Subsidiaries of BFI that are Subsidiary Loan Parties and
the Collateral Trustee for the benefit of the Shared Collateral Secured Parties,
as amended, supplemented or otherwise modified from time to time in accordance
with the provisions of this Agreement.
"S&P" means Standard & Poor's.
42
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person on a going concern basis is not less than the
amount that will be required to pay the probable liability of such Person on its
Indebtedness as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur Indebtedness or liabilities
beyond such Person's ability to pay as such Indebtedness and liabilities mature
and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small amount of capital. The portion of
contingent liabilities of any Person at any time that shall be included for
purposes of the above determinations shall be the amount of such contingent
liabilities that, in light of all facts and circumstances existing at such time,
could reasonably be expected to become actual matured liabilities of such
Person.
"Specified Subsidiary" means a Domestic Subsidiary of Allied
Waste or the Borrower (including Domestic Subsidiaries formed or acquired
pursuant to Permitted Acquisitions), but in any event excluding Insurance
Subsidiaries.
"Sponsor Preferred Stock" means shares of Series A Preferred
Stock of Allied Waste issued and sold to the Sponsors on the Effective Date and
any shares of the same class of such Preferred Stock issued in payment of
dividends on outstanding shares of such class of Preferred Stock.
"Sponsors" means Blackstone, Apollo and the other holders of
the Sponsor Preferred Stock on the Effective Date.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentage shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation,
43
limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
by the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Allied Waste.
"Subsidiary Guarantee Agreement" means the Amended and
Restated Subsidiary Guarantee Agreement, substantially in the form of Exhibit J,
made by the Subsidiary Loan Parties in favor of the Collateral Agent for the
benefit of the Secured Parties, as amended, supplemented or otherwise modified
from time to time in accordance with the provisions of this Agreement.
"Subsidiary Loan Party" means each Specified Subsidiary,
including BFI.
"Swingline Commitment" means, as to any Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans, as set forth on
Schedule 2.01. The aggregate amount of Swingline Commitments on the Restatement
Effective Date is $50,000,000.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lenders" means JPMorgan Chase Bank and any other
Lender designated as a Swingline Lender in accordance with Section 2.04(d), in
each case in its capacity as a lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Targeted Senior Secured Indebtedness" means Senior Secured
Indebtedness outstanding on the Restatement Effective Date having a scheduled
maturity date prior to January 15, 2010.
"10% Note Documents" means the indenture dated as of July 30,
1999 among the Borrower, certain Subsidiaries and U.S. Bank Trust National
Association, as trustee, and all other instruments, agreements and other
documents evidencing or governing the 10% Notes or providing for any Guarantee
or other right in respect thereof.
"10% Notes" means $2,000,000,000 aggregate principal amount of
senior subordinated notes of the Borrower due August 1, 2009 issued pursuant to
the terms of the 10% Note Documents.
44
"Term Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan" means a Tranche B Term Loan, a Tranche C Term Loan
or a Tranche D Term Loan (or, as the context may require, any term loan made
hereunder prior to the Second Amendment Effective Date).
"Term Loan Commitment" means, with respect to each Term
Lender, the commitment of such Term Lender to make Tranche B Term Loans or
Tranche C Term Loans hereunder pursuant to Section 3 of the Second Amendment on
the Second Amendment Effective Date or to make Tranche D Term Loans pursuant to
Section 3 of the Third Amendment on the Tranche D Effective Date. The amount of
each Term Lender's Term Loan Commitment to make Tranche B Term Loans and Tranche
C Term Loans is set forth on Schedule A to the Second Amendment and to make
Tranche D Term Loans is set forth on Schedule A to the Third Amendment (or, in
either case, in the Assignment and Acceptance pursuant to which such Term Lender
assumed its Term Loan Commitment). The aggregate amount of the Term Loan
Commitments to make Tranche B Term Loans and Tranche C Term Loans on the Second
Amendment Effective Date was $1,185,000,000 and $250,000,000, respectively, and
the aggregate amount of Term Loan Commitments to make Tranche D Term Loans on
the Tranche D Effective Date was $150,000,000 or such amount as will be
subsequently specified by the Borrower in an aggregate amount not to exceed
$175,000,000.
"Term Loan Maturity Date" means January 15, 2010; provided,
however, that the Term Loan Maturity Date will automatically become (i) the date
that is six months prior to the stated maturity date of the 7.88% Notes, the 10%
Notes or the 8.50% Notes in the event that all the 7.88% Notes, all the 10%
Notes or all the 8.50% Notes, as the case may be, are not extended, renewed or
refinanced with Refinancing Indebtedness on or prior to the date which is six
months prior to the stated maturity date of such series of notes or (ii) January
15, 2008, in the event that all the 8.875% Notes are not extended, renewed or
refinanced with Refinancing Indebtedness on or prior to October 1, 2007 (it
being understood that the Term Loan Maturity Date will be the earliest date
required pursuant to clause (i) or (ii) in connection with any such failure to
extend, renew or refinance any notes specified in such clauses with Refinancing
Indebtedness prior to the dates specified in respect of such notes therein).
"Third Amendment" means the Third Amendment and Restatement,
dated as of March 30, 2004, to this Agreement.
"Third Amendment Effective Date" means the date on which the
Third Amendment became effective in accordance with Section 4 thereof.
"Third Party Securities" means, with respect to any
Securitization, notes, bonds or other debt instruments, beneficial interests in
a trust, undivided ownership interests in receivables or other securities issued
for cash consideration by the relevant Securitization Vehicle to banks,
financing conduits, investors or other financing sources (other than Allied
Waste and the Subsidiaries) the proceeds of which are used to finance, in whole
or in part, the purchase by such Securitization Vehicle of Securitization Assets
in a
45
Securitization. The amount of any Third Party Securities shall be deemed to
equal the aggregate principal, stated or invested amount of such Third Party
Securities which are outstanding at such time.
"Total Indebtedness" means, at any date, the sum (without
duplication) of:
(a) all Indebtedness (other than Indebtedness described in
clauses (e), (f) and (j) of the definition of the term "Indebtedness")
of members of the Allied Group which on such date would be required to
be reflected as liabilities for borrowed money on a Consolidated
balance sheet of Allied Waste and its Subsidiaries prepared as of such
date in accordance with GAAP;
(b) the face amount of Cash-Pay Preferred Stock of members of
the Allied Group outstanding on such date; and
(c) the aggregate principal, stated or invested amount of any
Third Party Securities outstanding at such time;
provided, however, that, notwithstanding anything to the contrary set forth in
this Agreement, the face amount of Sponsor Preferred Stock outstanding on such
date shall at no time be included in the determination of, and shall not
constitute, Total Indebtedness.
"Total Tranche A Credit-Linked Deposit" means, at any time,
the sum of all Tranche A Credit-Linked Deposits at such time, as the same may be
(i) reduced from time to time pursuant to Section 2.05(b)(iii)(B) or Section
2.08 and (ii) increased from time to time pursuant to Section 2.05(b)(iii).
"Tranche A Availability Period" means the period from and
including the Restatement Effective Date to but excluding the earlier of the
Tranche A Maturity Date and the date on which all of the Tranche A Credit-Linked
Deposits are returned to the Tranche A Lenders.
"Tranche A Credit-Linked Deposit" means, as to each Tranche A
Lender, the cash deposit made by such Lender pursuant to Section 3 of the Second
Amendment, as such deposit may be (a) reduced from time to time pursuant to
Section 2.05(b)(iii)(B) or Section 2.08, (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04 and
(c) increased from time to time pursuant to Section 2.05(b)(iii). The amount of
each Tranche A Lender's Tranche A Credit-Linked Deposit on the Second Amendment
Effective Date is set forth in Schedule A to the Second Amendment or in the
Assignment and Acceptance pursuant to which such Tranche A Lender shall have
acquired its Tranche A Credit-Linked Deposit, as applicable. The aggregate
amount of the Tranche A Credit-Linked Deposits on the Second Amendment Effective
Date is $200,000,000.
"Tranche A Credit-Linked Deposit Account" means the account
established by the Administrative Agent under its sole and exclusive control
maintained at the office of JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, designated as the "Tranche A Credit-Linked Deposit Account" that shall be
used solely to hold the Tranche A Credit-Linked Deposits.
46
"Tranche A LC Disbursement" means any payment made by an
Issuing Bank pursuant to a Tranche A Letter of Credit.
"Tranche A LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Tranche A Letters of Credit at such
time plus (b) the aggregate amount of all Tranche A LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Tranche A LC Exposure of any Tranche A Lender at any time shall be its
Applicable Percentage of the total Tranche A LC Exposure at such time.
"Tranche A Lender" means a Lender having a Tranche A
Credit-Linked Deposit.
"Tranche A Letters of Credit" means, at any time, Letters of
Credit in an amount equal to the lesser of (i) the Total Tranche A Credit-Linked
Deposit and (ii) the aggregate amount of outstanding Letters of Credit at such
time. Letters of Credit will from time to time be deemed to be Tranche A Letters
of Credit or Revolving Letters of Credit in accordance with the provisions of
Section 2.05(a).
"Tranche A Maturity Date" means the Term Loan Maturity Date.
"Tranche A Participation Fee" means the participation fee
payable to the Tranche A Lenders pursuant to Section 2.12(c).
"Tranche B Term Loan" means a New Tranche B Term Loan (as such
term is defined in the Second Amendment) made on the Second Amendment Effective
Date pursuant to Section 3 of the Second Amendment. Tranche B Term Loans are not
Incremental Term Loans hereunder.
"Tranche C Term Loan" means a New Tranche C Term Loan (as such
term is defined in the Second Amendment) made on the Second Amendment Effective
Date pursuant to Section 3 of the Second Amendment. Tranche C Term Loans are not
Incremental Term Loans hereunder.
"Tranche D Effective Date" means the date on which the Tranche
D Provisions, as such term is defined in the Third Amendment, became effective
in accordance with Section 4 thereof.
"Tranche D Term Loan" means a Loan made on the Tranche D
Effective Date pursuant to Section 3 of the Third Amendment. Tranche D Term
Loans are not Incremental Term Loans hereunder."
"Transactions" means (i) the Recapitalization and the other
transactions described in the preamble to this Agreement, (ii) the execution,
delivery and performance by the Borrower of this Agreement, the borrowing of
Loans and the use of proceeds thereof and (iii) the execution, delivery and
performance by each other Loan Party of each Loan Document to which it is a
party.
"2001 Indenture" means (i) one or more supplemental
indentures, dated on or after January 25, 2001, to the AWNA Senior Note
Indenture and (ii) any other indenture governing Senior Indebtedness entered
into on or after January 25, 2001.
47
"2001 Senior Notes" means senior secured notes of AWNA or
Allied Waste issued on or after January 25, 2001 pursuant to the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
provided that any 2001 Senior Notes issued on or after the Restatement Effective
Date do not have a maturity date or any scheduled amortization until after April
15, 2010.
"2003 Senior Notes" has the meaning assigned to such term in
the preamble of this Agreement.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code
(and any similar law) in effect in any applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary that has been
designated by the board of directors of the Borrower as an "Unrestricted
Subsidiary" pursuant to and in accordance with the provisions of Section 6.16.
Each of the Unrestricted Subsidiaries on the Restatement Effective Date is
identified on Schedule 3.08.
"Voting Stock" of any Person means capital stock of such
Person that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"wholly owned subsidiary" of any Person shall mean a
subsidiary of such Person of which securities (except for directors' qualifying
shares) or other ownership interests representing 100% of the ordinary voting
power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such Person or one or
more wholly owned subsidiaries of such Person or by such Person and one or more
wholly owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing" or "Term
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing"). SECTION 1.03. Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
48
words "include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation". The word "will" shall be construed to have the
same meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (f) all references to the "date hereof" or the
"date of this Agreement" shall be deemed to refer to July 21, 1999 and (g) all
references to "redemption" of Indebtedness shall be construed to include the
giving of any redemption notice with respect to such Indebtedness by the issuer
thereof and any deposit with the trustee for the holders of such Indebtedness,
not earlier than the date of such notice, of funds necessary to effect such
redemption, in each case pursuant to the indenture governing such Indebtedness.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, (a) each Term Lender has, pursuant to the Second
Amendment and/or the Third Amendment, agreed to make Term Loans to the
Borrower on the Second Amendment Effective Date and/or the Tranche D
Effective Date in an aggregate principal amount not exceeding its Term
Loan Commitments with respect to Term Loans to be made on such dates and
(b) each Revolving Lender agrees to make Revolving Loans to the Borrower
from time to time during the Revolving Availability Period in an
aggregate principal amount that will not
49
result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of
Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that
the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall comply with Section 2.17 and
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(c) At the commencement of each Interest Period for any new
Eurodollar Borrowing (but not any renewal or extension of any outstanding
Eurodollar Borrowing), such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000; provided that a
Eurodollar Borrowing may be in an aggregate amount that is equal to (i) the
entire unused balance of the total Revolving Commitments or (ii) the amount
required to reimburse any LC Disbursement as contemplated by Section 2.05(e), in
each case in the event that such entire unused balance or such required
reimbursement amount is less than $10,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $10,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 35 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a
50
Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 1:00 p.m., New York City time, on the day of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender severally agrees to
make Swingline Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal
amount of such Swingline Lender's outstanding Swingline Loans exceeding
its Swingline Commitment, (ii) the aggregate principal amount of
outstanding Swingline Loans exceeding $50,000,000 or (iii) the sum of the
total Revolving Exposures exceeding the total Revolving Commitments;
provided that such Swingline Lender may, but shall not be required to,
make a Swingline Loan to refinance an outstanding Swingline Loan. Within
the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by
51
telecopy), not later than 1:00 p.m., New York City time, on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan and the location and number of the Borrower's account to which
funds are to be disbursed, which account shall comply with the requirements of
Section 2.06. The Administrative Agent will promptly advise the Swingline
Lenders of any such notice received from the Borrower. Each Swingline Lender
shall make each Swingline Loan available to the Borrower (pro rata, in
accordance with the Swingline Commitments of the Swingline Lenders) by means of
a credit or wire transfer to the account specified in writing by the Borrower in
such notice (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on
the requested date of such Swingline Loan.
(c) Each Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the outstanding Swingline Loans made by such
Swingline Lender. Such notice shall specify the aggregate amount of Swingline
Loans in which Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Revolving
Lender, specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the applicable Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Swingline Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall promptly notify the Borrower in writing of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the applicable Swingline Lender. Any amounts received by any Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Lenders that shall have
made their payments pursuant to this paragraph and to such Swingline Lender, as
their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
52
(d) Addition of a Swingline Lender. A Revolving Lender may
become an additional Swingline Lender hereunder upon the delivery of (i) a
written agreement among the Borrower, the Administrative Agent, each Swingline
Lender and such Revolving Lender and (ii) an Assignment and Acceptance Agreement
(or Agreements, if more than one Swingline Lender) pursuant to Section 9.04(b)
with respect to an amount of Swingline Commitments and Swingline Loans to be
agreed upon between such Revolving Lender and each assigning Swingline Lender.
The Administrative Agent shall notify the Revolving Lenders of any such
additional Swingline Lender.
SECTION 2.05. Letters of Credit. (a) General. On the
Restatement Effective Date, the Existing Letters of Credit will
automatically, without any action on the part of any Person, be deemed to
be Letters of Credit issued hereunder for the account of the Borrower for
all purposes of this Agreement and the other Loan Documents. In addition,
subject to the terms and conditions set forth herein (including, with
respect to issuances of Tranche A Letters of Credit, Section 2.20), the
Borrower may request the issuance of (and the applicable Issuing Bank, as
specified by the Borrower, shall issue) (i) Tranche A Letters of Credit,
at any time and from time to time during the Tranche A Availability
Period, and (ii) Revolving Letters of Credit, at any time and from time
to time during the Revolving Availability Period, in each case for the
Borrower's own account or for the account of any other member of the
Allied Group (provided that the Borrower will be a co-applicant and a
co-obligor with respect to each Letter of Credit issued for the account
of any other member of the Allied Group), in a form reasonably acceptable
to the Administrative Agent and the relevant Issuing Bank. For purposes
hereof, (i) Letters of Credit shall at all times and from time to time be
deemed to be Tranche A Letters of Credit in the amount specified in the
definition of Tranche A Letters of Credit and be deemed to be Revolving
Letters of Credit only to the extent, and in an amount by which, the
aggregate amount of outstanding Letters of Credit exceeds such amount
specified in the definition of Tranche A Letters of Credit, (ii) drawings
under any Letter of Credit shall be deemed to have been made under
Revolving Letters of Credit for so long as, and to the extent that, there
are any undrawn Revolving Letters of Credit outstanding (and thereafter
shall be deemed to have been made under Tranche A Letters of Credit) and
(iii) any Letter of Credit that expires or terminates will be deemed to
be a Revolving Letter of Credit, for so long as, and to the extent that,
there are outstanding Revolving Letters of Credit immediately prior to
such expiration or termination; provided, however, that, at any time
during which an Event of Default shall have occurred and be continuing,
(A) Letters of Credit shall be deemed to be Revolving Letters of Credit
and Tranche A Letters of Credit, (B) drawings under Letters of Credit
shall be deemed to have been made under Revolving Letters of Credit and
Tranche A Letters of Credit and (C) any Letter of Credit that expires or
terminates shall be deemed to be a Revolving Letter of Credit and a
Tranche A Letter of Credit, in each case pro rata based upon (1) the
total Revolving Commitments at such time and (2) the sum of the Total
Tranche A Credit-Linked Deposit and the amount of the Total Tranche A
Credit-Linked Deposit that shall have been applied to reimburse
outstanding Tranche A LC Disbursements at such time. To the extent
necessary to implement the foregoing, the identification of a Letter of
Credit as a Revolving Letter of Credit or a Tranche A Letter of
53
Credit may change from time to time and a portion of a Letter of Credit
may be deemed to be a Tranche A Letter of Credit and the remainder be
deemed to be a Revolving Letter of Credit. Notwithstanding the foregoing,
the entire face amount of any Letter of Credit with an expiration date
after the Revolving Maturity Date shall at all times be deemed to be a
Tranche A Letter of Credit, subject to the limitations set forth in
clause (i) of the third sentence of this paragraph (a). In the event of
any inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the
Borrower with, an Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the relevant Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with subparagraph
(i) of this Section), the amount of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by an
Issuing Bank, the Borrower (and any other member of the Allied Group for whose
account such Letter of Credit is issued) shall also submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (x) the LC
Exposure shall not exceed the sum of the total Revolving Commitments and the
Total Tranche A Credit-Linked Deposit, (y) the total Revolving Exposures shall
not exceed the total Revolving Commitments and (z) the Tranche A LC Exposure
shall not exceed the Total Tranche A Credit-Linked Deposit.
(i) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (other than any
Existing Letter of Credit having a later expiration date), or, in the
case of any renewal or extension thereof, one year after such renewal
or extension and (ii) (A) with respect to any Revolving Letter of
Credit, the date that is five Business Days prior to the Revolving
Maturity Date and (B) with respect to any Tranche A Letter of Credit,
the date that is five Business Days prior to the Tranche A Maturity
Date.
(ii) Participations. (A) By the issuance of a Revolving Letter
of Credit (or an amendment to a Revolving Letter of Credit increasing
the amount thereof) and without any further action on
54
the part of the applicable Issuing Bank or the Lenders, such Issuing
Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the applicable Issuing Bank, a participation in
such Letter of Credit (including each Existing Letter of Credit) equal
to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Lender's
Applicable Percentage of each Revolving LC Disbursement made by such
Issuing Bank and not reimbursed by the Borrower or any other account
party on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower or
any other account party for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Revolving Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Revolving Letter
of Credit or the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction
whatsoever.
(B) On the Second Amendment Effective Date, without any
further action on the part of any Issuing Bank or the Tranche A
Lenders, each Issuing Bank hereby grants to each Tranche A Lender, and
each Tranche A Lender hereby acquires from such Issuing Bank, a
participation in each Tranche A Letter of Credit equal to such Tranche
A Lender's Applicable Percentage of the aggregate amount available to
be drawn under such Tranche A Letter of Credit. The aggregate purchase
price for the participations of each Tranche A Lender in Tranche A
Letters of Credit shall equal the amount of the Tranche A Credit-Linked
Deposit of such Tranche A Lender. Each Tranche A Lender shall pay to
the Administrative Agent its Tranche A Credit-Linked Deposit in full on
the Second Amendment Effective Date. Each Tranche A Lender hereby
absolutely and unconditionally agrees that if an Issuing Bank makes a
Tranche A LC Disbursement which is not reimbursed by the Borrower on
the date due as provided in paragraph (b)(iii) of this Section, or is
required to refund any reimbursement payment in respect of a Tranche A
LC Disbursement to the Borrower for any reason, the Administrative
Agent shall reimburse the applicable Issuing Bank for the amount of
such Tranche A LC Disbursement from such Tranche A Lender's Tranche A
Credit-Linked Deposit on deposit in the Tranche A Credit-Linked Deposit
Account. In the event the Tranche A Credit-Linked Deposit Account is
charged by the Administrative Agent to reimburse the applicable Issuing
Bank for an unreimbursed Tranche A LC Disbursement, the Borrower shall
have the right, at any time prior to the Tranche A Maturity Date, to
pay over to the Administrative Agent in reimbursement thereof an amount
equal to the amount so charged, and such payment shall be deposited by
the Administrative Agent in the Tranche A Credit-Linked Deposit
Account. Each Tranche A Lender acknowledges and agrees that its
obligation to acquire and fund participations in respect of
55
Tranche A Letters of Credit pursuant to this subparagraph (B) is
unconditional and irrevocable and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension
of any Tranche A Letter of Credit or the occurrence and continuance of
a Default or the return of the Tranche A Credit Linked Deposits, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Without limiting the foregoing,
each Tranche A Lender irrevocably authorizes the Administrative Agent
to apply amounts of its Tranche A Credit-Linked Deposit as provided in
this subparagraph (B).
(iii) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying (or causing any other account
party in respect of such Letter of Credit to pay) to the Administrative
Agent an amount equal to such LC Disbursement not later than the
Business Day immediately following the day that the Borrower receives
notice that an LC Disbursement has been made; provided that, if such LC
Disbursement is not less than $1,000,000, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.04 that such payment be financed with an ABR
Revolving Borrowing or Swingline Loan in an equivalent amount and, to
the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan.
(A) If the Borrower fails to make (or cause another
account party to make) any payment due under paragraph
(b)(iii) above with respect to a Revolving Letter of Credit
when due, the Administrative Agent shall notify each Revolving
Lender of the applicable Revolving LC Disbursement, the
payment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment
then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the relevant Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the
appropriate Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear. Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse
an Issuing Bank for any Revolving LC Disbursement (other than
the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not
relieve the Borrower (or any other account party in respect of
the relevant Revolving Letter
56
of Credit) of its obligation to reimburse such LC
Disbursement.
(B) If the Borrower fails to make (or cause another
account party to make) any payment due under paragraph
(b)(iii) above with respect to a Tranche A Letter of Credit,
the Administrative Agent shall notify each Tranche A Lender of
the applicable Tranche A LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof, and the Administrative Agent
shall promptly pay to the applicable Issuing Bank each Tranche
A Lender's Applicable Percentage of such Tranche A LC
Disbursement from such Tranche A Lender's Tranche A
Credit-Linked Deposit. Promptly following receipt by the
Administrative Agent of any payment by the Borrower in respect
of any Tranche A LC Disbursement, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank
or, to the extent payments have been made from the Tranche A
Credit-Linked Deposits, to the Tranche A Credit-Linked Deposit
Account to be added to the Tranche A Credit-Linked Deposits of
the Tranche A Lenders in accordance with their Applicable
Percentages. The Borrower acknowledges that each payment made
pursuant to this subparagraph (B) in respect of any Tranche A
LC Disbursement is required to be made for the benefit of the
distributees indicated in the immediately preceding sentence.
Any payment made from the Tranche A Credit-Linked Deposit
Account, or from funds of the Administrative Agent, pursuant
to this paragraph to reimburse an Issuing Bank for any Tranche
A LC Disbursement shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(iv) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (b)(iii) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of (1) any lack
of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (2) any draft or other
document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (3) payment by any Issuing Bank
under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit
(except as otherwise provided below), or (4) any other event or
circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder. Neither the
Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter
of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the
57
circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of
any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing
Bank; provided that the foregoing shall not be construed to excuse such
Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such
Issuing Bank's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of an Issuing
Bank (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon
such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(v) Disbursement Procedures. The applicable Issuing Bank
shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.
The applicable Issuing Bank shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether such Issuing Bank has made or will make
an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders or
Tranche A Lenders with respect to any such LC Disbursement.
(vi) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the
date that the Borrower (or any other account party) reimburses such LC
Disbursement, at (1) in the case of a Revolving LC Disbursement, the
rate per annum then applicable to ABR Revolving Loans and (2) in the
case of a Tranche A LC Disbursement, the rate per annum then applicable
to ABR Term Loans; provided that, if the Borrower fails to reimburse
(or cause another account party to reimburse) such LC Disbursement when
due pursuant to paragraph (b)(iii) of this Section, then Section
2.13(c) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the applicable Issuing Bank, except that interest
accrued on and after the date of
58
payment by any Revolving Lender pursuant to paragraph (b)(iii)(A) of
this Section or from the Tranche A Credit-Linked Deposit of any Tranche
A Lender pursuant to paragraph (b)(iii)(B) of this Section to reimburse
such Issuing Bank shall be for the account of such Lender to the extent
of such payment.
(vii) Addition and Replacement of an Issuing Bank. An Issuing
Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the
Revolving Lenders and the Tranche A Lenders of any such replacement of
an Issuing Bank. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b). From
and after the effective date of any such replacement, (1) the successor
Issuing Bank shall have all the rights and obligations of the relevant
Issuing Bank under this Agreement with respect to Letters of Credit to
be issued thereafter and (2) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement, but shall not be required to issue
additional Letters of Credit. A Revolving Lender may become an
additional Issuing Bank hereunder pursuant to a written agreement among
the Borrower, the Administrative Agent and such Revolving Lender. The
Administrative Agent shall notify the Revolving Lenders of any such
additional Issuing Bank. Notwithstanding the foregoing, the Borrower
shall not designate any Revolving Lender as an Issuing Bank hereunder
if, after giving effect thereto, there would be more than fifteen
Issuing Banks (other than Issuing Banks with no outstanding Letters of
Credit other than Existing Letters of Credit).
(viii) Cash Collateralization. If any Event of Default under
Section 7.01 (i), (ii), (vii)(A), (viii) or (ix) shall occur and be
continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity
of the Loans has been accelerated, Tranche A Lenders and Revolving
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower
described in clause (viii) or (ix) of Section 7.01. Each such deposit
shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the
59
Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent
not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent
of Tranche A Lenders and Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder
as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured
or waived. If the Borrower is required to provide an amount of cash
collateral hereunder pursuant to Section 2.11(b), such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower as
and to the extent that, after giving effect to such return, the
Borrower would remain in compliance with Section 2.11(b) and no Default
shall have occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 3:00 p.m., New York City
time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders; provided that Swingline
Loans shall be made as provided in Section 2.04. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated
by the Borrower in the applicable Borrowing Request; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.05(b)(iii) shall be remitted by the
Administrative Agent to the relevant Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower each agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount
60
is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to
a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding
the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
61
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing, (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or
continued as a Eurodollar Borrowing if after giving effect thereto (i) the
Interest Period therefor would end after a date on which any principal of the
Loans of such Class is scheduled to be repaid and (ii) the sum of the aggregate
principal amount of outstanding Eurodollar Borrowings of such Class with
Interest Periods ending on or prior to such scheduled repayment date plus the
aggregate principal amount of outstanding ABR Borrowings of such Class would be
less than the aggregate principal amount of Loans of such Class required to be
repaid on such scheduled repayment date.
SECTION 2.08. Termination and Reduction of Commitments; Return
of Tranche A Credit-Linked Deposits. (a) Unless previously terminated,
(i) the Term Loan Commitments shall terminate at 5:00 p.m., New York City
time, (x) on the Second Amendment Effective Date, in the case of Tranche
B Term Loan Commitments and the Tranche C Term Loan Commitments and (y)
on the Tranche D Effective Date, in the case of Tranche D Term Loan
Commitments, and (ii) the Revolving Commitments shall terminate on the
Revolving Maturity Date. If any Tranche A Letter of Credit remains
outstanding on the Tranche A Maturity Date, the Borrower will deposit
with the Administrative Agent an amount in cash equal to 100% of the
aggregate undrawn amount of such Letter of Credit to secure the
Borrower's reimbursement obligations with respect to any drawings that
may occur thereunder. Subject only to the Borrower's compliance with its
obligations under the preceding sentence, any amount of the Tranche A
Credit-Linked Deposits held in the Tranche A Credit-Linked Deposit
Account will be returned to the Tranche A Lenders on the Tranche A
Maturity Date pursuant to Section 2.10(d).
(b) The Borrower may at any time terminate, or from time to
time reduce, the Revolving, Swingline or Term Loan Commitments; provided that
(i) each reduction of the Revolving, Swingline or Term Loan Commitments shall be
in an amount that is an integral multiple of
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$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
The Borrower may at any time or from time to time direct the Administrative
Agent to reduce the Total Tranche A Credit-Linked Deposits; provided that (i)
each reduction of the Tranche A Credit-Linked Deposits shall be in an amount
that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii)
the Borrower shall not direct the Administrative Agent to reduce the Tranche A
Credit-Linked Deposits if, after giving effect to such reduction (and to the
provisions of Section 2.05(a)), the aggregate Tranche A LC Exposure would exceed
the Total Tranche A Credit-Linked Deposit or the Revolving Exposure would exceed
the total Revolving Commitments. In the event the Tranche A Credit-Linked
Deposits shall be reduced as provided in the preceding sentence, the
Administrative Agent will return all amounts in the Tranche A Credit-Linked
Deposit Account in excess of the reduced Total Tranche A Credit-Linked Deposit
to the Tranche A Lenders, ratably in accordance with their Applicable
Percentages of the Total Tranche A Credit-Linked Deposit (as determined
immediately prior to such reduction).
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving, Swingline or Term Loan
Commitments or the Total Tranche A Credit-Linked Deposit under paragraph (b) of
this Section, or any required reduction of the Revolving Commitments under
paragraph (b) of this Section, at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination of the
Revolving, Swingline or Term Loan Commitments or reduction of the Total Tranche
A Credit-Linked Deposit shall be permanent. Each termination of the Revolving,
Swingline or Term Loan Commitments or reduction of the Total Tranche A
Credit-Linked Deposit shall be made ratably among the applicable Lenders in
accordance with their Applicable Percentages.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (A) to the Administrative
Agent for the account of each Revolving Lender the then unpaid principal
amount of each Revolving Loan of such Revolving Lender on the Revolving
Maturity Date, (B) to the Administrative Agent for the account of each
Term Lender the then unpaid principal amount of each Term Loan of such
Term Lender as provided in Section 2.10 and (C) to the Administrative
Agent for the account of each Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Revolving Maturity
Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least ten Business Days
after such Swingline Loan is
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made; provided that on each date that a Revolving Borrowing is made, the
Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Amortization of Term Loans and Tranche A
Credit-Linked Deposits. (a) The Borrower shall repay Term Borrowings in
an aggregate principal amount of $20,000,000 on September 30 if each
year, beginning on September 30, 2004.
(b) If the initial aggregate amount of the Lenders' Term Loan
Commitments exceeds the aggregate principal amount of Term Loans that are made
on the Restatement Effective Date, then the scheduled repayments of Term
Borrowings to be made pursuant to this Section shall be reduced ratably by an
aggregate amount equal to such excess. Any prepayment of a Term Borrowing shall
be applied to reduce the subsequent scheduled repayments of the Term Borrowings
to be made pursuant to this Section ratably; provided that, at the option of the
Borrower, any prepayment made pursuant to Section 2.11(a) may be applied either
(a) first to reduce the next scheduled repayments of the Term Borrowings to be
made pursuant to this Section in order of maturity or (b) ratably. All Excess
Cash Flow to be applied at any time to prepay Term Borrowings pursuant to
Section 2.11(d) shall be applied, at the Borrower's option,
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(a) first to reduce the next scheduled repayments of the Term Borrowings to be
made pursuant to this Section in order of maturity or (b) ratably.
(c) Each payment of Borrowings pursuant to this Section 2.10
shall be accompanied by accrued interest on the principal amount paid to but
excluding the date of payment.
(d) The Administrative Agent shall return Tranche A
Credit-Linked Deposits in the aggregate amount of $2,000,000 to the Tranche A
Lenders on September 30 of each year, beginning on September 30, 2004. To the
extent not previously returned, all Tranche A Credit-Linked Deposits shall be
returned to the Tranche A Lenders on the Tranche A Maturity Date. Any optional
return of Tranche A Credit-Linked Deposits effected pursuant to Section 2.08
shall be applied to reduce the subsequent scheduled returns of Tranche A
Credit-Linked Deposits to be effected pursuant to this Section ratably. Each
return of Tranche A Credit-Linked Deposits pursuant to this Section 2.10(d)
shall be accompanied by accrued interest on the amount of Tranche A
Credit-Linked Deposits paid to but excluding the date of return.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(b)(viii)) in an aggregate amount equal to such
excess.
(c) In the event and on each occasion that any Net Available
Proceeds are received by or on behalf of Allied Waste, the Borrower or any
Restricted Subsidiary in respect of any Prepayment Event, the Borrower shall,
within three Business Days after such Net Available Proceeds are received,
prepay Term Borrowings in an aggregate amount equal to the amount of the
Relevant Percentage of such Net Available Proceeds; provided that
(i) in the case of Net Available Proceeds arising out of the
sale of Securitization Assets, the issuance of Permitted Cure
Securities or the issuance or incurrence of Indebtedness pursuant to
Section 6.01(a)(xv) or Section 6.01(a)(xviii), the Borrower shall
prepay Term Borrowings in an aggregate amount equal to 100% of such Net
Available Proceeds; provided, however, that the Borrower shall not be
required to prepay Term Borrowings with Net Available Proceeds received
in connection with the sale of Securitization Assets unless the Net
Available Proceeds received in connection with all such sales exceeds
$5,000,000 in the aggregate in any fiscal year of the Borrower (in
which case the Borrower shall be required to prepay Term Borrowings in
an amount equal to 100% of such Net Available Proceeds received)
provided, further, however, that the Net Available Proceeds arising
from sales of Securitization Assets in additional Securitizations
effected after the Third Amendment Effective Date involving Third
65
Party Securities not in excess of $125,000,000 may be applied to
Optional Repurchases of Refinanceable Public Notes provided that (x)
the amount of such Net Available Proceeds so utilized plus the amount
of Qualifying Senior Secured Indebtedness issued after the Third
Amendment Effective Date pursuant to Section 6.01 (a)(xxiii) shall not
exceed $500,000,000 less the amount of the Tranche D Term Loans and (y)
100% of such Net Available Proceeds arising from the sale of
Securitization Assets which have not been applied to such Optional
Repurchases by the 150th day following the date of the receipt shall be
applied, not later than such 150th day, to the prepayment of the Term
Loans;
(ii) subject to clause (iv) below, in the case of the issuance
of Qualifying Senior Secured Indebtedness pursuant to Section
6.01(a)(xiii), (A) the Net Available Proceeds received in connection
with the issuance after the Restatement Effective Date of up to
$1,425,000,000 of the initial aggregate principal amount of such
Qualifying Senior Secured Indebtedness may (to the extent such Net
Available Proceeds are not applied to prepay Term Borrowings pursuant
to this Section 2.11(c)) be applied to the repayment, redemption or
repurchase of Targeted Senior Secured Indebtedness, (B) the Net
Available Proceeds of additional issuances of such Qualifying Senior
Secured Indebtedness shall be applied (x) if received when the Leverage
Ratio is 3.75 to 1.00 or greater, 50% to the repayment of Term Loans
and 50% to the repayment, redemption or repurchase of Targeted Senior
Secured Indebtedness and (y) if received when the Leverage Ratio is
less than 3.75 to 1.00, 100% to the repayment, redemption or repurchase
of Targeted Senior Secured Indebtedness;
(iii) subject to clause (iv) below, 100% of the Net Available
Proceeds from the issuance of Permitted Subordinated Debt pursuant to
Section 6.01(a)(xiv) may be applied to the repayment, redemption or
repurchase of Refinanceable Indebtedness;
(iv) notwithstanding the foregoing, 100% of any Net Available
Proceeds from the issuance in a Permitted Refinancing Transaction of
Qualifying Senior Secured Indebtedness or Permitted Subordinated Debt
pursuant to Section 6.01(a)(xiii) or (xiv) which have not been applied
to the repayment, repurchase or redemption of the relevant Targeted
Senior Secured Indebtedness or Refinanceable Indebtedness by the 90th
day following such issuance, shall be applied to the prepayment of Term
Loans on such 90th day; and
(v) in the case of the issuance of Qualifying Senior Secured
Indebtedness or Qualifying Senior Unsecured Indebtedness pursuant to
Section 6.01(a)(xxiii), the Net Available Proceeds thereof may be
applied to the Optional Repurchase of Refinanceable Public Notes in a
Permitted Public Notes Refinancing Transaction, provided that 100% of
such Net Available Proceeds which have not been so applied by the 150th
day following such issuance shall be applied, not later than such 150th
day, to the prepayment of Term Loans.
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For purposes of determining the amount of Indebtedness that is permitted or
required to be repaid, redeemed or repurchased pursuant to clause (ii), (iii),
(iv) or (v) above in circumstances where the determination of such amount is
based on the Net Available Proceeds of a separate issuance of Indebtedness, the
Net Available Proceeds of such separate issuance of Indebtedness shall be deemed
to equal the Net Available Proceeds thereof without giving effect to any
deduction of fees or expenses of such separate issuance of Indebtedness that are
paid with the proceeds of Revolving Loans or Swingline Loans in accordance with
Section 5.16. Notwithstanding the foregoing, in the case of any event described
in clause (a) of the definition of the term Prepayment Event, if the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer
to the effect that the Borrower or any Subsidiary intends to apply the Net
Available Proceeds from such event, within one year after receipt of such Net
Available Proceeds, to acquire real property, equipment or other tangible assets
(including pursuant to Permitted Acquisitions) to be used in the business of the
Borrower and the Subsidiaries, and certifying that no Event of Default has
occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of Net Available Proceeds so applied by the end of
such one-year period. The amount of the Relevant Percentage of such Net
Available Proceeds not so applied by the end of such one-year period shall be
applied to the prepayment of Term Borrowings at such time. Notwithstanding any
other provision of this Agreement, including the provisions of Sections 2.10 and
2.11, any and all proceeds, including any Net Available Proceeds, from the sale
or disposition of Collateral subject to Liens under the Security Agreements or
the Pledge Agreements at the time of such sale or disposition and made pursuant
to the exercise of remedies under such Security Documents shall be applied in
accordance with the provisions of the applicable Security Agreement or Pledge
Agreement rather than the provisions of this Agreement. Notwithstanding any
provision of this Agreement to the contrary, in the case of a Prepayment Event
referred to in clause (d) of the definition of "Prepayment Event", the Borrower
and/or any applicable Restricted Subsidiary will for purposes hereof (i) be
deemed to have received a cash payment in respect of such Prepayment Event to
the extent that the Borrower or such Restricted Subsidiary, as the case may be,
receives a cash payment in respect of the applicable Securitization Assets from
the applicable Securitization Vehicle and such cash payment is derived from
proceeds from the issuance of Third Party Securities and (ii) will not be deemed
to have received a cash payment from such Prepayment Event to the extent that
such Prepayment Event occurs in connection with ongoing sales of Securitization
Assets to such Securitization Vehicle that are purchased by it with the proceeds
from collections of Securitization Assets previously purchased by it pursuant to
such Securitization.
(d) Following the end of each Excess Cash Flow Calculation
Period, commencing with the Excess Cash Flow Calculation Period ending
March 31, 2004, the Borrower shall prepay Term Loans in an aggregate
amount equal to 50% of Excess Cash Flow for such Excess Cash Flow
Calculation Period minus the aggregate amount of any voluntary
prepayments of the Term Loans and Revolving Loans (to the extent
accompanied by a corresponding permanent reduction of the Revolving
Commitment) during such Excess Cash Flow Calculation Period. Each
prepayment pursuant to this paragraph shall be made on or before the
date on which financial statements are delivered pursuant to
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Section 5.04(b) with respect to the most recent fiscal quarter included in the
Excess Cash Flow Calculation Period in respect of which Excess Cash Flow is
being calculated (and in any event within 60 days after the end of such fiscal
quarter).
(e) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lenders) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing or a reduction of the Total Tranche A
Credit-Linked Deposits, not later than 1:00 p.m., New York City time, three
Business Days before the date of prepayment or reduction, (ii) in the case of
prepayment of an ABR Borrowing, not later than 1:00 p.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time, on
the date of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date, the principal amount of each Borrowing or portion thereof
to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.08, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Loan or a Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Except as otherwise set forth herein, (i) each prepayment
of a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing and (ii) each reduction of the Total Tranche A Credit-Lined Deposit
shall be applied ratably to the Tranche A Credit-Linked Deposits of the Tranche
A Lenders. Each optional prepayment of Borrowings made pursuant to Section
2.11(a) shall be in an amount that is an integral multiple of $1,000,000 and not
less than $5,000,000 (or the entire outstanding principal amount of any Class of
Borrowings, if such amount is less than $5,000,000). Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
(f) In the event that 100% of the proceeds of the Original
Tranche C Term Loans, less the amount of out-of-pocket costs and expenses
incurred in connection with the First Amendment and attributable to obtaining
the Original Tranche C Term Loans, have not been used by the 120th day following
the First Amendment Effective Date to effect Optional Repurchases of
Refinanceable Indebtedness, then any such net proceeds not so applied shall be
applied on such 120th day to prepay Term Loans hereunder. In the event that 100%
of the proceeds of the Tranche D Term Loans, less the amount of out-of-pocket
costs and expenses incurred in connection with the Third Amendment and
attributable to obtaining the Tranche D Term Loans, have not been used by the
150th day following the Tranche D Effective Date to effect Optional Repurchases
of Refinanceable Indebtedness, then any such net proceeds not so applied shall
be applied on such 150th day to prepay Term Loans hereunder.
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SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee,
which shall accrue at the rate of 0.75% per annum on the daily unused
amount of the Revolving Commitment of such Lender, during the period
from and including the Restatement Effective Date to but excluding the
date on which such Commitment terminates. Accrued commitment fees shall
be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after
the Restatement Effective Date. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day). For purposes of computing commitment fees, a Revolving Commitment
of a Lender shall be deemed to be used to the extent of the outstanding
Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Revolving Letters of Credit, which shall accrue at the
Applicable Margin from time to time in effect in respect of Eurodollar Revolving
Loans on the daily amount of such Lender's Revolving LC Exposure (excluding any
portion thereof attributable to unreimbursed Revolving LC Disbursements) during
the period from and including the Restatement Effective Date to but excluding
the date on which such Lender ceases to have any Revolving LC Exposure, and (ii)
to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and such Issuing Bank, not to
exceed 0.25% per annum, on the outstanding amount of each Revolving Letter of
Credit issued by such Issuing Bank during the period from and including the date
of issuance thereof to but excluding the date of termination, expiration or
drawing in full of such Revolving Letter of Credit, as well as such Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Revolving Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees in respect of Revolving Letters
of Credit accrued through and including the last day of March, June, September
and December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Restatement
Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to an Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees in
respect of Revolving Letters of Credit shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay (i) in addition to the fees
payable to the Tranche A Lenders pursuant to Section 2.20(b), to the
Administrative Agent for the account of each Tranche A Lender a participation
fee with respect to its participations in Tranche A Letters of Credit, which
shall accrue at the Applicable Margin from time to time in effect with respect
to the Tranche A Participation Fee on the
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daily amount of such Tranche A Lender's Tranche A Credit-Linked Deposit during
the period from and including the Restatement Effective Date to but excluding
the date on which the entire amount of such Lender's Tranche A Credit-Linked
Deposit is returned to it and (ii) to each Issuing Bank a fronting fee, which
shall accrue at the rate of 0.25% per annum on the outstanding amount of each
Tranche A Letter of Credit (including each Existing Letter of Credit that is a
Tranche A Letter of Credit) issued by such Issuing Bank from and including the
date of issuance thereof to but excluding the date of termination, expiration or
drawing in full of such Tranche A Letter of Credit, as well as such Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Tranche A Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees in respect of Tranche A Letters
of Credit accrued through and including the last day of March, June, September
and December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Restatement
Effective Date; provided that all such fees shall be payable on the date on
which the Tranche A Credit-Linked Deposits are returned to the Tranche A Lenders
and any such fees accruing after the date on which the Tranche A Credit-Linked
Deposits are returned to the Tranche A Lenders shall be payable on demand. Any
other fees payable to any Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees in
respect of Tranche A Letters of Credit shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) All voluntary prepayments of Term Loans (including Tranche
D Term Loans) effected on or prior to the first anniversary of the Second
Amendment Effective Date with the proceeds of a substantially concurrent
issuance or incurrence of Indebtedness in connection with a repricing or
refinancing of all or any portion of the Term Loans shall be accompanied by a
prepayment fee equal to 1.0% of the aggregate amount of any such prepayment.
(e) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(f) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to an Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the
Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
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(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or Tranche A LC Disbursement or any fee or other amount
payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section, (ii) in
the case of overdue unreimbursed amounts with respect to any Tranche A LC
Disbursement, 2% plus the rate otherwise applicable to such Tranche A LC
Disbursement as provided in Section 2.05(b) or (iii) in the case of any other
amount, 2% plus the rate applicable to ABR Revolving Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to (i) the
commencement of any Interest Period for a Eurodollar Borrowing or (ii)
the determination of the Benchmark LIBOR Rate (as defined in Section
2.20(b)) on any day:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period or the Benchmark LIBOR Rate for
such day; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period or
the Benchmark LIBOR Rate for such day will not adequately and
fairly reflect the cost to such Lenders of making or maintaining
their Loans included in such Borrowing or such Tranche A
Credit-Linked Deposit, as applicable, for such Interest Period or
such day, as the case may be;
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then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) the Tranche A Credit-Linked Deposits shall be invested so as
to earn a return equal to the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or the
Administrative Agent (except any such reserve requirement reflected in
the Adjusted LIBO Rate, where applicable) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the
Administrative Agent or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender or any Letter of Credit or participation therein or any Tranche
A Credit-Linked Deposit;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or such Issuing Bank or the Administrative Agent of
participating in, issuing or maintaining any Letter of Credit or any
Tranche A Credit-Linked Deposit or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder (whether
of principal, interest or otherwise), then the Borrower will pay to such
Lender or Issuing Bank or the Administrative Agent, as the case may be,
such additional amount or amounts as will compensate such Lender or
Issuing Bank or the Administrative Agent, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank or the Administrative
Agent determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's or Issuing
Bank's or the Administrative Agent's capital or on the capital of such Lender's
or Issuing Bank's or the Administrative Agent's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender or the Administrative Agent, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender or
such Issuing Bank or the Administrative Agent or such Lender's or Issuing Bank's
or the Administrative Agent's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or Issuing Bank's or the
Administrative Agent's policies and the policies
72
of such Lender's or Issuing Bank's or the Administrative Agent's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or Issuing Bank or the Administrative Agent, as the case may be,
such additional amount or amounts as will compensate such Lender or Issuing Bank
or the Administrative Agent or such Lender's or Issuing Bank's or the
Administrative Agent's holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank or the
Administrative Agent setting forth the amount or amounts necessary to compensate
such Lender or Issuing Bank or the Administrative Agent or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or Issuing Bank or the Administrative Agent, as
the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank
or the Administrative Agent to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or Issuing Bank's or the
Administrative Agent's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or an Issuing Bank or the
Administrative Agent pursuant to this Section for any increased costs or
reductions incurred more than 90 days prior to the date that such Lender or
Issuing Bank or the Administrative Agent, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or Issuing Bank's or the Administrative Agent's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
90-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing, Section 2.17, and not this
Section 2.15, is the only section of this Agreement that deals with increased
costs with respect to Taxes.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last
day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan or
Term Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.11(e)
and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event.
In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to consist solely of an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO
73
Rate that would have been applicable to such Loan, for the period from
the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in
the Eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Any and all payments by or on account of any obligation of
the Administrative Agent pursuant to Section 2.20(b) hereunder shall be made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Administrative Agent shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the Administrative
Agent shall so notify the Borrower and advise it of the additional amount
required to be paid so that the sum payable by the Administrative Agent pursuant
to Section 2.20(b) after making all required deductions (including deductions
applicable to additional sums payable under this Section) to the Tranche A
Lenders is an amount from the Administrative Agent equal to the sum they would
have received from the Administrative Agent had no deductions been made, (ii)
the Borrower shall pay such additional amount to the Administrative Agent, (iii)
the Administrative Agent shall make all required deductions, (iv) the
Administrative Agent shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law and (v) the Borrower
shall indemnify, within 10 days after written demand therefor, the
Administrative Agent for the full amount of any deductions paid by the
Administrative Agent with respect to any payments made on account of any
obligation of the Administrative Agent pursuant to Section 2.20(b).
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the applicable Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other
74
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability, providing a reasonably detailed
explanation and calculation thereof, prepared in good faith and delivered to the
Borrower by a Lender or an Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Foreign Lender (and, where required by applicable
law, such Foreign Lender's beneficial owners) shall deliver to the Borrower
(with a copy to the Administrative Agent) two copies of either United States
Internal Revenue Service Form W-8BEN or Form W-8ECI or any subsequent versions
thereof or successors thereto, or, in the case of a Foreign Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Foreign Lender
(and, as applicable, such Foreign Lender's beneficial owners) delivers a Form
W-8BEN, a certificate in the form of the certificate attached hereto as Exhibit
L (the "Portfolio Exemption Certificate") representing, inter alia, that such
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners) is
not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder of the Borrower (within the meaning of Section 871(h)(3)(B) of the
Code) and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), and such other forms or
statements reasonably requested by the Borrower, in the case of all the
foregoing, properly completed and duly executed by such Foreign Lender (and, as
applicable, such Foreign Lender's beneficial owners) claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement or any other Loan Document. Such forms shall be
delivered by each Foreign Lender (and, as applicable, such Foreign Lender's
beneficial owners) on or before the date it becomes a party to this Agreement or
designates a new lending office. In addition, each Foreign Lender (and, as
applicable, such Foreign Lender's beneficial owners) shall deliver such forms
promptly upon the obsolescence, expiration or invalidity of any form previously
delivered by such Foreign Lender (and, as applicable, such Foreign Lender's
beneficial owners). In the case of a Foreign Lender (and, as applicable, such
Foreign Lender's beneficial owners) that delivers a Portfolio Interest Exemption
Certificate, such Foreign Lender (and, as applicable, its beneficial owners)
shall deliver such certificate and other forms as reasonably requested by the
Borrower on a biannual basis. In addition, each Foreign Lender agrees to notify
promptly the Borrower and the Administrative Agent if it (or, as applicable, its
beneficial
75
owners) is no longer able to deliver, or if it is required to withdraw or
cancel, any form or statement previously delivered by it pursuant to this
Section 2.17(e). Notwithstanding any other provision of this Section 2.17, a
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners)
shall not be required to deliver any form pursuant to this Section 2.17(e) that
such Foreign Lender (and, as applicable, such Foreign Lender's beneficial
owners) is not legally able to deliver (it being understood and agreed that the
Borrower shall withhold or deduct such amounts from any payments made to such
Foreign Lender that the Borrower reasonably determines are required by law).
(ii) Each Lender that is not a Foreign Lender and the
Administrative Agent shall deliver to the Borrower (with a copy to the
Administrative Agent) two copies of United States Internal Revenue Service Form
W-9, or any subsequent versions thereof or successors thereto, unless such
Lender otherwise establishes that such Lender is otherwise eligible for an
exemption from backup withholding tax or any other applicable withholding tax.
Such forms shall be delivered by such Lender on or before the date it becomes a
party to this Agreement or designates a new lending office and such Lender shall
deliver such forms promptly upon the obsolescence, expiration or invalidity of
any form previously delivered by such Lender.
(iii) Each Lender (and each former Lender) agrees to indemnify
and hold harmless the Borrower and the Administrative Agent from and against any
Taxes imposed by or on behalf of the United States or any taxing jurisdiction
thereof (including any interest, penalty, addition to tax or additional amount
due) and reasonable expenses arising therefrom or with respect thereto
("Losses") incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes imposed by or on behalf of the
United States or any taxing jurisdiction thereof from any payments made pursuant
to this Agreement which failure resulted from the Borrower's or the
Administrative Agent's reliance on any representation, covenant, form,
statement, certificate or other information provided to it by such Lender
pursuant to this Section 2.17(e) including, for the avoidance of doubt, (x) any
Losses arising by virtue of such Lender being a "conduit entity" within the
meaning of Treasury Reg. Section 1.881-3 or any successor provision thereto and
(y) in the case of a Lender which sells a participation, any Losses which arise
as a result of such participation but, in all cases, excluding Losses resulting
solely from any action or failure to act by the Borrower (other than the
Borrower's reliance on any such representation, covenant, form, statement or
certificate or any such action as required by applicable law or by this
Agreement).
(f) If the Administrative Agent or a Lender or any Issuing
Bank determines, in its reasonable, good faith judgment that it has received a
refund of or with respect to any Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.17 with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender or such Issuing Bank and without interest (other than any interest
paid
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by the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
Lender or such Issuing Bank, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender or such
Issuing Bank in the event the Administrative Agent or such Lender or such
Issuing Bank is required to repay such refund to such Governmental Authority.
Nothing contained in this Section 2.17 shall require the Administrative Agent or
any Lender or any Issuing Bank to make available its tax returns (or any other
information relating to its Taxes which it deems confidential) to the Borrower
or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) The Borrower shall make each payment required to be
made by it hereunder or under any other Loan Document (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of
amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior
to the time expressly required hereunder or under such other Loan
Document for such payment (or, if no such time is expressly required,
prior to 2:00 p.m., New York City time), on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the reasonable
discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative
Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
except payments to be made directly to an Issuing Bank or a Swingline
Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the Persons specified therein. The Administrative
Agent shall distribute any such payments received by it for the account
of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on
a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall
be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to payment of interest and fees then due in respect
of Loans, Letters of Credit and Commitments hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties and (ii) second, to payment of principal of Loans and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such
77
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans or participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Term Loans or
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
such Issuing Bank, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or such
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any
78
Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its
Loans or Tranche A Credit-Linked Deposits hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans or Tranche A
Credit-Linked Deposits hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, each Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.20. Credit-Linked Deposit Account. (a) The Tranche A
Credit-Linked Deposits shall be held by the Administrative Agent in the
Tranche A Credit-Linked Deposit Account, and no party other than the
Administrative Agent shall have a right of withdrawal from the Tranche
A Credit-Linked Deposit Account or any other right or power with
respect to the Tranche A Credit-Linked Deposits, except as expressly
set forth in Section 2.05, 2.08 or 2.11. Notwithstanding any provision
in this Agreement to the contrary, the sole funding obligation of each
Tranche A Lender in respect of its participation in Tranche A Letters
of Credit shall be satisfied in full upon the funding of its Tranche A
Credit-Linked Deposit on the Restatement Effective Date.
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(b) Each of the Borrower, the Administrative Agent, each
Issuing Bank issuing any Tranche A Letter of Credit and each Tranche A Lender
hereby acknowledges and agrees that each Tranche A Lender is funding its Tranche
A Credit-Linked Deposit to the Administrative Agent for application in the
manner contemplated by Section 2.05(b) and that the Administrative Agent has
agreed to invest the Tranche A Credit-Linked Deposits so as to earn a return
(except during periods when, and to the extent to which, such Tranche A
Credit-Linked Deposits are used to cover unreimbursed Tranche A LC
Disbursements, and subject to Section 2.14) for the Tranche A Lenders equal to a
rate per annum, reset daily on each Business Day for the period until the next
following Business Day, equal to (i) such day's rate for one month LIBOR
deposits (the "Benchmark LIBOR Rate") minus (ii) 0.10%. Such interest will be
paid to the Tranche A Lenders by the Administrative Agent quarterly in arrears
when Letter of Credit fees are payable pursuant to Section 2.12. In addition to
the foregoing payments by the Administrative Agent, the Borrower agrees to make
payments to the Tranche A Lenders quarterly in arrears when Letter of Credit
fees are payable pursuant to Section 2.12 (and together with the payment of such
fees) in an amount equal to 0.10%.
(c) The Borrower shall have no right, title or interest in or
to the Tranche A Credit-Linked Deposits and no obligations with respect thereto
(except for the reimbursement obligations provided in Section 2.05), it being
acknowledged and agreed by the parties hereto that the making of the Tranche A
Credit-Linked Deposits by the Tranche A Lenders, the provisions of this Section
2.20 and the application of the Tranche A Credit-Linked Deposits in the manner
contemplated by Section 2.05(b) constitute agreements among the Administrative
Agent, each Issuing Bank issuing any Tranche A Letter of Credit and each Tranche
A Lender with respect to the funding obligations of each Tranche A Lender in
respect of its participation in Tranche A Letters of Credit and do not
constitute any loan or extension of credit to the Borrower.
(d) Subject to the Borrower's compliance with the
cash-collateralization requirements set forth in Section 2.05(b)(viii) the
Administrative Agent shall return any remaining Tranche A Credit-Linked Deposits
to the Tranche A Lenders following the occurrence of the Tranche A Maturity
Date.
SECTION 2.21. Incremental Term Loans. (a) At any time prior to
the Term Loan Maturity Date, the Borrower may, by notice to the
Administrative Agent, which shall promptly deliver a copy thereof to
each of the Lenders (the "Incremental Facility Notice"), request the
addition of a new tranche of term loans hereto (the "Incremental Term
Loans"); provided, however, that both (x) at the time of any such
request and (y) after giving effect to any such Incremental Term Loans,
no Default shall exist and the Borrower shall be in compliance with
each Financial Performance Covenant (calculated, in the case of clause
(y), on a pro forma basis to give effect to any borrowing of
Incremental Term Loans). The Incremental Term Loans shall (i) be in an
aggregate principal amount not in excess of $250,000,000 but in no
event less than $50,000,000, (ii) rank pari passu in right of payment
and of security with the other Loans (and the Additional Funded LC
Facility (if any)), (iii) mature and amortize in a manner reasonably
acceptable to the Initial Lenders, but in any event have an average
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weighted life equal to or longer than the Term Loans and mature on a
date no earlier than the Term Loan Maturity Date, (iv) have such
pricing as may be agreed by the Borrower and the Persons providing such
Incremental Term Loans; provided, that the yield with respect to the
Incremental Term Loans (taking into account upfront fees paid to
Incremental Term Loan lenders) may be no more than 0.25% per annum
greater than the then-current yield with respect to the Term Loans and
the Additional Funded LC Facility (if any) the time the Incremental
Facility Amendment (as defined below) becomes effective pursuant to its
terms (it being understood that the pricing of the Term Loans and/or
the Additional Funded LC Facility (if any) will be increased and/or
additional fees will be paid to the Term Lenders or Additional Funded
LC Facility lenders (if any) to the extent necessary to satisfy such
requirement), and (v) otherwise be treated hereunder substantially the
same as (and in any event no more favorably than) the Term Loans
(including with respect to the voluntary and mandatory prepayment
provisions); provided, that the terms and provisions applicable to the
Incremental Term Loans may provide for financial or other covenants
different or in addition to those applicable to the Term Loans and the
Additional Funded LC Facility (if any) only to the extent that such
terms and provisions are applicable only during periods after the Term
Loan Maturity Date. The Incremental Facility Notice shall (i) set forth
the requested amount of Incremental Term Loans, (ii) offer each Lender
the opportunity to offer a commitment (the "Incremental Commitment") to
provide Incremental Term Loans by giving written notice of such offered
commitment to the Administrative Agent and the Borrower prior to the
termination of the general syndication of the Incremental Term Loans
and (iii) be provided to each existing Lender not less than five
Business Days prior to the commencement of the general syndication of
the Incremental Term Loans; provided, however, that no existing Lender
will be obligated to subscribe for any portion of such commitments. At
any point during or after the expiration of the Incremental Term Loan
Offer Period, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or other
financial institution being called an "Additional Term Loan Lender") to
extend commitments to provide Incremental Term Loans; provided that the
Additional Term Loan Lenders shall be offered the opportunity to
provide the Incremental Term Loans only on terms previously offered to
the existing Lenders pursuant to the Incremental Facility Notice. Each
Commitment in respect of Incremental Term Loans shall become a
Commitment under this Agreement and the facility for the Incremental
Term Loans shall be implemented hereunder pursuant to an amendment to
this Agreement (an "Incremental Facility Amendment") executed by each
of the Borrower, Allied Waste, each other Loan Party, each Lender
agreeing to provide an Incremental Commitment, if any, each Additional
Term Loan Lender, if any, and the Administrative Agent, which
Incremental Facility Amendment will not require the consent of any
other Lender. The effectiveness of any Incremental Facility Amendment
shall (in addition to any other conditions specified therein) be
subject to the satisfaction on the date thereof and, if different, on
the date on which the Incremental Term Loans are made, of each of the
conditions set forth in Section 4.02.
(b) At any time prior to the Term Loan Maturity Date, the
Borrower may, by notice to the Administrative Agent, which shall promptly
deliver a copy thereof to each of the Lenders (a "Refinancing
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Facility Notice"), request the addition of a new tranche of term loans under
this Agreement ("Refinancing Term Loans"), 100% of the proceeds of which will be
applied by the Borrower on the date of receipt to the prepayment of all then
outstanding Term Loans pursuant to Section 2.11(a) and (e); provided, however,
that both (x) at the time of any such request and (y) after giving effect to any
such Refinancing Term Loans, no Default shall exist and the Borrower shall be in
compliance with each Financial Performance Covenant. Refinancing Term Loans
shall not constitute Incremental Term Loans for purposes of this Section (or
reduce the amounts of any Incremental Term Loans that could be effected pursuant
to paragraph (a) of this Section), and all proceeds of Refinancing Term Loans
shall be applied on their date of Borrowing to the prepayment in full of all
then outstanding Term Loans. The aggregate principal amount of Refinancing Term
Loans requested in a Refinancing Facility Notice or thereafter borrowed shall
equal the outstanding amount of Term Loans at the time of such notice or on the
date of such Borrowing, as the case may be. The Refinancing Term Loans shall (i)
rank pari passu in right of payment and of security with the other Loans (and
the Additional Funded LC Facility (if any)), (ii) mature and amortize in a
manner reasonably acceptable to the Administrative Agent, but in any event have
an average weighted life equal to or longer than the then outstanding Term Loans
and mature on a date no earlier than the Term Loan Maturity Date, (iii) have
such pricing as may be agreed by the Borrower and the Persons providing such
Refinancing Term Loans and (iv) otherwise be treated hereunder substantially the
same as (and in any event no more favorably than) the then outstanding Term
Loans (including with respect to the voluntary and mandatory prepayment
provisions); provided, that the terms and provisions applicable to the
Refinancing Term Loans may provide for financial or other covenants different or
in addition to those applicable to the Term Loans and the Additional Funded LC
Facility (if any) only to the extent that such terms and provisions are
applicable only during periods after the Term Loan Maturity Date. Each
commitment in respect of Refinancing Term Loans will become a Commitment under
this Agreement and the facility for the Refinancing Term Loans will be
implemented hereunder pursuant to an amendment to this Agreement (a "Refinancing
Facility Amendment") executed by each of the Borrower, Allied Waste, each other
Loan Party, each Lender (including any new Lender) agreeing to provide a
Commitment in respect of Refinancing Term Loans and the Administrative Agent,
which Refinancing Facility Amendment will not require the consent of any other
Lender. The effectiveness of any Refinancing Facility Amendment will (in
addition to any other conditions specified therein) be subject to the
satisfaction on the date thereof and, if different, on the date on which the
Refinancing Term Loans are made, of each of the conditions set forth in Section
4.02.
SECTION 2.22. Funded Letter of Credit Facility. At any time
prior to the Term Loan Maturity Date, the Borrower may, by notice to
the Administrative Agent which shall promptly deliver a copy thereof to
each of the Lenders (the "Additional Funded LC Facility Notice"),
request the addition of a new pre-funded letter of credit facility (the
"Additional Funded LC Facility"); provided, however, that both (x) at
the time of any such request and (y) upon effectiveness of the
Additional Funded LC Facility Amendment referred to below, no Default
shall exist and the Borrower shall be in compliance with each Financial
Performance Covenant. The Additional Funded LC Facility shall (i) be in
an aggregate principal amount not
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in excess of $500,000,000 and in no event less than $50,000,000 and
(ii) have such pricing as may be agreed by the Borrower and the Persons
providing such Additional Funded LC Facility. The obligations in
respect of letters of credit issued under the Additional Funded LC
Facility shall (i) rank pari passu in right of payment and of security
with the other Loans (including the Incremental Term Loans (if any)),
(ii) have such pricing as may be agreed by the Borrower and the Persons
providing the Additional Funded LC Facility; provided, that the yield
with respect to the Additional Funded LC Facility (taking into account
upfront fees paid to Funded LC Facility lenders) may be no more than
0.25% per annum greater than the then-current yield with respect to the
Tranche A Letters of Credit at the time the Additional Funded LC
Facility Amendment becomes effective pursuant to its terms (it being
understood that the pricing of the Tranche A Letters of Credit will be
increased and/or additional fees will be paid to the Tranche A Lenders
to the extent necessary to satisfy such requirement) and (iii)
otherwise be treated hereunder substantially the same as (and in any
event no more favorably than) the Tranche A Letters of Credit. Letters
of credit issued under the Additional Funded LC Facility shall be used
solely to support payment obligations of the Borrower and the
Subsidiaries in the ordinary course of business. The Additional Funded
LC Facility Notice shall (i) set forth the requested size of the
Additional Funded LC Facility, (ii) offer each Lender the opportunity
to offer a commitment (the "Additional Funded LC Commitment") to
provide a portion of the Additional Funded LC Facility by giving
written notice of such offered commitment to the Administrative Agent
and the Borrower prior to the termination of the general syndication of
the Additional Funded LC Facility and (iii) be provided to each
existing Lender not less than five Business Days prior to the
commencement of the general syndication of the Additional Funded LC
Facility; provided, however, that no existing Lender will be obligated
to subscribe for any portion of such commitments. At any point during
or after the Additional Funded LC Offer Period, the Borrower shall have
the right to arrange for one or more banks or other financial
institutions (any such bank or other financial institution being called
an "Additional Funded LC Lender") to extend commitments to provide a
portion of the Additional Funded LC Facility; provided that the
Additional Funded LC Lenders shall be offered the opportunity to
provide a portion of the Additional Funded LC Facility only on terms
previously offered to the existing Lenders pursuant to the Additional
Funded LC Facility Notice. Each Commitment in respect of the Additional
Funded LC Facility shall become a Commitment under this Agreement and
the Additional Funded LC Facility shall be implemented hereunder
pursuant to an amendment to this Agreement (an "Additional Funded LC
Facility Amendment") executed by each of the Borrower, Allied Waste,
each other Loan Party, each Lender agreeing to provide an Additional
Funded LC Commitment, if any, each Additional Funded LC Lender, if any,
and the Administrative Agent, which Additional Funded LC Facility
Amendment will not require the consent of any other Lender. The
effectiveness of any Additional Funded LC Facility Amendment shall (in
addition to any other conditions specified therein) be subject to the
satisfaction on the date thereof and, if different, on the date on
which the Additional Funded LC Facility becomes effective, of each of
the conditions set forth in Section 4.02.
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ARTICLE III
Representations and Warranties
Each of Allied Waste and the Borrower jointly and severally
represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Allied Waste, its
Restricted Subsidiaries and the Securitization Vehicles (a) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite
power and authority to own its property and assets and to carry on its
business as now conducted, (c) is qualified to do business in, and is
in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and (d) has the corporate power and authority
to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated hereby to
which it is or will be a party and, in the case of the Borrower, to
borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party and each Person that was a Loan Party
immediately prior to the Restatement Effective Date (each, a
"Predecessor Loan Party") of each of the Loan Documents to which such
Loan Party is or will be a party and the other Transactions:
(a) have been duly authorized by all requisite corporate and,
if required, stockholder action;
(b) in the case of Allied Waste and the Borrower, will not (i)
violate (A) any provision of law, statute, rule or regulation, or
of its certificate or articles of incorporation or other
constitutive documents or by-laws, (B) any material order of any
Governmental Authority or (C) any material provision of any
indenture, or other Material Agreement or instrument to which
Allied Waste or the Borrower is a party or by which either of
them or any of their property is or may be bound, (ii) result in
a breach of or constitute (alone or with notice or lapse of time
or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any
obligation under any such indenture or other Material Agreement
or instrument or (iii) result in the creation or imposition of
any material Lien upon or with respect to any property or assets
now owned or hereafter acquired by Allied Waste or the Borrower
(other than any Lien created hereunder or under the Security
Documents); and
(c) in the case of members of the Allied Group other than
Allied Waste and the Borrower, will not (i) violate (A) any
provision of law, statute, rule or regulation, or of its
certificate or articles of incorporation or other constitutive
documents or by-laws, (B) any material order of any Governmental
Authority or (C) any material provision of any indenture or other
Material Agreement or instrument to which any of them is a party
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or by which any of them or any of their property is or may be
bound, (ii) result in a breach of or constitute (alone or which
notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture or other
Material Agreement or instrument or (iii) result in the creation
or imposition of any material Lien upon or with respect to any
property or assets now owned or hereafter acquired by any of them
(other than any Lien created hereunder or under the Security
Documents, in each case other than violations, conflicts and
breaches referred to in clauses (i) and (ii) above that could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or result in any liability of the
Administrative Agent or any Lender.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by each of Allied Waste and the Borrower and
constitutes, and each other Loan Document when executed and delivered
by each Loan Party thereto will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
SECTION 3.04. Governmental Approvals. Except as could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, no action, consent or approval of,
registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions,
except for (a) the filing of Uniform Commercial Code financing
statements and other similar filings to perfect the interests of the
Secured Parties in the Collateral, (b) such as will have been made or
obtained and will be in full force and effect as of the Restatement
Effective Date, (c) such as may be required in the ordinary course of
business in connection with the performance of the obligations of
Allied Waste and the Borrower hereunder and (d) such as may be required
in connection with sales of capital stock or other ownership interests
under the Security Documents.
SECTION 3.05. Financial Statements. (a) Allied Waste has, on
or prior to the Restatement Effective Date, furnished to the
Administrative Agent for distribution to the Lenders the Consolidated
balance sheet and statements of income, stockholders' equity and cash
flows of Allied Waste and its Restricted Subsidiaries on a Consolidated
basis as of and for the fiscal year ended December 31, 2002, reported
on by PricewaterhouseCoopers LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of Allied
Waste and its Subsidiaries as of such dates and for such periods in
accordance with GAAP consistently applied.
(b) Allied Waste has, on or prior to the Restatement Effective
Date, furnished to the Administrative Agent for distribution to the Lenders (i)
its unaudited pro forma Consolidated balance sheet as of December 31, 2002 and
(ii) projected Consolidated statements of
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income, stockholders' equity and cash flows of Allied Waste and its Restricted
Subsidiaries (covering the period ending on December 31, 2010), in each case
prepared giving effect to the Transactions as if the Transactions had occurred
as of December 31, 2002. Such pro forma and projected financial statements have
been prepared in good faith by Allied Waste based on the assumptions and
estimates used to prepare the pro forma and projected financial information in
the Confidential Information Memorandum (which assumptions and estimates are
believed by Allied Waste on the date thereof to be reasonable), is based on the
best information available to Allied Waste after due inquiry and accurately
reflects all material adjustments required to be made to give effect to the
Transactions.
SECTION 3.06. No Material Adverse Change. Since December 31,
2002, there has been no material adverse change in the business,
condition (financial or otherwise), operations, performance or
properties of Allied Waste and its Subsidiaries, taken as a whole.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each member of the Allied Group has good title to, or valid
leasehold interests in, all properties and assets which are material to
the conduct of the business of the Allied Group, taken as a whole,
except for defects that could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All such
material properties and assets are free and clear of Liens, other than
Liens expressly permitted by the Loan Documents.
(b) Schedule 3.07 sets forth the address of each landfill that
is owned or leased by Allied Waste or any of its Restricted Subsidiaries as of
the Restatement Effective Date.
(c) As of the Restatement Effective Date, neither Allied Waste
nor any of its Subsidiaries has received notice of, or has knowledge of, any
pending or contemplated condemnation proceeding affecting any landfill or any
sale or disposition thereof in lieu of condemnation. As of the Restatement
Effective Date, except as set forth on Schedule 3.07, neither any landfill nor
any interest therein is subject to any right of first refusal, option or other
contractual right to purchase such landfill or interest therein.
(d) Each member of the Allied Group has complied with all
obligations under all leases which are material to the Allied Group, taken as a
whole, to which it is a party and all such leases are in full force and effect,
except where failure to do so or failure of such leases to be in full force and
effect could not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Each member of the Allied Group enjoys peaceful
and undisturbed possession under all such material leases, except where failure
to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.08. Subsidiaries; Other Equity Investments. (a) Part
(a) of Schedule 3.08 sets forth as of the Restatement Effective Date a
list of all Subsidiaries. Each such Subsidiary is a wholly owned
Subsidiary except as otherwise indicated on Schedule 3.08. The shares
of capital stock or other ownership interests issued by the Borrower
and the other Subsidiaries and owned
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by members of the Allied Group are fully paid and non-assessable and
are owned by Allied Waste, directly or indirectly, free and clear of
all Liens (other than Liens permitted by the Loan Documents).
(b) Part (b) of Schedule 3.08 sets forth as of the Restatement
Effective Date a list of all equity Investments (other than equity Investments
in Subsidiaries referred to in Part (a) of Schedule 3.08) held by Allied Waste
or any of its subsidiaries in any Person, and, for each such Investment (i) the
identity of the Person or Persons holding such Investment and (ii) the nature of
such Investment.
SECTION 3.09. Litigation; Compliance with Laws.
(a) Except as set forth on Schedule 3.09, there are no
actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of Allied Waste or the
Borrower, threatened against or affecting any member of the Allied Group or any
business, property or rights of any such member (i) that involve any Loan
Document or any of the Transactions or (ii) as to which there is a reasonable
likelihood of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(b) No member of the Allied Group or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any Environmental Law, or, to
the knowledge of Allied Waste or the Borrower any zoning, building ordinance,
code or approval or any building permits), or is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental Authority, where
such violation or default could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.10. Agreements. No member of the Allied Group is in
default in any manner under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other Material
Agreement to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) No member of
the Allied Group is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used by any member of the Allied Group, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose
that entails a violation of, or that is inconsistent with, the provisions of
Regulations U or X of the Board.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. No member of the Allied Group is (a) an "investment
company" as defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as
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defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.13. Tax Returns. Each of Allied Waste and its
Subsidiaries has timely filed or caused to be filed all Tax returns,
extensions or materials required to have been filed by it (other than
those not yet delinquent) and has paid or caused to be paid all Taxes
due and payable by it and all assessments received by it, except (a)
any Taxes and assessments that are being contested in good faith by
appropriate proceedings and for which such member shall have set aside
on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so could not, individually or in the
aggregate, after giving effect to the Transactions, reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.14. No Material Misstatements. To the knowledge of
the Loan Parties, on or prior to the Restatement Effective Date, none
of (a) the Confidential Information Memorandum or (b) any other
information, report, financial statement, exhibit or schedule furnished
by or on behalf of Allied Waste and its Restricted Subsidiaries to the
Administrative Agent or any Lender in connection with the negotiation
of any Loan Document or included therein or delivered pursuant thereto,
when taken as a whole, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements
therein, as of the date of such statements and in the light of the
circumstances under which they were made, not misleading; provided that
to the extent any such information, report, financial statement,
exhibit or schedule was based upon or constitutes a forecast,
projection or expressions of opinion, each of Allied Waste and its
Subsidiaries represents only that (i) it acted in good faith and
utilized assumptions believed to be reasonable at the time and due care
in the preparation of such information, report, financial statement,
exhibit or schedule and (ii) nothing has come to its attention which
would cause them not to so believe.
SECTION 3.15. Employee Benefit Plans. Except as set forth on
Schedule 3.15, each of the Borrower and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of
ERISA and the Code and the regulations and published interpretations
thereunder, except for such non-compliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 3.15, no ERISA Event has
occurred and is outstanding or is reasonably expected to occur that,
when taken together with all other such outstanding ERISA Events,
could, individually or in the aggregate, reasonably be expected to
result in material liability of the Borrower or any of its ERISA
Affiliates, except where such liability could not reasonably be
expected to have to a Material Adverse Effect. The present value of all
benefit liabilities under each Plan (based on those assumptions used to
fund such Plan) did not, as of the last annual valuation date
applicable thereto, exceed by more than $25,000,000 the fair market
value of the assets of such Plan, and the aggregate present value of
all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto, exceed by more than
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$25,000,000 the aggregate fair market value of the assets of all such
underfunded Plans.
SECTION 3.16. Environmental Matters. Except as set forth on
Schedule 3.16:
(a) the facilities and properties owned, leased or operated by
each member of the Allied Group (the "Properties") do not contain
and to the Borrower's best knowledge (actual or constructive)
have not previously contained, any Hazardous Materials in amounts
or concentrations which (i) constitute, or constituted a
violation of, (ii) require remedial action under, or (iii) could
give rise to liability under, Environmental Laws, which
violations, remedial actions and liabilities, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect;
(b) the Properties and all operations of each member of the
Allied Group are in compliance, and in the last five years have
been in compliance, with all Environmental Laws and Environmental
Permits, and all necessary Environmental Permits have been
obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any such Environmental
Permits, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect;
(c) there have been no Releases or threatened Releases at,
from, under or proximate to the Properties or properties formerly
owned, leased or operated by any member of the Allied Group (the
"Former Properties") or otherwise in connection with the
operations of any member of the Allied Group, which Releases or
threatened Releases, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(d) no member of the Allied Group has received any notice of
an Environmental Claim in connection with the Properties or
Former Properties or the operations of any member of the Allied
Group or with regard to any Person whose liabilities arising
under Environmental Law any member of the Allied Group has
retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect; and
(e) Hazardous Materials have not been transported from the
Properties or Former Properties, nor have Hazardous Materials
been generated, treated, stored or disposed of at, on or under
any of the Properties or Former Properties in violation of any
Environmental Law, nor has any member of the Allied Group
retained or assumed any liability, contractually, by operation of
law or otherwise, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which transportation,
generation, treatment, storage or disposal, or retained or
assumed liabilities, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
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SECTION 3.17. Insurance. Schedule 3.17 sets forth a true,
complete and correct description of all material insurance maintained
by Allied Waste and the Borrower (including insurance maintained by
Allied Waste or the Borrower for any Subsidiary) as of the Restatement
Effective Date. As of the Restatement Effective Date, such insurance is
in full force and effect and all premiums which have become due and
payable have been fully paid. The Allied Group maintains insurance in
such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
SECTION 3.18. Labor Matters. Except as disclosed in the
periodic reports of Allied Waste most recently filed under the
Securities Exchange Act of 1934 prior to the Restatement Effective
Date, as of the Restatement Effective Date, there are no strikes,
lockouts or slowdowns against any member of the Allied Group pending
or, to the knowledge of Allied Waste or the Borrower, threatened,
which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. The hours worked by and payments
made to employees of the Allied Group do not violate the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign
law dealing with such matters, in a manner which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect. All payments due from members of the Allied Group, or for which
any claim may be made against any member of the Allied Group, on
account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of such
member, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
SECTION 3.19. Solvency. Immediately after the consummation of
the Transactions to occur on the Restatement Effective Date and
immediately following the making of each Loan and after giving effect
to the application of the proceeds thereof, and taking into account all
rights of indemnity, subrogation and contribution of the Loan Parties
under applicable law and the Indemnity, Contribution and Subrogation
Agreement, each Material Loan Party is and will be Solvent.
SECTION 3.20. Intellectual Property. Each member of the Allied
Group owns, or has valid rights to use, all Intellectual Property
necessary for the conduct of its business as currently conducted,
except for any failure to so own or license Intellectual Property
which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. To the knowledge of Allied
Waste and the Borrower, no claim has been asserted and is pending
against any member of the Allied Group challenging or questioning the
use of any Intellectual Property by them or the validity or
effectiveness of any Intellectual Property used by them, except for any
claims, which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. To the knowledge of
Allied Waste and the Borrower, the use of Intellectual Property by the
members of the Allied Group does not infringe on the rights of any
Person in any material respect and in any manner which could,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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SECTION 3.21. Senior Indebtedness. The Obligations constitute
"Senior Indebtedness" under and as defined in the 10% Note Documents.
SECTION 3.22. Security Interests. (a) Each of the Non-Shared
Collateral Pledge Agreement and the Shared Collateral Pledge Agreement
is effective to create in favor of the Collateral Agent and the
Collateral Trustee, respectively, for the ratable benefit of the
Secured Parties and the Shared Collateral Secured Parties,
respectively, a valid and enforceable security interest in the
"Collateral" (as defined in the Non-Shared Collateral Pledge Agreement)
and the "Collateral" (as defined in the Shared Collateral Pledge
Agreement), respectively, and, when the portion of the Collateral
constituting certificated securities (as defined in the Uniform
Commercial Code) is delivered to the Collateral Agent thereunder, such
security interest shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior
in right to any other Person.
(b) Each of the Non-Shared Collateral Security Agreement and
the Shared Collateral Security Agreement is effective to create in favor of the
Collateral Agent and the Collateral Trustee, respectively, for the ratable
benefit of the Secured Parties and the Shared Collateral Secured Parties,
respectively, a legal, valid and enforceable security interest in the
"Collateral" (as defined in the Non-Shared Collateral Security Agreement) and
the "Collateral" (as defined in the Shared Collateral Security Agreement),
respectively, and, when financing statements in appropriate form are filed in
the offices specified on Schedule D to each of the Perfection Certificates, such
security interest shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral, to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements, other than the Intellectual Property, in
which a security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02.
(c) The security interest created under each of the Non-Shared
Collateral Security Agreement and the Shared Collateral Security Agreement
constitutes a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in the Intellectual Property in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 6.02 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on
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registered trademarks, trademark applications and copyrights acquired or
registered by the Loan Parties after the Restatement Effective Date).
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date. Without affecting
the rights of Allied Waste or any Restricted Subsidiary hereunder at
all times prior to the Restatement Effective Date, the amendment and
restatement of the Original Credit Agreement in the form hereof and
obligations of the Lenders to make Loans and acquire participations in
Letters of Credit, the obligations of Tranche A Lenders to fund their
Tranche A Credit-Linked Deposits and the obligations of an Issuing Bank
to issue Letters of Credit hereunder shall become effective on the date
on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The following documents, each dated the Restatement
Effective Date (unless otherwise specified) are received by the Administrative
Agent in form and substance satisfactory to the Initial Lenders:
(i) for Allied Waste, the Borrower and each other Material
Loan Party, a copy of the organizational documents, as amended
and in effect, of such Material Loan Party certified (as of a
date reasonably close to the Restatement Effective Date) by the
Secretary of State of the jurisdiction of organization of such
Material Loan Party; a certificate from such Secretary of State
dated as of a date reasonably close to the Restatement Effective
Date as to the good standing of and organizational documents
filed by such Material Loan Party; and evidence from each
Material Loan Party that it is qualified to do business in each
jurisdiction where such qualification is required and where the
failure so to qualify could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(ii) for each of Allied Waste, the Borrower and each other
Material Loan Party, a certificate of the Secretary or an
Assistant Secretary of such Material Loan Party, dated the
Restatement Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws (or operating
or partnership agreement, where applicable) of such Material Loan
Party as amended and in effect at all times from the date on
which the resolutions referred to in clause (B) were adopted to
and including the date of such certificate, (B) that attached
thereto is a true and complete copy of resolutions (or consent by
members or partners, where applicable, to the extent required)
duly adopted by the board of directors (or members or partners,
where applicable) of such Material Loan Party authorizing the
execution, delivery and performance of such of the Loan Documents
to which such Material Loan Party is or is intended to be a party
and the extensions of credit hereunder, and that such resolutions
(or consent by members or partners, where applicable, to the
extent required) have not been modified, rescinded or amended and
are in full force and effect, (C) that the organizational
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documents of such Material Loan Party have not been amended since
the date of the certification thereto furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen
signature of each officer (or member or partner, where
applicable) of such Material Loan Party executing such of the
Loan Documents to which such Material Loan Party is intended to
be a party and each other document to be delivered by such
Material Loan Party from time to time in connection therewith
(and the Administrative Agent and each Lender may conclusively
rely on such certificate until it receives notice to the contrary
in writing from such Material Loan Party); and
(iii) for each Material Loan Party, a certificate of another
officer (or member or partner, where applicable) of such Material
Loan Party, dated the Restatement Effective Date, as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary, as the case may be, of such Material Loan Party;
(b) The Administrative Agent shall have received the Security
Documents duly executed by each of the intended parties thereto, together with:
(i) such appropriately completed copies of Uniform
Commercial Code financing statements as the Administrative Agent
or any Lender shall have requested covering the Collateral
described therein;
(ii) documents for recordation and filing of or with respect
to such Security Documents that the Administrative Agent or any
Lender may deem reasonably necessary or desirable in order to
perfect the Liens created thereby;
(iii) the stock certificates, if any, required to be
delivered pursuant to such Security Documents with respect to
each Material Loan Party, each accompanied by undated stock
powers executed in blank;
(iv) completed Perfection Certificates dated the Restatement
Effective Date and signed by an executive officer of the Borrower
or a Financial Officer, together with all attachments
contemplated thereby.
(c) The Administrative Agent shall have received a legal
opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in
substantially the form of Exhibit K-1 and otherwise reasonably satisfactory to
the Initial Lenders and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Allied Waste, in
substantially the form of Exhibit K-2 and otherwise reasonably satisfactory to
the Initial Lenders;
(d) The Initial Lenders shall have received a certificate of a
Financial Officer to the effect that:
(x) the representations and warranties (other than
the representation and warranty contained in Section 3.06) are
true and correct in all material respects on and as of
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the Restatement Effective Date or, if any such representation
or warranty is expressly stated to have been made as of a
specific date, as of such specific date (except, in the case
of representations and warranties relating to the business,
operations or condition of Allied Waste and its Subsidiaries,
to the extent any such failures to be true and correct,
individually or in the aggregate, could not, individually or
in the aggregate, reasonably be expected to result in a
Material Adverse Effect); and
(y) no event has occurred and is continuing that
constitutes a Default or an Event of Default.
(e) The Administrative Agent shall have received evidence of
the existence of all insurance required to be maintained by Allied Waste and its
Restricted Subsidiaries hereunder, together with evidence that the Collateral
Agent on behalf of the Secured Parties or Shared Collateral Secured Parties is
an additional insured or loss payee (in each case, to the extent required under
Section 5.02).
(f) The Administrative Agent shall have received the results
of a recent lien search in each of the jurisdictions requested by the
Administrative Agent, and such searches shall reveal no Liens on any of the
assets of any Loan Party except for Liens permitted by Section 6.02.
(g) The Administrative Agent shall have received evidence that
the Borrower shall have paid all fees required to be paid, and all reasonable
expenses for which invoices have been presented, on or before the Restatement
Effective Date (including, without limitation, the reasonable fees and expenses
of a single New York counsel and a single local counsel in each applicable
jurisdiction to the Administrative Agent and the Initial Lenders).
(h) The Administrative Agent shall have received evidence that
the Borrower shall have repaid (or is simultaneously repaying) all Loans or
other amounts outstanding under the Original Credit Agreement on the Restatement
Effective Date (other than Existing Letters of Credit), and that any breakage or
indemnity payments in connection with such repayment, to the extent invoiced
pursuant to the terms of the Original Credit Agreement, have been (or are
simultaneously being) paid.
(i) All requisite material governmental authorities shall have
approved or consented to the Transactions (except to the extent the failure to
obtain any such approvals or consents could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect) and
there shall be no governmental or judicial action, actual or threatened, that
has or could have a reasonable likelihood of restraining, preventing or imposing
burdensome conditions (except as previously disclosed to the Initial Lenders)
that could, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. The Administrative Agent shall have received a
certificate of an executive officer of the Borrower confirming that all material
governmental consents and approvals required in connection with the Transactions
have been received, except such consents and approvals
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that, if not obtained, could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(j) The Senior Note Offering shall have been consummated in
accordance with applicable law and the Borrower shall have received therefrom
aggregate gross cash proceeds of not less than $250,000,000. The material terms
and conditions of the 2003 Senior Notes and the provisions of the indenture and
other agreements and documents executed and delivered in connection with the
Senior Note Offering shall be reasonably satisfactory to the Initial Lenders,
each of whom shall have received copies of all such documents, certified by a
Financial Officer as being complete and correct in all material respects.
(k) The Equity Offerings shall have been consummated in
accordance with applicable law and Allied Waste shall have received therefrom
aggregate gross cash proceeds of not less than $350,000,000. The material terms
and conditions of each of the Common Equity Offering, the Mandatory Convertible
Offering and the securities issued in connection therewith and the provisions of
the agreements and documents executed in connection with each of the Common
Equity Offering and the Mandatory Convertible Offering shall be reasonably
satisfactory to the Initial Lenders, and each of the Initial Lenders shall have
received copies of all such agreements and documents, certified by a Financial
Officer as being complete and correct in all material respects.
(l) The Lenders shall be reasonably satisfied with (i) the
material terms and conditions of all agreements and documents executed and
delivered in connection with the other Transactions (to the extent consummated
on or before the Restatement Effective Date), (ii) the capitalization, structure
and equity ownership of Allied Waste and its subsidiaries after giving effect to
the Transactions and (iii) all material legal, accounting, tax and other matters
relating to the Transactions.
(m) Immediately after giving effect to the Transactions and
the other transactions contemplated by this Agreement to occur on the
Restatement Effective Date, Allied Waste and its Restricted Subsidiaries shall
have outstanding no Indebtedness or preferred stock other than (a) Indebtedness
outstanding under this Agreement, (b) the 2003 Senior Notes and (c) Indebtedness
and preferred stock set forth on Schedule 6.01.
(n) The Lenders shall have received a detailed financial model
of Allied Waste and its Restricted Subsidiaries, broken down by quarters, for
the years 2003 through 2010 in form and substance reasonably satisfactory to the
Initial Lenders.
(o) The Lenders shall have received the pro forma consolidated
balance sheet of Allied Waste referred to in Section 3.05(b), and such pro forma
consolidated balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders. The
Administrative Agent shall have received a certificate of a Financial Officer to
the effect that such pro forma consolidated balance sheet fairly presents, in
all material respects, the pro forma financial position of Allied Waste and its
Subsidiaries in accordance with GAAP.
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(p) There shall be no material litigation against any member
of the Allied Group or defaults under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other Material Agreement
to which any member of the Allied Group is a party or by which it or any of its
properties or assets are or may be bound, which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
The Administrative Agent shall notify Allied Waste, the Borrower and the Lenders
of the Restatement Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on June
30, 2003 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time). It is understood and agreed that no
term of the amendment and restatement contemplated hereby shall be effective
until the Restatement Effective Date occurs, and that this Agreement and the
Predecessor Security Documents shall continue in full force and effect in the
form applicable prior to the amendment and restatement contemplated hereby until
the Restatement Effective Date.
SECTION 4.02. Each Credit Event. The obligation of each
Revolving Lender to make a Revolving Loan on the occasion of any
Borrowing after the Restatement Effective Date, and of each Issuing
Bank to issue, amend, renew or extend any Letter of Credit after the
Restatement Effective Date, is subject to receipt of the request
therefor in accordance herewith and to the satisfaction of the
following conditions (each Borrowing and each issuance, amendment,
renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by Allied Waste and the
Borrower on the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section):
(a) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of
the date of such Borrowing or issuance, before and after giving
effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date
(or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific
date); and
(b) no event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the
proceeds therefrom, that constitutes a Default or an Event of
Default.
SECTION 4.03. Determinations Under Section 4.01. For purposes
of determining compliance with the conditions specified in Section
4.01, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders unless an officer of the Administrative
Agent responsible for the transactions contemplated by
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the Loan Documents shall have received written notice from such Lender
prior to the Restatement Effective Date specifying its objection
thereto and such Lender shall not have made available to the
Administrative Agent such Lender's ratable portion of the Borrowings
made on the Restatement Effective Date.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable to Lenders and
Issuing Banks hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Allied Waste and the Borrower covenants and agrees with the
Lenders that:
SECTION 5.01. Existence; Businesses and Properties. It will,
and will cause each of its Restricted Subsidiaries to:
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence,
except as otherwise expressly permitted under Section 6.06 and
except for failures by Restricted Subsidiaries to do so which
could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain,
preserve, or renew licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the
conduct of the business of Allied Waste and its Restricted
Subsidiaries, taken as a whole; maintain and operate such
business in substantially the manner in which it is presently
conducted and operated (provided that nothing set forth in this
Section 5.01(b) shall in any way limit the ability of --------
Allied Waste and its Restricted Subsidiaries to consummate any
acquisition or disposition permitted under this Agreement or
otherwise make changes in the conduct of their business not
prohibited by Section 6.10); comply with all applicable laws,
rules, regulations and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except for
failures to comply which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and at all times maintain and preserve all property
material to the conduct of such business and keep such property
in good repair, working order and condition and from time to time
make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection
therewith may be properly conducted at all times, except for
failures to maintain and preserve property that could not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
SECTION 5.02. Insurance. It will, and will cause each of its
Restricted Subsidiaries to:
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(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers, or by way of
adequate self-insurance; maintain such other insurance or
self-insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is
customary with companies in the same or similar businesses
operating in the same or similar locations, including public
liability insurance or self-insurance against claims for personal
injury or death or property damage occurring upon, in, about or
in connection with the use of any properties owned, occupied or
controlled by it; and maintain such other insurance or
self-insurance as may be required by law. All insurance policies
may provide for reasonable deductible amounts.
(b) Cause all such policies to be endorsed or amended to
include a "standard" or "New York" lender's loss payable
endorsement, in form and substance reasonably satisfactory to the
Administrative Agent, which endorsement shall provide that, from
and after the Restatement Effective Date, if the insurance
carrier shall have received written notice from the
Administrative Agent of the occurrence of an Event of Default,
the insurance carrier shall pay all proceeds otherwise payable to
any member of the Allied Group under such policies directly to
the Administrative Agent; and deliver original or certified
copies of all such policies to the Administrative Agent.
(c) If any separate or additional property, casualty or
"umbrella" insurance policy is known by a Responsible Officer to
have been obtained by any member of the Allied Group, notify the
Administrative Agent thereof promptly, and promptly deliver to
the Administrative Agent a duplicate original copy of such
policy.
SECTION 5.03. Obligations and Taxes. It will, and will cause
each of its Subsidiaries to, pay its Indebtedness and other obligations
promptly and in accordance with their terms and pay and discharge
promptly when due all Taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as
well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided that (x) such payment of
Indebtedness or claims for labor, material or supplies shall not be
required pursuant to this Section 5.03 to the extent failure to so pay
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and (y) such payment and discharge
shall not be required with respect to any such Tax, assessment, charge,
levy or claim so long as either (i) the validity or amount thereof
shall be contested in good faith by appropriate proceedings and Allied
Waste or the relevant Subsidiary shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such
contest operates to suspend collection of the contested obligation,
Tax, assessment or charge and enforcement of a Lien or (ii) such amount
not so paid or discharged is less than $50,000,000 in the aggregate.
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SECTION 5.04. Financial Statements, Reports, Etc. Allied Waste
shall furnish to the Administrative Agent (and the Administrative Agent
shall furnish to each Lender):
(a) within ten days after the filing with the Securities and
Exchange Commission of Allied Waste's Annual Report on Form 10-K
with respect to each fiscal year (and in any event within 105
days after the end of such fiscal year), (x) its Consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows showing the financial condition of Allied
Waste and its Restricted Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations
of such Restricted Subsidiaries during such year, all audited by
PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing acceptable to the
Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified in any material
respect) to the effect that such Consolidated financial
statements fairly present the financial condition and results of
operations of Allied Waste and its Restricted Subsidiaries on a
Consolidated basis in accordance with GAAP (it being understood
that such financial statements and opinion may be delivered, if
included therein, in the form of such Annual Report on Form 10-K
and any related Annual Report to Stockholders); and (y) a
calculation of the Leverage Ratio and Interest Coverage Ratio as
at the last day of and for such fiscal year;
(b) within seven days after the filing with the Securities
and Exchange Commission of Allied Waste's Quarterly Report on
Form 10-Q with respect to each of the first three fiscal quarters
of each fiscal year (and in any event within 60 days after the
end of each such fiscal quarter), (x) its Consolidated balance
sheet and related statements of operations, stockholders' equity
and cash flows showing the financial condition of Allied Waste
and its Restricted Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of
such Restricted Subsidiaries during such fiscal quarter and the
then elapsed portion of the fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial
condition and results of operations of Allied Waste and its
Restricted Subsidiaries on a Consolidated basis in accordance
with GAAP, subject to normal year-end audit adjustments and lack
of footnote disclosures (it being understood that such financial
statements may be delivered, if included therein, in the form of
such Quarterly Report on Form 10-Q); and (y) a calculation of the
Leverage Ratio and the Interest Coverage Ratio as at the last day
of such fiscal quarter and for the Rolling Period then ended;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of the accounting
firm or Financial Officer opining on or certifying such
statements (which certificate, when furnished by an accounting
firm, may be limited to accounting matters and disclaim
responsibility for legal interpretations) (i) certifying that in
making its examination in connection with rendering such opinion
or certificate with respect to such statements, such Person has
not obtained knowledge that an Event of Default or, if such
certificate is of a Financial Officer, a Default has occurred or,
if such Financial Officer has obtained knowledge that an Event of
Default or, if such
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certificate is of a Financial Officer, Default has occurred,
specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto, (ii)
setting forth computations in reasonable detail satisfactory to
the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.04, 6.05, 6.06, 6.08, 6.13,
6.14 and 6.15 and (iii) identifying in reasonable detail, and
setting forth the amounts of, all Designated Excess Cash
Expenditures and Non-Core Asset Sales made during the periods
covered by such financial statements;
(d) promptly upon request by the Administrative Agent (on
its own behalf or at the request of any Lender), but only after
the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by any
member of the Allied Group with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the
case may be;
(e) at the time required for delivery of financial
statements pursuant to paragraph (a) or (b) of this Section, (x)
a report in form and substance reasonably satisfactory to the
Administrative Agent of all Permitted Acquisitions consummated
during the most recent fiscal quarter covered by such financial
statements, which report shall identify, inter alia, each
Permitted Acquisition having total Acquisition Consideration of
$25,000,000 or more (a "Large Acquisition") and, for each Large
Acquisition, a description of the total Acquisition Consideration
therefor; and (y) a list of all entities that became or ceased to
be Domestic Subsidiaries of Allied Waste during such fiscal
quarter;
(f) promptly from time to time, such other information
regarding the operations, business affairs and financial
condition of members of the Allied Group, or compliance with the
terms of any Loan Document, as the Administrative Agent or any
Lender acting through the Administrative Agent may reasonably
request; and
(g) within 90 days after the beginning of each fiscal year,
a copy of the annual forecasts of Allied Waste, prepared by
management of Allied Waste, in each case in form and detail
reasonably satisfactory to the Administrative Agent, consisting
of Consolidated balance sheets and related statements of
operations and cash flows of Allied Waste and its Restricted
Subsidiaries for such fiscal year and for each of the following
fiscal years occurring in whole or in part during the term of
this Agreement.
Notwithstanding anything to the contrary in paragraphs (a) or (b)
of this Section, the Borrower may satisfy its obligations to
deliver financial statements thereunder by delivering
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consolidated financial statements including the results of
operations, assets and liabilities of consolidated Unrestricted
Subsidiaries that are Insurance Subsidiaries or RMI Subsidiaries.
SECTION 5.05. Litigation and Other Notices. It will, and will
cause each of its Restricted Subsidiaries to, furnish to the
Administrative Agent, each Issuing Bank and each Lender:
(a) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Default or Event of Default has occurred, specifying the
nature and extent thereof and the corrective action (if any) taken or
proposed to be taken with respect thereto;
(b) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice of the filing or commencement of, or of any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against any member of the Allied Group that
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(c) prompt written notice of any development known to any
Responsible Officer that has had, or could, individually or in the
aggregate, reasonably be expected to have, a Material Adverse Effect;
and
(d) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Change in Control has occurred or is reasonably likely
to occur.
SECTION 5.06. Employee Benefits. It will, and will cause each
of its Subsidiaries to:
(a) comply with the applicable provisions of ERISA and the Code
(excluding, however, noncompliance that could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect); and
(b) furnish to the Administrative Agent as soon as possible
after, and in any event within 10 days after any Responsible Officer
has knowledge that, any ERISA Event has occurred and is then
outstanding that, alone or together with any other ERISA Event could
reasonably be expected to result in liability of any member of the
Allied Group in an aggregate amount exceeding $5,000,000 or requiring
payments by any member of the Allied Group exceeding $2,500,000 in any
year, a statement of a Financial Officer, setting forth details as to
such ERISA Event and the action, if any, that Allied Waste proposes to
take with respect thereto.
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SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. It will, and will cause each of its Restricted
Subsidiaries to, keep proper books of record and account sufficient to
permit the preparation of financial statements in conformity with GAAP.
Each of Allied Waste and the Borrower will, and will cause each of its
Restricted Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender that are informed of the
confidentiality provisions set forth in Section 9.12 of this Agreement
and agree to be bound by such provisions to visit and inspect (at the
expense of the Lenders unless an Event of Default has occurred and is
continuing, in which case at the expense of the Borrower) the records,
books, accounts and the properties of members of the Allied Group at
reasonable times, with reasonable notice and without causing material
disruption, and as often as reasonably requested and to make extracts
from and copies of such records, books and accounts and permit any
representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances and condition of members of the Allied
Group with the officers thereof and independent accountants therefor
(subject to reasonable requests of confidentiality, including
requirements imposed by law or contract).
SECTION 5.08. Environmental Laws. It will, and will cause each
of its Subsidiaries to:
(a) comply, and use commercially reasonable efforts to cause
all lessees and other Persons occupying its Properties to comply,
in all respects with all Environmental Laws and Environmental
Permits applicable to its operations and Properties; obtain and
renew all Environmental Permits necessary for its operations and
Properties; maintain appropriate financial assurance mechanisms
in connection with its landfill operations as required under
Environmental Law; and conduct any remedial action in accordance
with Environmental Laws, except where such noncompliance or
failure to obtain or renew Environmental Permits, maintain
financial assurance mechanisms or to conduct any remedial action
could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; provided that no
member of the Allied Group shall be required to conduct remedial
actions to the extent that any applicable obligation to do so is
being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances; and
(b) with respect to any Permitted Acquisition having
Acquisition Consideration in excess of $50,000,000, and any
acquisition of any other ownership or leasehold interest in, or
the entry into any agreement to conduct operations of, any
landfill, transfer station or other waste treatment or disposal
facility the total value of which is in excess of $50,000,000,
prior to consummating any such acquisition or commencement of any
operations under any such agreement or lease, obtain and review a
written assessment, prepared by an environmental consulting firm
recognized within the municipal solid waste industry and among
environmental professionals as competent and reputable and which
the Borrower has reasonably determined to be suitable, that
reasonably addresses compliance with Environmental Law and
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material Environmental Liabilities associated with the subject of
such acquisition, agreement or lease.
SECTION 5.09. Preparation of Environmental Reports. If a
Default or Event of Default caused by reason of a breach of Section
3.16 or 5.08 shall have occurred and be continuing, the Administrative
Agent is authorized to engage an environmental consulting firm selected
by the Administrative Agent reasonably acceptable to Allied Waste to
prepare, on behalf of the Administrative Agent, the Lenders and the
Issuing Banks but at the sole cost and expense of the Borrower, an
environmental site assessment report for the Properties which are the
subject of such default, which environmental site assessment report
shall estimate the cost of any compliance or remedial action (if such
costs are reasonably ascertainable) and evaluate potentially material
Environmental Claims and potentially material Environmental Liabilities
in connection with such Properties. Each of Allied Waste and the
Borrower will, and will cause each of its Subsidiaries to, cooperate
fully with the Administrative Agent and such environmental consulting
firms in their preparation of such environmental assessment reports,
including (without limitation), permitting any representatives
designated by the Administrative Agent or such environmental consulting
firms that are informed of the confidentiality provisions set forth in
Section 9.12 and agree to be bound by such provisions to visit and
inspect the related Properties at reasonable times and as often as
reasonably requested and to make extracts from and copies of
environmental records of the members of the Allied Group. If requested
by the Borrower, the Borrower shall be entitled to have access to the
data relating to such environmental assessment reports.
SECTION 5.10. Further Assurances. It will, and will cause each
of its Restricted Subsidiaries (other than Inactive Subsidiaries) to:
(a) Authorize or execute any and all further documents,
financing statements, agreements and instruments, and take all
further action (including, without limitation, filing Uniform
Commercial Code and other financing statements) that the Required
Lenders or the Administrative Agent may reasonably request in
order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect
the validity and first priority of the security interests created
or intended to be created by the Security Documents (subject to
Liens permitted by the Loan Documents).
(b) Take such action from time to time as shall be necessary
to ensure that all Specified Subsidiaries (including Specified
Subsidiaries formed or acquired pursuant to Permitted
Acquisitions) are parties to the Subsidiary Guarantee Agreement
hereunder, that all of the capital stock or other ownership
interests of Specified Subsidiaries owned by the Borrower or the
Specified Subsidiaries is pledged to the Collateral Agent or the
Collateral Trustee pursuant to the applicable Security Document
and that substantially all of the personal property of the
Borrower and the Specified Subsidiaries (including assets
acquired pursuant to Permitted Acquisitions) is pledged to the
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Collateral Agent or the Collateral Trustee pursuant to the
applicable Security Document; provided, however, that the
foregoing shall not apply to Subsidiaries with unaffiliated
minority holders of Voting Stock which do not provide the
required consent to such Subsidiary Guarantee Agreement or such
other applicable Security Document; provided, further, that
Allied Waste and the Borrower shall use commercially reasonable
efforts to obtain any such required consents. Without limiting
the generality of the foregoing, in the event that Allied Waste
or any of the Specified Subsidiaries shall form or acquire any
new Subsidiary after the date hereof that shall constitute a
Specified Subsidiary, and in connection with each Permitted
Acquisition, Allied Waste and the Specified Subsidiaries will,
promptly after such formation or Permitted Acquisition (but
subject to the first proviso set forth in the immediately
preceding sentence):
(i) cause each new Specified Subsidiary to become
party to the Subsidiary Guarantee Agreement, a "Grantor" under
the Non-Shared Collateral Security Agreement or, if a
subsidiary of BFI, the Shared Collateral Security Agreement,
and, if applicable, a "Pledgor" under the Non-Shared
Collateral Pledge Agreement or the Shared Collateral Pledge
Agreement;
(ii) take and cause each new Specified Subsidiary to
take such action (including, without limitation, delivering
such shares of stock or other certificated ownership interests
and delivering such Uniform Commercial Code financing
statements) as shall be necessary to create and perfect valid
and enforceable first priority Liens (subject only to Liens
permitted by the Loan Documents) on substantially all of the
personal property of such new Specified Subsidiary and on
substantially all of the personal property acquired pursuant
to each Permitted Acquisition, as collateral security for the
Obligations hereunder and under the other Loan Documents;
(iii) deliver all certificates evidencing capital
stock or other ownership interests in such new Specified
Subsidiary owned by members of the Allied Group, each
accompanied by undated stock powers executed in blank; and
(iv) deliver such proof of corporate or other
Borrower action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by
each Loan Party pursuant to Section 4.01 on the Restatement
Effective Date.
(c) At its own cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or
created, perfected security interests with respect to such of its
assets and properties (other than Securitization Assets sold or
purported to be sold in a Securitization permitted under this
Agreement) as the Collateral Agent or the Required Lenders shall
designate (it being understood that it is the intent of the
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parties that the Obligations shall be secured by, among other
things, substantially all the assets of the Loan Parties and
other properties acquired subsequent to the Restatement Effective
Date, except for assets of a type that are not subject to a Lien
granted under the Security Documents on the Restatement Effective
Date). Such security interests and Liens will be created under
Security Documents in form and substance satisfactory to the
Collateral Agent, and shall be accompanied by all such
instruments and documents (including legal opinions and lien
searches) as the Collateral Agent or Collateral Trustee shall
reasonably request.
Notwithstanding the foregoing provisions of this Section 5.10, no Loan Party
shall be required to pledge or create security interests in (i) landfills or
vehicles covered by a certificate of title unless the Administrative Agent
acting at the direction of the Required Lenders shall specifically request the
same (which requests may be given from time to time and may relate to all or
only specified landfills owned by members of the Allied Group), (ii) any assets
(excluding capital stock of subsidiaries) of such Loan Party with respect to
which the creation of such pledge or such security interest is prohibited by a
contract or other agreement of such Loan Party (x) existing on the Restatement
Effective Date or (y) entered into after the Restatement Effective Date in
compliance with the provisions hereof, (iii) capital stock of any Foreign
Subsidiary in excess of 65% thereof or (iv) capital stock of any Unrestricted
Subsidiary (other than a Securitization Vehicle).
SECTION 5.11. Compliance with Terms of Leaseholds. It will
make, and will cause each of its Restricted Subsidiaries to make, all
payments and otherwise perform all material obligations in respect of
all Material Leases to which a member of the Allied Group is a party,
keep such Material Leases in full force and effect and not allow such
Material Leases to lapse or be terminated or any rights to renew such
Material Leases to be forfeited or canceled, notify the Administrative
Agent of any default by any party with respect to such Material Leases
and cooperate with the Administrative Agent in all respects to cure any
such default and cause each of Allied Waste's Restricted Subsidiaries
to do so, except, in any case, where the failure to do any of the
foregoing, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.12. Performance of Material Agreements. It will, and
will cause each of its Restricted Subsidiaries to perform and observe
all of the terms and provisions of each Material Agreement, maintain
each such Material Agreement in full force and effect, enforce such
Material Agreement in accordance with its terms, except, in any case,
where the failure to do any of the foregoing could not, either
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 5.13. Information Regarding Collateral. (a) Allied
Waste and the Borrower will furnish to the Administrative Agent
quarterly, within 15 days after the end of each fiscal quarter, a
report setting forth any change (i) in any corporate name of a Loan
Party, (ii) in the location of any Loan Party's jurisdiction of
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incorporation or formation, (iii) in any Loan Party's corporate
structure or (iv) in any Loan Party's Federal Taxpayer Identification
Number or other identification number assigned by such Loan Party's
jurisdiction of incorporation or formation.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.04, Allied Waste and the Borrower shall deliver to the Administrative
Agent a certificate of a Financial Officer setting forth the information
required pursuant to Sections 1, 2, 7, 8, 9 and 10 of the Perfection
Certificates or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Restatement
Effective Date or the date of the most recent report delivered pursuant to
paragraph (a) of this Section.
SECTION 5.14. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written
notice of any casualty or other insured damage to any material portion
of any Collateral or the commencement of any action or proceeding for
the taking of any Collateral or any part thereof or interest therein
under power of eminent domain or by condemnation or similar proceeding
and (b) will ensure that the Net Available Proceeds of any such event
(whether in the form of insurance proceeds, condemnation awards or
otherwise) are collected and applied in accordance with the applicable
provisions of the Loan Documents.
SECTION 5.15. Compliance with Laws. It will, and will cause
each of its Restricted Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it
or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.16. Use of Proceeds and Letters of Credit. The
proceeds of the Restatement Term Loans and the Revolving Loans made on
the Restatement Effective Date, together with the proceeds of the
Equity Offerings, the March 2003 Securitization and the Senior Note
Offering, will be used only for the payment of (a) fees and expenses
payable in connection with the Transactions and (b) the repayment of
amounts outstanding and other obligations under this Agreement. The
proceeds of the Revolving Loans and Swingline Loans made after the
Restatement Effective Date will be used only for Optional Repurchases
of the 7.88% Notes, Permitted Acquisitions, Investments permitted by
Section 6.05, the payment of premiums, accrued interest, and fees and
expenses in connection with any Permitted Refinancing Transaction or
Permitted Public Notes Refinancing Transaction allowed hereunder or any
Optional Repurchase of Refinanceable Indebtedness with the proceeds of
Original Tranche C Term Loans or of Tranche D Term Loans permitted
hereby, and for general corporate purposes, including working capital.
The proceeds of the Original Tranche C Term Loans and of Tranche D Term
Loans will be used solely to effect Optional Repurchases of
Refinanceable Indebtedness or to prepay Term Loans as required by
Section 2.11(f). The proceeds of Original Tranche C Term Loans or
Tranche D Term Loans or of other issuances of Indebtedness which are
required or permitted by this Agreement to be applied to the
refinancing or repayment of other Indebtedness may be used to
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temporarily prepay Revolving Loans pending such application and may be
subsequently reborrowed as Revolving Loans (subject to satisfaction of
applicable conditions) and applied to such refinancing or repayment,
and any such reborrowing and application will be deemed a use of such
original proceeds for purposes hereof. Letters of Credit will be used
solely to support payment obligations incurred in the ordinary course
of business. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of
Regulations U or X of the Board.
SECTION 5.17. Interest Rate Protection. As promptly as
practicable, and in any event within 90 days after the Restatement
Effective Date, the Borrower will enter into, and thereafter for a
period of not less than 3 years will maintain in effect, one or more
interest rate protection agreements on such terms and with such parties
as shall be reasonably satisfactory to the Initial Lenders, the effect
of which shall be to fix or limit the interest cost to the Borrower
with respect to at least 50% of the total Indebtedness for borrowed
money of Allied Waste and its Restricted Subsidiaries (including the
Loans) at the time outstanding.
SECTION 5.18. Delivery of Collateral. As promptly as
practicable, and in any event within 30 days after the Restatement
Effective Date, the Borrower shall have delivered, or caused the
applicable Subsidiary to deliver, to the Administrative Agent the stock
certificates, if any, required to be delivered pursuant to the Security
Documents with respect to each Loan Party that is not a Material Loan
Party.
SECTION 5.19. Termination of Liens. The Borrower will deliver
to the Administrative Agent, as soon as practicable and in no event
later than 60 days after the date on which the Administrative Agent has
provided notice to the Borrower that it will be required to release the
applicable Liens as provided below (provided that such 60 day period
may be extended by the Administrative Agent in its discretion by an
additional 60 days if the Administrative Agent is satisfied with the
progress thereof), Form UCC-3 financing statements in form and
substance reasonably satisfactory to the Administrative Agent
terminating each of the existing liens listed on Schedule 6.02(b)
(collectively, the "Existing Liens") and any other Liens requested by
the Administrative Agent that are set forth in lien search results
received on or after the Restatement Effective Date (the "Additional
Scheduled Liens") and any other documents reasonably requested by the
Administrative Agent for the purpose of the terminating such Existing
Liens and Additional Scheduled Liens; provided that the Administrative
Agent may waive such termination requirement for any such Existing Lien
or Additional Scheduled Lien if, in its sole judgment, such Lien is
insignificant or is otherwise permitted pursuant to Section 6.02 (and
all such Liens shall be deemed to be part of Schedule 6.02(a)) or the
UCC-1 financing statement filing to be terminated relates to
obligations that have been repaid or extinguished.
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ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable to Lenders and
Issuing Banks hereunder have been paid in full and all Letters of Credit have
expired or been terminated and all LC Disbursements shall have been reimbursed,
each of Allied Waste and the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a)
Allied Waste and the Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any
Indebtedness or any Attributable Debt in respect of Sale and Leaseback
Transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness (including Guarantees) existing on the
Effective Date and set forth on Schedule 6.01 and Indebtedness
issued pursuant to any ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ after July 31, 1999 and
prior to the Restatement Effective Date;
(iii) Hedging Agreements permitted pursuant to Section 6.07;
(iv) Acquired Indebtedness of a Restricted Subsidiary
acquired after the Restatement Effective Date and Acquired
Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Restricted Subsidiary after the
Restatement Effective Date, which Indebtedness in each case
exists at the time of such acquisition, merger, consolidation
or conversion into a Restricted Subsidiary and is not created
in contemplation of such event and where such acquisition,
merger or consolidation is permitted by this Agreement;
provided that the Borrower and the Restricted Subsidiaries
comply with the provisions of Section 5.10 with respect to any
such acquired or newly formed Restricted Subsidiary;
(v) unsecured Indebtedness of Allied Waste, the Borrower or
any Restricted Subsidiary that is issued to a seller of an
Acquired Business and incurred in connection with a Permitted
Acquisition;
(vi) unsecured Guarantees in respect of Indebtedness
permitted pursuant to subparagraphs (iv), (v), (xii), (xiii),
(xiv), (xv) and (xvii) of this Section 6.01(a); provided that
any Guarantees in respect of Indebtedness that is subordinated
to any of the Obligations or to Guarantees of the Obligations
shall also be subordinated to the Obligations or to the
Guarantees in favor of the Lenders under the Loan Documents,
as the case may be, to the same extent as such Indebtedness is
subordinated to any of the Obligations;
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(vii) Indebtedness of the Borrower or any
Subsidiary Loan Party to any other Subsidiary or the Borrower,
so long as such Indebtedness is subordinated to all
Obligations pursuant to terms substantially the same as those
set forth on Annex A hereto;
(viii) (A) Indebtedness (i) of Allied Waste to the
Borrower or any wholly owned Subsidiary, so long as the
proceeds of such Indebtedness are used by Allied Waste solely
for purposes permitted under Section 6.10, or (ii) of the
Borrower or any wholly owned Restricted Subsidiary to Allied
Waste; provided that all Indebtedness issued pursuant to this
clause (viii)(A) shall be subordinated to the Obligations
pursuant to terms substantially the same as those set forth on
Annex A hereto, and (B) Indebtedness of Allied Waste, the
Borrower or any Restricted Subsidiary to any Insurance
Subsidiary; provided that the aggregate amount of Indebtedness
incurred pursuant to this clause (viii)(B) at any time
outstanding shall not exceed $375,000,000;
(ix) Indebtedness of the Borrower and Allied
Waste under the Allied Guarantee;
(x) Indebtedness (including tax exempt
financings and Capital Lease Obligations) and Attributable
Debt of the Borrower or the Restricted Subsidiaries incurred
after the Effective Date to finance Capital Expenditures
permitted under Section 6.15 or in connection with Sale and
Leaseback Transactions permitted by Section 6.04; provided
that (A) such Indebtedness or Attributable Debt is incurred
prior to or within 120 days after the acquisition, completion
of construction, refurbishment or improvement of the fixed or
capital assets being financed and does not exceed 100% of the
cost thereof (including related financing fees and costs) and
(B) the aggregate principal amount of Indebtedness and
Attributable Debt incurred pursuant to this paragraph (x)
outstanding at any time shall not exceed the greater of (I)
$700,000,000 and (II) an amount equal to 5% of Consolidated
Total Assets;
(xi) Indebtedness of Allied Waste or any
Restricted Subsidiary that may be deemed to exist in
connection with agreements providing for indemnification,
purchase price adjustments, earn-outs and similar obligations
in connection with acquisitions or sales of assets and/or
businesses effected in accordance with the requirements of
this Agreement;
(xii) Refinancing Indebtedness (other than
Qualifying Senior Secured Indebtedness or other Senior Secured
Indebtedness) in respect of Indebtedness permitted under
subparagraph (ii) or (iv) of this Section 6.01(a);
(xiii) Qualifying Senior Secured Indebtedness;
provided that the Net Available Proceeds thereof are (x) to
the
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extent required by Section 2.11, applied to the prepayment of
Term Loans and (y) to the extent not required to be applied to
the prepayment of Term Loans, obtained in a transaction
constituting a Permitted Refinancing Transaction in respect of
Tergeted Senior Secured Indebtedness and used to repay, redeem
or repurchase such Targeted Senior Secured Indebtedness;
(xiv) Permitted Subordinated Debt constituting
Refinancing Indebtedness in respect of Refinanceable
Indebtedness and issued in a Permitted Refinancing
Transaction; provided that any Net Available Proceeds not
applied to the repurchase, redemption, repayment or, subject
to the limitation set forth in the definition of Refinancing
Indebtedness, defeasance of such Refinanceable Indebtedness
shall be applied to the prepayment of Term Loans to the extent
required by Section 2.11;
(xv) Qualifying Senior Secured Indebtedness or
Permitted Subordinated Debt (in addition to Qualifying Senior
Secured Indebtedness and Permitted Subordinated Debt that is
incurred pursuant to clause (xiii) or (xiv) of this Section
6.01(a)) issued for cash consideration; provided that 100% of
the Net Available Proceeds from the issuance thereof are
applied to the prepayment of Term Loans in accordance with
Section 2.11;
(xvi) Indebtedness consisting of reimbursement
obligations under surety, indemnity, performance, release and
appeal bonds and guarantees thereof, in each case securing
obligations not constituting Indebtedness for borrowed money
and obtained in the ordinary course of business;
(xvii) Indebtedness of Foreign Subsidiaries,
Insurance Subsidiaries, and other Restricted Subsidiaries that
are not Subsidiary Loan Parties incurred after the Effective
Date in an aggregate principal amount outstanding at any time
not exceeding the greater of (1) $280,000,000 and (2) 2% of
Consolidated Total Assets;
(xviii) unsecured Indebtedness of the Borrower or
Allied Waste in addition to Indebtedness permitted by
paragraphs (i) through (xvii) above; provided that (x) such
Indebtedness is issued for cash consideration, has a longer
weighted average life than the Term Loans hereunder, is not
Guaranteed by any Restricted Subsidiary of the Borrower and is
permitted pursuant to Section 6.14 and (y) 100% of the Net
Available Proceeds of such Indebtedness are utilized to prepay
Term Loans in accordance with Section 2.11;
(xix) contingent liabilities arising out of
endorsements of checks and other negotiable instruments for
deposit or collection in the ordinary course of business;
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(xx) other Indebtedness of Allied Waste, the
Borrower and the Restricted Subsidiaries in an aggregate
principal amount outstanding at any time not exceeding the
greater of (1) $420,000,000 and (2) 3% of Consolidated Total
Assets;
(xxi) all premiums (if any), interest (including
post-petition interest and other than capitalized interest),
fees, expenses, indemnities, charges and additional or
contingent interest on obligations described in clauses (i)
through (xx) above;
(xxii) Indebtedness consisting of representations,
warranties, covenants and indemnities made by, and repurchase
and other obligations of, the Borrower or any Restricted
Subsidiary in connection with Securitizations permitted by
Sections 6.05 and 6.06; provided that such representations,
warranties, covenants, indemnities and repurchase and other
obligations are of the type customarily included in
securitizations of accounts receivable intended to constitute
true sales of such accounts receivable to a securitization
vehicle; and
(xxiii) Qualifying Senior Secured Indebtedness (in
addition to that permitted pursuant to clauses (xiii) and (xv)
above) and Qualifying Senior Unsecured Indebtedness (x) issued
after August 1, 2003, and on or prior to March 30, 2004 in
Permitted Public Notes Refinancing Transactions or (y) issued
after March 30, 2004 in Permitted Public Notes Refinancing
Transactions in an aggregate principal amount for this clause
(y) not in excess of $1,100,000,000, provided that the
aggregate principal amount of Qualifying Senior Secured
Indebtedness issued pursuant to this clause (y) shall not
exceed $500,000,000 less amount of Tranche D Loans minus the
amount of Net Available Proceeds from Securitizations utilized
to effect Optional Repurchases in accordance with Section
6.06(g) and Section 2.11(c) and, provided further, that, in
the case of any issuance of Qualifying Senior Secured
Indebtedness or Qualifying Senior Unsecured Indebtedness
issued pursuant to this clause (xxiii), the Net Available
Proceeds thereof not applied to the repurchase of
Refinanceable Public Notes shall be applied to the prepayment
of Term Loans as required by Section 2.11.
(b) Neither Allied Waste nor the Borrower will, nor will they
permit any Restricted Subsidiary to, issue any Preferred Stock or other
preferred Equity Interests, other than the Sponsor Preferred Stock, the
Mandatory Convertible Securities and Non-Cash Pay Preferred Stock of Allied
Waste or the Borrower.
SECTION 6.02. Liens. Neither Allied Waste nor the Borrower
will, nor will it cause or permit any of the Restricted Subsidiaries to, create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any Person, including any Subsidiary of Allied
Waste) now owned or
111
hereafter acquired by it or on any income or revenues or rights in respect of
any thereof, except:
(a) Liens on properties or assets of members of the Allied
Group existing on the Restatement Effective Date and set forth in
Schedule 6.02; provided that such Liens shall secure only those
obligations (and extensions, renewals and refinancings thereof
permitted hereby) which they secure on the Restatement Effective Date;
(b) Liens created under the Loan Documents;
(c) Permitted Encumbrances;
(d) purchase money security interests in, and security
interests arising in connection with a Sale and Leaseback Transaction
involving, real property, improvements thereto, equipment or other
fixed assets hereafter acquired (or, in the case of improvements,
equipment or other fixed assets, constructed or refurbished) by the
Borrower or any Subsidiary (including such security interests arising
out of Capital Lease Obligations); provided that (i) such security
interests secure Indebtedness or Attributable Debt permitted by Section
6.01(a)(x), (ii) such security interests are incurred, and the
Indebtedness or Attributable Debt secured thereby is created, within
120 days after such acquisition (or completion of such construction) or
refurbishment, (iii) the Indebtedness or Attributable Debt secured
thereby does not exceed 100% of the cost of such real property,
improvements or equipment at the time of such acquisition (or
construction or refurbishment) and (iv) such security interests do not
apply to any other property or assets of the Borrower or any Restricted
Subsidiary (other than the proceeds of the real property, improvements,
equipment or other fixed assets subject to the Lien);
(e) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02, provided that such Lien does not
apply to any additional property or assets of Allied Waste, the
Borrower or any Subsidiary (other than (i) property or assets acquired
after the issuance or incurrence of such Refinancing Indebtedness that
would have been subject to the Lien securing the Indebtedness that such
Refinancing Indebtedness refinanced if such Indebtedness had not been
refinanced, (ii) additions to the property or assets subject to the
Lien and (iii) the proceeds of the property or assets subject to the
Lien);
(f) any Lien on the property or assets of an Acquired Business
(other than on the stock or Equity Interests of a Subsidiary) securing
Indebtedness permitted by Section 6.01(a)(iv); provided that such Lien
existed at the time of and was not created in contemplation of the
acquisition of such Acquired Business;
(g) Liens arising from Uniform Commercial Code financing
statements and similar documents filed on a precautionary basis
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in respect of operating leases intended by the parties to be true
leases (other than any such leases entered into in violation of this
Agreement);
(h) any Lien on the property or assets of any Foreign
Subsidiary, Insurance Subsidiary or other Restricted Subsidiary that is
not a Subsidiary Loan Party securing Indebtedness permitted by Section
6.01(a)(xvii);
(i) additional Liens on property (but not on the capital stock
or other ownership interests of any Subsidiary owned by the Borrower,
Allied Waste or any Subsidiary Loan Party) to secure Indebtedness
(including, without limitation, Capital Lease Obligations in addition
to those permitted by paragraph (d) of this Section 6.02) so long as
neither the outstanding aggregate principal amount of such Indebtedness
nor the aggregate book value of assets subject to such Liens at any
time exceeds the greater of (1) $350,000,000 and (2) 2.5% of
Consolidated Total Assets;
(j) any Lien pursuant to Environmental Law for costs or
damages which are not yet due (by virtue of a written demand for
payment by a Governmental Authority) or which are being contested in
compliance with the standard set forth in section 5.08(a), or on
property that the Borrower or a Subsidiary has determined to abandon if
the sole recourse for such costs or damages is to such property;
provided that the liability of the Borrower and the Subsidiaries with
respect to the matters giving rise to all such Liens shall not, in the
reasonable estimate of the Borrower (in light of all attendant
circumstances, including the likelihood of contribution by third
parties), exceed the greater of (i) $280,000,000 and (ii) 2% of the
Consolidated Total Assets;
(k) all Liens created under the Shared Collateral Security
Agreement and the Shared Collateral Pledge Agreement securing
obligations in respect of the Qualifying Senior Secured Indebtedness
permitted to be issued pursuant to Section 6.01(a); provided that such
obligations are initially secured under such agreements at or about the
time of the issuance thereof;
(l) Liens in favor of any Securitization Vehicle or any
collateral agent on Securitization Assets transferred or purported to
be transferred to such Securitization Vehicle in connection with
Securitizations permitted by Sections 6.05 and 6.06; and
(m) Liens on any assets securing any premium, interest
expense, fee, indemnity, charge or other expense permitted by Section
6.01(a)(xxi), but only to the extent that the underlying Indebtedness
is also secured by such assets.
Neither Allied Waste, the Borrower, nor any Restricted Subsidiary will issue or
assume any Indebtedness (other than Indebtedness issued pursuant to any 2001
Indenture secured only by the Shared Collateral) under the AWNA Senior Note
Indenture (other than the AWNA Senior Notes outstanding on the date hereof), the
BFI Indenture (other than the BFI
113
Indenture Debt outstanding on the date hereof) or any supplement or amendment
thereto if such Indebtedness would be entitled to be secured on a pari passu
basis with the Obligations or otherwise by any Lien on any Collateral securing
the Obligations.
SECTION 6.03. No Other Negative Pledge. Allied Waste will not,
nor will it cause or permit any of its Restricted Subsidiaries to, enter into
any agreement prohibiting or conditioning (including pursuant to any pari passu
security requirement) the creation or perfection of any Lien upon any of its
property or assets, other than:
(i) in favor of the Lenders, the Issuing Banks
or the Secured Parties;
(ii) in favor of the holders of Permitted
Subordinated Debt; provided that such agreement does not so
restrict Liens securing the Obligations;
(iii) in connection with Indebtedness that may be
secured by a Lien or in connection with obligations secured by
Permitted Encumbrances in compliance with ▇▇▇▇▇▇▇ ▇.▇▇(▇),
(▇), (▇), (▇), (▇), (▇), (▇), (▇) or (l); provided that such
prohibition or condition does not apply to any property or
assets now or hereafter in existence not subject to such Lien;
(iv) in connection with any lease permitted under
Section 6.04 solely to the extent that such lease prohibits a
Lien on the lease or the property subject to such lease;
(v) pursuant to any agreement entered into by
any member of the Allied Group in connection with an Asset
Sale for the period beginning with the date such agreement is
entered into through the date such Asset Sale is consummated;
provided that (x) such negative pledge shall only relate to
the property being sold pursuant to such Asset Sale and (y)
such Asset Sale is permitted hereunder; or
(vi) pursuant to Section 9.14 of this Agreement.
SECTION 6.04. Sale and Lease-Back Transactions. Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
enter into any Sale and Leaseback Transaction; provided that the Borrower or any
Restricted Subsidiary may enter into any such transaction that (i) does not
result in Capital Lease Obligations or Attributable Debt not permitted by
Section 6.01(a)(x) and (ii) does not result in any Liens other than Liens
permitted by Section 6.02(d).
SECTION 6.05. Investments, Loans, Guarantees and Acquisitions.
Allied Waste will not, and will not permit any of its Restricted Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Restricted Subsidiary prior to such merger) any
Investment in any
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other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(a) Investments by Allied Waste and the Borrower (i) existing
on the Effective Date and (ii) made after the Effective Date in the
capital stock or other ownership interests of the Borrower and entities
that, prior to and after such investments, are Loan Parties; loans or
advances by the Borrower or any Loan Party to the Borrower or any Loan
Party; and loans or advances by the Borrower or any Loan Party to
Allied Waste or by Allied Waste to the Borrower or any Loan Party;
provided that in any event no Loan Party shall make any Investments in,
or loans or advances to, any Insurance Subsidiary, any Foreign
Subsidiary, any Restricted Subsidiary that is not a Loan Party or any
Unrestricted Subsidiary after the date hereof (other than in accordance
with clause (h) and (r) below);
(b) Permitted Investments;
(c) Investments by the members of the Allied Group existing on
the Restatement Effective Date and set forth in Schedule 6.05;
(d) loans and advances to employees of members of the Allied
Group (including for travel, entertainment and relocation expenses) in
the ordinary course of their business;
(e) loans by members of the Allied Group to their employees in
connection with management incentive plans not to exceed $25,000,000 at
any time outstanding; provided that such limitation shall not apply to
loans the proceeds of which are used to purchase common stock of Allied
Waste;
(f) guarantees not constituting Indebtedness by Allied Waste
or any Restricted Subsidiary of any contractual obligation (other than
Indebtedness) of the Borrower or any Loan Party;
(g) Investments in the capital stock or other ownership
interests of any Subsidiary Loan Party; provided that (i) such capital
stock or interest is pledged to the Collateral Agent or the Collateral
Trustee pursuant to the Non-Shared Collateral Pledge Agreement or the
Shared Collateral Pledge Agreement and (ii) Allied Waste, the Borrower
and such Subsidiary comply with the applicable provisions of Section
5.10 with respect to such newly formed Subsidiary;
(h) other Investments made after the Effective Date in an
aggregate amount at any time outstanding not to exceed the greater of
(x) $420,000,000 and (y) 3% of Consolidated Total Assets;
(i) loans or advances (which shall not be deemed to include
accounts receivable) made to customers in an aggregate amount
outstanding not at any time exceeding $50,000,000;
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(j) receivables owing to members of the Allied Group that
arise in the ordinary course of business and are payable or
dischargeable in accordance with customary trade terms;
(k) Permitted Acquisitions and other transactions permitted by
6.06;
(l) investments in or acquisitions of landfills, collection
centers or other producing assets located in the United States pursuant
to contemporaneous exchanges of similar assets with any other Person;
provided that any portion of assets acquired for consideration other
than any such exchange shall be deemed a Capital Expenditure and be
subjected to the limitations of Section 6.15;
(m) any Investment consisting of a Hedging Agreement permitted
by Section 6.07;
(n) any Investment acquired by any of the Loan Parties (A) in
exchange for any other Investment or accounts receivable held by such
Loan Party as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable; (B) as a result of a foreclosure by such Loan Party or
other transfer of title with respect to any secured Investment in
default; or (C) in connection with the acquisition of an Acquired
Business permitted hereunder which was an Investment of such Acquired
Business existing prior to the date of such acquisition and not made in
contemplation thereof;
(o) the Guarantees issued by Allied Waste and/or its
Subsidiaries in respect of the 2001 Senior Notes and any other
Guarantee expressly permitted pursuant to Section 6.01(a)(ii), (vi),
(ix) or (xx);
(p) investments consisting of Sellers' Retained Interests in
Securitizations permitted by Section 6.06;
(q) investments consisting of any non-cash consideration
received in connection with an Asset Sale permitted hereunder; and
(r) investments by the Borrower and Restricted Subsidiaries in
the RMI Subsidiaries consisting of the RMI Intercompany Notes, loans
and advances pursuant to the RMI Funding Operations and the purchase of
existing minority equity interest in the RMI Subsidiaries pursuant to
put and call arrangements existing on the Third Amendment Effective
Date (which put and call arrangements may be extended as may be
determined by the Borrower in connection with settlement negotiations
in respect thereof).
Notwithstanding any other provision of this Agreement but subject to the proviso
below, Allied Waste and the Borrower will not, and will not permit any
Restricted Subsidiary to, (i) effect any acquisition (including any Permitted
Acquisition) of a business concern or purchase or acquire any Equity Interests
of any business concern other than such
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an acquisition or purchase made by (or pursuant to a merger or consolidation of)
the Borrower or a Restricted Subsidiary other than BFI or its Subsidiaries, (ii)
effect any transfer of material assets or properties, or of Equity Interests in
any Restricted Subsidiary, to, or make any material investment (other than
intercompany loans and advances permitted by Section 6.01) in, BFI or its
Restricted Subsidiaries (other than any such transfer or investment made by BFI
or its Restricted Subsidiaries) or (iii) effect any merger or consolidation with
BFI or its Subsidiaries (other than any such merger or consolidation involving
only BFI or its then existing Subsidiaries); provided, however, that any
transaction referred to in clauses (i), (ii) or (iii) above may be effected if
(x) such transaction can reasonably be expected to result in material tax,
operational or corporate governance savings or efficiencies or benefits of the
Allied Group or avoid material tax, operational or corporate governance costs,
inefficiencies or detriments to the Allied Group that would result from
effecting the relevant acquisition, transfer, investment or merger in a manner
otherwise permitted by this paragraph and (y) Allied Waste and the Borrower, in
the exercise of their commercially reasonable efforts, are not able to achieve
comparable tax savings, efficiencies or benefits or substantially avoid such
material tax, operational or corporate governance costs, inefficiencies or
detriments, by restructuring the relevant transaction or otherwise, in a manner
permitted by this paragraph without regard to this proviso.
SECTION 6.06. Mergers, Consolidations, Sales of Assets and
Acquisitions. Neither Allied Waste nor the Borrower will, nor will it cause or
permit any of its Restricted Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or conduct any Asset Sale of (in one transaction or in a series of transactions)
all or any substantial part of Allied Waste's, the Borrower's and the other
Restricted Subsidiaries' assets (whether now owned or hereafter acquired), or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other Person
consisting of a business or operating unit, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Restricted Subsidiary of Allied Waste
(other than an Insurance Subsidiary, BFI or any subsidiary of BFI) may
merge into the Borrower in a transaction in which the Borrower is the
surviving corporation and (ii) any Restricted Subsidiary of Allied
Waste (other than an Insurance Subsidiary) may merge into or
consolidate with any other Restricted Subsidiary of Allied Waste (other
than an Insurance Subsidiary) in a transaction in which the surviving
entity is a wholly owned Restricted Subsidiary of Allied Waste and no
Person other than the Borrower or a wholly owned Subsidiary of Allied
Waste receives any consideration (provided that BFI and its Restricted
Subsidiaries shall not merge into or consolidate with the Borrower or
any Subsidiary other than BFI and its Restricted Subsidiaries). In
connection with one or more Permitted Acquisitions, subject to Section
6.05 in the case of BFI and its subsidiaries, the Borrower or any of
its Restricted Subsidiaries (including BFI and any Restricted
Subsidiary of BFI) may merge with or into another Person and BFI or any
Restricted Subsidiary
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of BFI may also engage in any transaction referred to in clauses (i)
and (ii) above, if (x) such transaction can reasonably be expected to
result in material tax, operational or corporate governance savings,
efficiencies or benefits of the Allied Group or avoid material tax,
operational or corporate governance costs, inefficiencies or detriments
to the Allied Group that would result from effecting the merger of the
Borrower, such Restricted Subsidiary of the Borrower, BFI or such
Restricted Subsidiary of BFI, as the case may be, into the Borrower or
such other Restricted Subsidiary, as the case may be, and (y) Allied
Waste and the Borrower, in the exercise of their commercially
reasonable efforts, are not able to achieve comparable tax, operational
or corporate governance savings, efficiencies or benefits or
substantially avoid such material tax costs, inefficiencies or
detriments by restructuring the relevant transaction or otherwise, in a
manner permitted by this paragraph (a) without regard to this proviso;
(b) any Restricted Subsidiary of Allied Waste (other than the
Borrower) may change the jurisdiction in which it is incorporated or
organized so long as (i) the new jurisdiction of incorporation or
organization of any Domestic Subsidiary is in the United States, (ii)
notice is given to the Administrative Agent pursuant to Section 5.13
and (iii) any Uniform Commercial Code financing statements or
amendments or any other documents reasonably requested by the
Administrative Agent to evidence such change have been filed by the
Administrative Agent within ten (10) days of such change;
(c) the Borrower or any of the Loan Parties (other than (i)
Insurance Subsidiaries and (ii) BFI and its subsidiaries, unless
permitted pursuant to the last paragraph of Section 6.05) may make
Permitted Acquisitions and Investments permitted by Section 6.05;
(d) the Borrower or any of its Restricted Subsidiaries may
conduct Asset Sales; provided that the Net Available Proceeds of each
such Asset Sale shall be applied in the manner set forth in Section
2.11; and provided further that any sale, transfer or other disposition
of assets or stock with a fair market value in excess of 2% of
Consolidated Total Assets and not otherwise prohibited by this Section
6.06 shall not be permitted unless (A) such sale, transfer or other
disposition is for consideration at least 75% of which is cash and (B)
such consideration is at least equal to the fair market value of the
assets, transferred or disposed of (as determined in good faith by the
Board of Directors or officers of the Borrower);
(e) the Borrower and its Restricted Subsidiaries may effect
asset swaps permitted by Section 6.05(l);
(f) Allied Waste may make Asset Sales to any of the Loan
Parties and any Loan Party may make Assets Sales to Allied Waste or to
another Loan Party; and
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(g) the Borrower or any Restricted Subsidiary may sell
Securitization Assets to one or more Securitization Vehicles in
Securitizations; provided that (i) each such Securitization is effected
on market terms, (ii) the aggregate amount of Third Party Securities in
respect of all such Securitizations does not exceed $400,000,000 at any
time outstanding, (iii) the aggregate amount of the Sellers' Retained
Interests in such Securitizations does not exceed an amount at any time
outstanding that is customary for similar transactions, (iv) the
proceeds to each such Securitization Vehicle from the issuance of Third
Party Securities are applied substantially simultaneously with receipt
thereof to the purchase from the Borrower or Restricted Subsidiaries of
Securitization Assets and an amount equal to 100% of the Net Available
Proceeds from each such Securitization (other than the March 2003
Securitization) is applied to the mandatory repayment of Term Loans in
accordance with Section 2.11(c), except to the extent applied to
Optional Repurchases to the extent permitted by Section 2.11(c) and (v)
the Equity Interests and Sellers' Retained Interests in respect of each
such Securitization Vehicle shall be pledged to the Shared Collateral
Secured Parties pursuant to the Shared Collateral Pledge Agreement or
Shared Collateral Security Agreement or the Secured Parties pursuant to
the Non-Shared Collateral Pledge Agreement or Non-Shared Collateral
Security Agreement, as the case may be (it being understood that
Section 9.14 shall apply to the Collateral Agent and any Secured
Parties benefiting from any such pledge).
SECTION 6.07. Hedging Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.17, (b)
Hedging Agreements with respect to AWNA Senior Notes, 2001 Senior Notes and BFI
Indenture Debt, (c) Hedging Agreements with respect to any Refinancing
Indebtedness, Qualifying Senior Secured Indebtedness or Permitted Subordinated
Debt, (d) Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which Allied Waste or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities, (e) Hedging
Agreements existing on the Restatement Effective Date and (f) Hedging Agreements
in connection with any Securitizations permitted by Sections 6.05 and 6.06.
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness. (a) Allied Waste will not, nor will it permit any of its
Restricted Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its capital
stock;
(ii) Restricted Subsidiaries of the Borrower may declare
and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not
exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to
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and in accordance with the stock option plans or other benefit plans or in
connection with incentive or compensation arrangements for current or former
management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare
and make dividend payments to Allied Waste solely to the extent necessary for
Allied Waste to pay for taxes and to pay administrative expenses to conduct its
business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect
of the Sponsor Preferred Stock payable solely in additional shares of Sponsor
Preferred Stock (or other capital stock, as provided therein) and at any time
after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash
dividends to Allied Waste in an aggregate cumulative amount of not more than
$75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor
Preferred Stock (including on shares theretofore paid as dividends thereon in
accordance with this clause (v)) and Allied Waste may use such dividends to pay
cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor
Preferred Stock; provided in each case that no Default or Event of Default has
occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay
cash dividends to Allied Waste in order to permit Allied Waste to pay cash
dividends on the Sponsor Preferred Stock (including on shares theretofore paid
as dividends thereon in accordance with clause (v) hereof) and Allied Waste may
use such dividends to pay cash dividends on the Sponsor Preferred Stock;
provided, however, that all cash dividend payments in accordance with this
clause (vi) are subject to the satisfaction of the following additional
conditions on the date of such dividend payment and after giving effect thereto:
(x) no Default or Event of Default shall have occurred and be
continuing;
(y) the Leverage Ratio as of the last day of the previous
fiscal quarter is less than or equal to 4.00 to 1.00; and
(z) the Interest Coverage Ratio for the Rolling Period most
recently ended prior to the date of such dividend payment, taking into
account that such dividend is payable in cash, is not less than that
required by Section 6.13;
(vii) Allied Waste and its Restricted Subsidiaries may make
Restricted Payments to the extent required by the terms of its joint venture or
similar agreements in effect on the Restatement Effective Date and listed on
Schedule 6.08; provided that immediately prior, and after giving effect to, such
Restricted Payment, no Default or Event of Default shall have occurred and be
continuing;
(viii) the Borrower or any Restricted Subsidiary may pay
cash dividends to Allied Waste in an amount sufficient to permit Allied Waste to
pay cash dividends in respect of its capital stock and Allied Waste may pay cash
dividends in respect of its capital stock; provided
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that all cash dividend payments in accordance with this clause (viii) are
subject to the satisfaction of the following additional conditions on the date
of such dividend payment and after giving effect thereto:
(w) no Default or Event of Default shall have occurred and be
continuing;
(x) the Leverage Ratio as of the last day of the previous
fiscal quarter is less than 4.00 to 1.00;
(y) the Interest Coverage Ratio for the Rolling Period most
recently ended prior to the date of such dividend payment, taking into
account that such dividend payment is payable in cash, is not less than
that required by Section 6.13; and
(z) the aggregate amount of Restricted Payments made pursuant
to this clause (viii) in any Excess Cash Flow Calculation Period does
not exceed an amount equal to the Borrower's Portion of Excess Cash
Flow for the immediately preceding Excess Cash Flow Calculation Period
less the aggregate amount of all other Designated Excess Cash
Expenditures made in such current Excess Cash Flow Calculation Period;
(ix) Allied Waste may repurchase its outstanding common
stock; provided, however, that all Restricted Payments in accordance with this
clause (ix) are subject to the satisfaction of the following additional
conditions on the date of such Restricted Payment and after giving effect
thereto:
(x) no Default or Event of Default shall have occurred and be
continuing;
(y) the Leverage Ratio as of the last day of the previous
fiscal quarter is less than or equal to 3.25 to 1.00; and
(z) the aggregate amount of Restricted Payments made pursuant
to this clause (ix) in any Excess Cash Flow Calculation Period does not
exceed an amount equal to the Borrower's Portion of Excess Cash Flow
for the immediately preceding Excess Cash Flow Calculation Period less
the aggregate amount of all other Designated Excess Cash Expenditures
made in such current Excess Cash Flow Calculation Period;
(x) Allied Waste may redeem Permitted Cure Securities, if any,
in accordance with the terms thereof with the proceeds of an issuance of its
common stock or preferred stock; provided that (1) no Event of Default shall
have occurred and be continuing and (2) such stock so issued is (x) Non-Cash Pay
and (y) subordinate to the Obligations at least to the same extent that such
Permitted Cure Securities are subordinate to the Obligations;
(xi) Allied Waste may declare and pay dividends in respect of
the Mandatory Convertible Securities;
(xii) the Borrower or any Restricted Subsidiary may pay cash
dividends to Allied Waste in an amount sufficient to permit Allied
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Waste to pay cash dividends on the Mandatory Convertible Securities (including
shares theretofore paid as dividends thereon in accordance with clause (xi)
hereof); provided, however, that no Default or Event of Default shall have
occurred and be continuing upon declaration of such cash dividend, after giving
effect thereto; and
(xiii) Allied Waste may repurchase or redeem any or all shares
of Sponsor Preferred Stock for consideration consisting solely of shares of
common stock of Allied Waste.
(b) Allied Waste will not, nor will it permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction (other than
restrictions on payments, repayments or dividends made or paid by the Borrower
to Allied Waste) on the ability of any such Subsidiary to (1) pay any dividends
or make any other distributions on its capital stock or any other ownership
interest or (2) make or repay any loans or advances to the Borrower or the
parent of such Subsidiary, except for:
(w) restrictions imposed by law or by any Loan Document;
(x) existing restrictions under the Indebtedness set forth in
Schedule 6.01;
(y) existing restrictions under the AWNA Senior Note
Indenture, any 2001 Indenture outstanding on the Restatement Effective
Date and the 10% Note Documents and restrictions in other Indebtedness
permitted by Section 6.01(a) issued after the Restatement Effective
Date that are no more restrictive than such existing restrictions; and
(z) restrictions pursuant to (1) customary provisions in
agreements entered into by any member of the Allied Group in connection
with a joint venture permitted hereunder; provided that such
restrictions only relate to such joint venture, the Equity Interests in
such joint venture and the assets owned or otherwise held by such joint
venture and (2) any agreement entered into by any member of the Allied
Group in connection with an Asset Sale for the period beginning with
the date such agreement is entered into through the date that such
Asset Sale is consummated; provided that (A) such restrictions only
restrict dividends to be paid by any Subsidiary of Allied Waste in
respect of the capital stock or assets that are being sold pursuant to
such Asset Sale and (B) such Asset Sale is permitted hereunder.
SECTION 6.09. Transactions with Affiliates. (a) Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates (other than as provided in (b) below), except:
(i) subject to the provisions of Section 6.08, between or
among Allied Waste, the Borrower or any Subsidiary Loan Parties; and
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(ii) that any member of the Allied Group may engage in any of
the foregoing transactions, including the payment of financial
advisory, financing, underwriting or placement fees or other investment
banking fees, in the ordinary course of business at prices and on terms
and conditions not less favorable to the members of the Allied Group
than could be obtained on an arm's-length basis from unrelated third
parties.
(b) Allied Waste will not, nor will it cause or permit any of
its Subsidiaries to, make any payment of or on account of monitoring or
management fees payable to the Sponsors or their Affiliates unless on the date
of such payment no Default or Event of Default has occurred and is continuing or
would result therefrom.
(c) The foregoing paragraph (a) shall not prohibit, to the
extent otherwise permitted under this Agreement, (i) any issuance of securities
of Allied Waste, or other payments, awards or grants in cash, securities of
Allied Waste or other property pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors of Allied Waste, (ii) loans or advances to employees of Allied Waste,
the Borrower or any Subsidiary in accordance with Sections 6.05(d) and (e),
(iii) the payment of fees and indemnitees to directors, officers and employees
of Allied Waste, the Borrower and the Subsidiaries in the ordinary course of
business, (iv) transactions pursuant to Hedging Agreements permitted by Section
6.07, (v) any employment agreements entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business, (vi) any purchase by
the Sponsors of capital stock of Allied Waste or any purchase by Allied Waste of
capital stock or other equity securities of any Restricted Subsidiaries or any
contribution by Allied Waste to the equity capital of the Borrower, (vii)
Securitizations permitted by Sections 6.05 and 6.06, (viii) any Restricted
Payment permitted by Section 6.08 or (ix) (A) RMI Funding Operations, Assumed
RMI Liabilities and RMI Intercompany Notes, (B) management agreements pursuant
to which RMI Subsidiaries manage liabilities of the Borrower or other Restricted
Subsidiaries, corporate services arrangements for the benefit of the RMI
Subsidiaries and other transactions reasonably related or incidental to the
foregoing transactions referred to in this clause (ix) in each case in the
ordinary course and in a manner consistent with past practices and (C)
management agreements entered into after the Third Amendment Effective Date
pursuant to which RMI Subsidiaries manage liabilities of the Borrower or other
Restricted Subsidiaries on a fee for services basis.
SECTION 6.10. Business of Allied Waste, Borrower and
Subsidiaries. Allied Waste will not, nor will it cause or permit any of its
Restricted Subsidiaries to:
(a) engage at any time, (i) in the case of the Borrower and
each of the Restricted Subsidiaries (other than the Insurance
Subsidiaries), in any business or business activity other than the
business currently conducted by them and business activities reasonably
related or incidental thereto and (ii) in the case of Allied Waste, in
any business or business activity other than the direct ownership of
all the outstanding stock of the Borrower or
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of any Unrestricted Subsidiary and all activities reasonably related or
incidental thereto; or
(b) enter into any general partnership arrangement or become a
general partner of a limited partnership arrangement other than through
a special purpose wholly owned Subsidiary; provided that any
Investments associated with such general partnership shall be permitted
hereunder.
In addition, none of the Loan Parties will permit the
Insurance Subsidiaries to engage to any substantial extent in any line or lines
of business or business activity other than the business currently conducted by
such Insurance Subsidiaries and business activities reasonably related or
incidental thereto.
SECTION 6.11. Other Indebtedness and Agreements. The Borrower
will not, nor will it cause or permit any of the Restricted Subsidiaries to:
(a) make any distribution, whether in cash, property,
securities or a combination thereof, other than scheduled payments and
mandatory prepayments of principal and interest as and when due (to the
extent not prohibited by applicable subordination provisions), in
respect of, or pay, or offer or commit to pay, or directly or
indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, (i) any
Junior Indebtedness or (ii) any other Indebtedness for borrowed money
(except for the Obligations and intercompany Indebtedness permitted
hereby) other than, without duplication, (s) Optional Repurchases of
the Borrower's 7.88% Notes with the proceeds of the Revolving Loans,
(t) Optional Repurchases of Refinanceable Indebtedness with Net
Available Proceeds received from the issuance and sale of common stock
of Allied Waste after March 30, 2004, provided that such Optional
Repurchases are effected not later than 150 days after receipt of such
Net Available Proceeds, (u) the prepayment of not more than
$225,000,000 in principal amount of Targeted Senior Secured
Indebtedness maturing in January 2004, (v) Optional Repurchases of
Refinanceable Indebtedness with Net Available Proceeds of Non-Core
Asset Sales in excess of the initial $225,000,000 of such Net Available
Proceeds(w) prepayments of Indebtedness permitted or required pursuant
to Section 2.11(c) and Section 6.01(a) or pursuant to Section 2.11(f),
(x) payments of Indebtedness incurred pursuant to Section
6.01(a)(xxii), (y) prepayments of Indebtedness incurred under Section
6.01(a)(xvii) or (xx) with the proceeds of other Indebtedness incurred
under Section 6.01(a)(xvii) or (xx), respectively, and (z) prepayments
of Refinanceable Indebtedness in a cumulative amount per Excess Cash
Flow Calculation Period not greater than an amount equal to the
Borrower's Portion of Excess Cash Flow for the immediately preceding
Excess Cash Flow Calculation Period less the amount of other Designated
Excess Cash Expenditures made in such current Excess Cash Flow
Calculation Period, commencing with the Excess Cash Flow Calculation
Period ended March 31, 2004; provided however that, in the event that
the Borrower issues Refinancing Indebtedness
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with respect to the Indebtedness prepaid, repurchased or redeemed
pursuant to this clause (z) no later than 30 days after making any such
prepayment, repurchase or redemption, then the Borrower's Portion of
Excess Cash Flow available in such Excess Cash Flow Calculation Period
shall be increased in an amount equal to the Net Available Proceeds
received in connection with such issuance, provided that such amount of
the Borrower's Portion of Excess Cash Flow shall not be increased by an
amount greater than the amount expended in connection with the
applicable prepayment, repurchase or redemption by the Borrower;
provided, further, however, that for purposes of determining the amount
of Indebtedness that may be prepaid, repurchased or redeemed pursuant
to this paragraph (a) in circumstances where the determination of such
amount is based on the Net Available Proceeds of a separate issuance of
Indebtedness, the Net Available Proceeds of such separate issuance of
Indebtedness shall be deemed to equal the Net Available Proceeds
thereof without giving effect to any deduction of fees or expenses of
such separate issuance of Indebtedness that are paid with the proceeds
of Revolving Loans or Swingline Loans in accordance with Section 5.16;
or
(b) make any payment or prepayment of any Indebtedness that
would violate the terms of this Agreement or of such Indebtedness, any
agreement or document evidencing, related to or securing the payment or
performance of such Indebtedness or any subordination agreement or
provision applicable to such Indebtedness.
SECTION 6.12. Amendment of Material Documents. Without the
consent of the Required Lenders, neither Allied Waste nor the Borrower will, nor
will they permit any Restricted Subsidiary to, permit any waiver, supplement,
modification, amendment, termination or release of (a) any Material Agreement
(other than any Material Agreement in respect of any Securitization), any
Subordinated Debt Document, the AWNA Senior Debt Indenture, the 2001 Indenture,
the BFI Indenture or any other indenture, instrument or agreement pursuant to
which any Indebtedness or Preferred Stock of any member of the Allied Group is
outstanding in an aggregate outstanding principal or face amount in excess of
$50,000,000 or (b) its certificate of incorporation, by-laws or other
organizational documents in any such case, in a manner which could, individually
or in the aggregate, reasonably be expected to (i) materially impair the Loan
Parties' ability to perform their obligations hereunder or under the Loan
Documents or (ii) be adverse to the Lenders in any material respect.
SECTION 6.13. Interest Coverage Ratio. Allied Waste and the
Borrower will not permit the Interest Coverage Ratio as of the last day of any
fiscal quarter ending during any period set forth below to be less than the
ratio set forth below opposite such period:
Period Minimum Ratio
------ -------------
March 31, 2003 through September 30, 2003 1.90 to 1.00
October 1, 2003 through June 30, 2004 1.85 to 1.00
July 1, 2004 through September 30, 2004 1.90 to 1.00
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October 1, 2004 through March 31, 2005 1.95 to 1.00
April 1, 2005 through September 30, 2005 2.00 to 1.00
October 1, 2005 through December 31, 2005 2.10 to 1.00
January 1, 2006 through June 30, 2006 2.15 to 1.00
July 1, 2006 through September 30, 2006 2.20 to 1.00
October 1, 2006 through December 31, 2006 2.30 to 1.00
January 1, 2007 through March 31, 2007 2.40 to 1.00
April 1, 2007 through June 30, 2007 2.45 to 1.00
July 1, 2007 through March 31, 2008 2.50 to 1.00
April 1, 2008 through June 30, 2008 2.60 to 1.00
July 1, 2008 through September 30, 2008 2.70 to 1.00
October 1, 2008 and thereafter 2.75 to 1.00
SECTION 6.14. Leverage Ratio. Allied Waste and the Borrower
will not permit the Leverage Ratio as of the last day of any fiscal quarter
ending during any period set forth below to be more than the ratio set forth
opposite such period:
Period Maximum Ratio
------ -------------
March 31, 2003 through June 30, 2005 5.75 to 1.00
July 1, 2005 through December 31, 2005 5.50 to 1.00
January 1, 2006 through June 30, 2006 5.25 to 1.00
July 1, 2006 through September 30, 2006 5.00 to 1.00
October 1, 2006 through December 31, 2006 4.75 to 1.00
January 1, 2007 through December 31, 2007 4.50 to 1.00
January 1, 2008 through June 30, 2008 4.25 to 1.00
July 1, 2008 and thereafter 4.00 to 1.00
SECTION 6.15. Capital Expenditures. (a) Subject to paragraph
(b) below, Allied Waste and the Borrower will not, and will not permit any of
the Restricted Subsidiaries to, make any Capital Expenditures that would cause
the aggregate amount of such Capital Expenditures made by Allied Waste, the
Borrower and the Restricted Subsidiaries in any fiscal year to exceed
$750,000,000.
(b) Notwithstanding the foregoing, the Borrower may in any
fiscal year, upon written notice to the Administrative Agent, increase the
amount of Capital Expenditures permitted to be made during such fiscal year
pursuant to this Section 6.15 by an amount equal to the total unused amount of
Capital Expenditures permitted to be made pursuant to this Section 6.15 for the
immediately preceding fiscal year (but not including the amount of any unused
Capital Expenditures permitted to be made during such immediately preceding
fiscal year pursuant to this Section 6.15 that were carried forward to such
preceding fiscal year pursuant to this paragraph (b)).
SECTION 6.16. Designation of Unrestricted Subsidiaries. The
Borrower will not designate any Subsidiary (other than a newly created
Subsidiary in which no investment has previously been made) as an "Unrestricted
Subsidiary" under this agreement (a "Designation") unless:
(i) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
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(ii) the Borrower has delivered to the Agent (x) written notice of
such Designation and (y) a certificate, dated the effective
date of such Designation, of an Executive Officer stating that
no Event of Default has occurred and is continuing and setting
forth reasonably detailed calculations demonstrating pro forma
compliance with Section 6.13 and Section 6.14 in accordance
with paragraph (i) above; and
(iii) such Subsidiary has not Guaranteed (after giving effect to
such Designation) any Indebtedness of Allied Waste or any
other Restricted Subsidiary.
Neither the Borrower nor any Restricted Subsidiary shall at any time (x) provide
a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be directly
or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z)
be directly or indirectly liable for any other Indebtedness which provides that
the holder thereof may (upon notice, lapse of time or both) declare a default
thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary, except in the case of clause (x) or
(y) to the extent permitted under Section 6.01 and Section 6.05 hereof. Each
Designation shall be irrevocable, and no Unrestricted Subsidiary may become a
Restricted Subsidiary, be merged with or into the Company or a Restricted
Subsidiary or liquidate into or transfer substantially all its assets to the
Company or a Restricted Subsidiary; provided, however, that any RMI Subsidiary
may be redesignated as a Restricted Subsidiary if such RMI Subsidiary is a
wholly owned subsidiary of the Borrower and the Borrower delivers to the Agent
written notice of such redesignation and a certificate of a Financial Officer
stating that no Event of Default has occurred and is continuing after giving
effect to such redesignation.
SECTION 6.17. Commingling of Accounts. The Borrower will not,
nor will it cause or permit any Restricted Subsidiary to, commingle amounts
relating to Securitization Assets sold pursuant to a Securitization with cash or
any other amounts of the Borrower and its Subsidiaries other than the temporary
commingling of collections on and proceeds of any accounts receivable or related
assets of the Borrower and its Subsidiaries, in each case as may be necessary to
identify and sort such collections and proceeds.
ARTICLE VII
Events of Default; Right To Cure
SECTION 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(i) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
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(ii) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (i) of this paragraph (a) of this Section 7.01) payable under
this Agreement or any other Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of three Business Days;
(iii) any representation or warranty made or deemed made by or
on behalf of Allied Waste, the Borrower or any Restricted Subsidiary in
any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document
or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made or
deemed made;
(iv) Allied Waste or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.01
(with respect to the existence of Allied Waste or the Borrower), 5.05,
5.10 or 5.18 or in Article VI;
(v) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (i), (ii) or (iv) of this paragraph (a)
of this Section 7.01), and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent to
the Borrower (which notice will be given promptly at the request of any
Lender);
(vi) Allied Waste, the Borrower or any Subsidiary shall fail
to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable beyond the applicable period of grace, if
any, provided in the instrument or agreement under which such Material
Indebtedness was created;
(vii) any event or condition occurs (A) that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
(B) that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (vii) shall not apply to
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets of the Borrower or any Restricted
Subsidiary;
(viii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (A) liquidation,
reorganization or other relief in respect of Allied Waste, the Borrower
or any Material Loan Party or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (B) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official
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for Allied Waste, the Borrower or any Material Loan Party or for a
substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 90 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(ix) Allied Waste, the Borrower or any Material Loan Party
shall (A) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (B) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or
petition described in clause (viii) of this Article, (C) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Allied Waste, the
Borrower or any Material Loan Party or for a substantial part of its
assets, (D) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (E) make a general
assignment for the benefit of creditors or (F) take any action for the
purpose of effecting any of the foregoing;
(x) Allied Waste, the Borrower or any Material Loan Party
shall become unable, admit in writing its inability or fail generally
to pay its debts as they become due;
(xi) one or more judgments for the payment of money in an
aggregate amount in excess of $50,000,000 (subtracting therefrom any
amount covered by insurance as to which the insurer has acknowledged in
writing its obligation to cover) shall be rendered against Allied
Waste, the Borrower, any Material Loan Party or any combination thereof
and the same shall remain undischarged for a period of 60 consecutive
days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy
upon any assets of Allied Waste, the Borrower or any Material Loan
Party to enforce any such judgment;
(xii) an ERISA Event shall have occurred that, in the
reasonable opinion of the Required Lenders, when taken together with
all other ERISA Events that have occurred and are then outstanding,
could reasonably be expected to result in liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding $50,000,000 for all
periods;
(xiii) (A) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any material portion of the
Collateral, with the priority required by the applicable Security
Document, except (I) as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan
Documents or (II) as a result of the Collateral Agent's failure to
maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Security Documents or (B)
the Obligations of the Borrower, or the obligations of Allied Waste
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or any Subsidiary pursuant to a Guarantee Agreement shall cease to
constitute senior indebtedness under the subordination provisions of
any document or instrument evidencing any subordinated Indebtedness
existing on the Restatement Effective Date or any Permitted
Subordinated Debt or such subordination provisions shall be invalidated
or otherwise cease to be legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their terms;
(xiv) a Change in Control shall occur;
(xv) an Environmental Claim shall have been asserted against
any member of the Allied Group or any of their respective Affiliates
that is reasonably likely to be determined adversely to any member of
the Allied Group, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (but
after deducting any portion thereof that is reasonably expected to be
paid by other creditworthy Persons jointly and severally liable
therefor); or
(xvi) (A)(1) any Subsidiary that is the issuer of any Third
Party Securities shall fail to pay any principal or any reimbursement
obligation with respect thereto when and as the same shall become due
and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise, (2) any Subsidiary that is the issuer
of any Third Party Securities shall fail to pay any interest or any fee
or other amount with respect thereto, when and as the same shall become
due and payable, and such failure shall continue unremedied for a
period of three Business Days or (3) any event or condition occurs that
results in any Third Party Securities becoming due prior to their
scheduled maturity date or (B) any event described in clause (viii),
(ix) or (x) shall occur with respect to any Subsidiary that is the
issuer of any Third Party Securities;
then, and in every such event (other than an event with respect to the Borrower
described in clause (viii) or (ix) of this paragraph (a) of this Section 7.01),
and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in the case of any event
with respect to Allied Waste or the Borrower described in clause (viii) or (ix)
of this paragraph (a) of this Section 7.01, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall automatically become due and payable, without
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presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
SECTION 7.02. Borrower's Right to Cure. (a) Leverage Ratio.
Notwithstanding anything to the contrary contained in Section 7.01, in the event
that Allied Waste and the Borrower fail to comply with the requirements of
Section 6.14 in respect of or as determined with reference to any Rolling
Period, until the expiration of the 10th Business Day subsequent to the date the
certificate calculating the Leverage Ratio is required to be delivered pursuant
to Section 5.04(c), Allied Waste shall have the right to issue Permitted Cure
Securities for cash or otherwise receive cash contributions to the capital of
Allied Waste, and, in each case, to apply such cash in accordance with Section
2.11(c) (collectively, the "Cure Right"), and upon such application by the
Borrower of such cash (the "Cure Amount") pursuant to the exercise by Allied
Waste of such Cure Right the Leverage Ratio shall be recalculated giving effect
to the following pro forma adjustments;
(i) Total Indebtedness shall be decreased in respect of the
last fiscal quarter of such Rolling Period, solely for the purpose of
measuring the Leverage Ratio and not for any other purpose under this
Agreement, by an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculation,
Allied Waste and Borrower shall then be in compliance with the
requirements of Section 6.14, Allied Waste and the Borrower shall be
deemed to have satisfied the requirements of Section 6.14 as of the
relevant date of determination with the same effect as though there had
been no failure to comply therewith at such date, and the applicable
breach or default of Section 6.14 which had occurred shall be deemed
cured for all purposes of the Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding
anything herein to the contrary, (a) in no event shall Allied Waste be entitled
to exercise the Cure Right in more than three consecutive fiscal quarters, (b)
in any eight fiscal quarter period, there must be a period of at least four
consecutive fiscal quarters during which Allied Waste has not exercised its Cure
Right and (c) each Cure Amount shall be as close as is commercially feasible to
the amount required to cure the applicable failure to comply with Section 6.14.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and each Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. For
purposes of this Article VIII, all references to the Administrative Agent are
deemed to include the Collateral Agent and the Collateral Trustee.
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The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Allied Waste, the Borrower or any
Subsidiary or any Affiliate of any of the foregoing as if it were not the
Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02) and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Allied Waste, the Borrower or any of the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by Allied Waste, the Borrower or a Lender, as applicable,
and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
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action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Allied Waste or the Borrower, to it at ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇--▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Office of
the Treasurer, Attention of Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇, Esq. (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to JPMorgan Chase Bank,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, Loan
and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
(d) if to the Swingline Lender, to it at JPMorgan Chase Bank,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(e) if to any other Lender or Issuing Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any
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other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, any Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan, the
funding of a Tranche A Credit-Linked Deposit or issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Allied Waste, the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender directly affected thereby;
(iii) extend the final maturity of any Loan or LC Disbursement
or extend the date on which the Tranche A Credit-Linked Deposits are required to
be returned in full to the Tranche A Lenders, without the prior written consent
of each Lender directly affected thereby;
(iv) extend the scheduled amortization (other than final
maturity) of any Loan or the scheduled date for payment of interest and fees
without the prior written consent of Lenders holding Loans representing at least
80% of the aggregate principal amount of the then outstanding Loans directly
affected thereby;
(v) accelerate any scheduled amortization (including final
maturity) of any Loan without the prior written consent of Lenders holding Loans
representing at least 80% of the aggregate principal amount of the then
outstanding Loans directly affected thereby;
(vi) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments among Lenders required thereby, without
the written consent of each Lender;
(vii) change any of the provisions of this Section that affect
the Lenders or the definition of "Required Lenders" or any other
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provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class or Tranche A Lenders) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be);
(viii) release Allied Waste or any Material Loan Party from
its Guarantee under the applicable Guarantee Agreement (except as expressly
provided in such Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender; or
(ix) release all or substantially all of the Collateral from
the Liens of the Security Documents, without the written consent of each Lender;
provided further that:
(A) no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Issuing Banks or
the Swingline Lenders without the prior written consent of the
Administrative Agent, the Issuing Banks or the Swingline Lenders, as
the case may be; and
(B) no such agreement shall effect any waiver, amendment or
modification that by its terms adversely affects the rights in respect
of payments or collateral of Lenders participating in any Class of
Loans or Tranche A Letters of Credit differently from those of Lenders
participating in other Classes of Loans or Tranche A Letters of Credit,
without the consent of a majority in interest of the Lenders
participating in the adversely affected Class, or change the relative
rights in respect of payments or collateral of the Lenders
participating in different Classes of Loans or Tranche A Letters of
Credit without the consent of a majority in interest of Lenders
participating in each affected Class of Loans or Tranche A Letters of
Credit;
and provided further, that the Administrative Agent, on the one hand, and, in
the case of this Agreement, Allied Waste and the Borrower or, in the case of any
other Loan Document, the Loan Parties thereto, on the other hand, may, without
the consent of any Lender amend or modify this Agreement or any other Loan
Document, as the case may be:
(A) to cure any typographical error, so long as such amendment
or modification does not adversely affect the rights of any Lender, any
Issuing Bank or the Administrative Agent;
(B) to effect the assumption by a successor Person of all
obligations of the Borrower or any other Loan Party under this
Agreement and the other Loan Documents in connection with any
transaction complying with Section 6.06(a);
(C) to correct and amplify the description of any property
subject or intended to be subject to the Lien of the applicable
Security Document; and
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(D) to add property to the Collateral as permitted or required
by the applicable Security Document.
Notwithstanding the foregoing, (i) each of the Incremental Facility Amendment,
the Funded LC Facility Amendment and the Refinancing Facility Amendment shall
become effective in the manner set forth in Sections 2.21 and 2.22,
respectively, and (ii) each of the Administrative Agent, the Collateral Agent
and the Collateral Trustee, as applicable, shall be permitted to amend (and, at
the request of the Borrower, shall so amend) the Shared Collateral Security
Agreement or the Shared Collateral Pledge Agreement in a manner reasonably
satisfactory to the Administrative Agent, the Collateral Agent or the Collateral
Trustee, as the case may be, without the consent of any other Lender in order to
add the holders of (and the agents with respect to) any Refinancing Indebtedness
issued to refinance Indebtedness secured on the Restatement Effective Date by
the Shared Collateral or Qualifying Senior Secured Indebtedness as secured
parties thereunder.
Except as otherwise provided herein or in the Security
Documents, the Administrative Agent shall not consent to terminate any
Guarantee, release any collateral or terminate any Lien under any Security
Document unless such release or termination shall be consented to in writing by
the Required Lenders; provided that: (i) the consent of all Lenders shall be
required to release all or substantially all of the Collateral or release all or
substantially all guarantors under the Guarantee Agreements from the Guarantees,
except upon the termination of all Liens and all Guarantees created by the
Security Documents in accordance with the terms thereof; (ii) no such consent
shall be required to release any Lien covering property subject to an Asset Sale
permitted hereunder and, in the case of an Asset Sale involving the sale of a
Subsidiary Loan Party permitted hereunder, the Guarantee of such Subsidiary Loan
Party, and, upon such a permitted Asset Sale, such property and/or such
Subsidiary Loan Party shall be transferred free and clear of the Lien of the
Security Documents and/or Guarantee, if applicable, without any action on the
part of any party (and each of the Administrative Agent, the Collateral Agent
and the Collateral Trustee, as applicable, is hereby authorized to execute such
releases and other documents, and to take such other action, as the Borrower may
reasonably request to give effect thereto); and (iii) no such consent shall be
required to release any Guarantee of any Restricted Subsidiary in connection
with such Restricted Subsidiary's conversion into an Unrestricted Subsidiary
pursuant to, and in accordance with, Section 6.16 (and each of the
Administrative Agent, the Collateral Agent and the Collateral Trustee, as
applicable, is hereby authorized to execute such releases and other documents,
and to take such other action, as the Borrower may reasonably request in order
to give effect to such release).
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates and the other Initial Lenders, including
but not limited to the reasonable expenses incurred in connection with due
diligence and the reasonable fees, charges and disbursements of a single New
York counsel for the Administrative Agent and of a single local counsel for the
Administrative Agent in each applicable jurisdiction, in connection
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with the syndication of the credit facilities provided for herein, the
preparation and administration (to the extent such administration requires the
services of an outside counsel or consultant) of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of a single transactional counsel and a single special
counsel for the Administrative Agent, the Issuing Banks and the Lenders
(collectively), in connection with the enforcement or protection of its rights
in connection with the Loan Documents, including its rights under this Section,
or in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, any
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
entitled to reimbursement pursuant to Section 9.03(a) for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any Property or
Former Property (as defined in Section 3.16 hereof), or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, any Issuing Bank, the
Collateral Agent (with respect to its activities for the benefit of the Lenders)
or any Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, and each Lender agrees to
pay to such Issuing Bank, the Collateral Agent or any Swingline Lender, as the
case may be, such
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Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, such Issuing Bank or any Swingline Lender in
its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving Exposures,
Tranche A LC Exposures, outstanding Term Loans and unused Commitments and
unfunded Tranche A Credit-Linked Deposits at the time.
(d) To the extent permitted by applicable law, neither Allied
Waste nor the Borrower shall assert, and each hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than ten days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) Except as expressly
set forth in Section 9.14(a), the provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), except that, (i) other than in
connection with a merger or consolidation permitted by Section 6.06, the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Banks and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans or Tranche A Credit-Linked Deposits at the time
owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required (1) for an assignment of Term Loans or Tranche A Credit-Linked
Deposits to a Lender, an Affiliate of a Lender or an
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Approved Fund or (2) if an Event of Default under clause (i), (ii), (viii) or
(ix) of Section 7.01 has occurred and is continuing;
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of Term Loans or
Tranche A Credit-Linked Deposits to a Lender, an Affiliate of a Lender or an
Approved Fund; and
(C) with respect to any assignment of Revolving Commitments or
Revolving Loans, each Principal Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund of any Lender, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 or, if
smaller, the entire remaining amount of the assigning Lender's Commitment and
outstanding Loans or Tranche A Credit-Linked Deposits unless each of the
Borrower and the Administrative Agent shall otherwise consent; provided (1) that
no such consent of the Borrower shall be required if an Event of Default under
clause (i), (ii), (viii) or (ix) of Section 7.01 has occurred and is continuing
and (2) in the event of concurrent assignments to two or more assignees that are
Affiliates of one another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, all such concurrent
assignments shall be aggregated in determining compliance with this subsection;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations under
this Agreement; provided that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments, Loans or Tranche A
Credit-Linked Deposits;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; provided that in the event of
concurrent assignments to two or more assignees that are Affiliates of one
another, or to two or more Approved Funds managed by the same investment advisor
or by affiliated investment advisors, only one such fee shall be payable;
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; and
(E) in the case of an assignment by a Lender to a CLO managed
by such Lender or by an Affiliate of such Lender, unless such assignment (or an
assignment to a CLO managed by the same manager or an Affiliate of such manager)
shall have been approved by the Borrower (the Borrower hereby agreeing that such
approval, if requested, will not be unreasonably withheld or delayed), the
assigning Lender shall
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retain the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, except that the Assignment and Acceptance between
such Lender and such CLO may provide that such Lender will not, without the
consent of such CLO, agree to any amendment, modification or waiver described in
the first proviso to Section 9.02(b) that affects such CLO.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section. Without the consent of the Borrower (which
consent shall not be unreasonably withheld) and the Administrative Agent, the
Tranche A Credit-Linked Deposit of any Tranche A Lender shall not be released in
connection with any assignment by such Tranche A Lender, but shall instead be
purchased by the relevant assignee and continue to be held for application (to
the extent not already applied) in accordance with Section 2.05 to satisfy such
assignee's obligations in respect of Tranche A LC Disbursements.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive absent manifest error, and the Borrower, the Administrative
Agent, the Issuing Banks and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, any Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
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(vi) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment and the outstanding balances of its Loans and Tranche A
Credit-Linked Deposits and participations in Tranche A Letters of Credit, in
each case without giving effect to assignments thereof that have not become
effective, are as set forth in such Assignment and Acceptance; (ii) except as
set forth in clause (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any of the foregoing, or the financial
condition of the Loan Parties or the performance or observance by the Loan
Parties of any of their obligations under this Agreement or under any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; (iii) each of the assignee and the assignor represents and warrants
that it is legally authorized to enter into such Assignment and Acceptance; (iv)
such assignee confirms that it has received a copy of this Agreement, together
with copies of any amendments or consents entered into prior to the date of such
Assignment and Acceptance and copies of the most recent financial statements
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Agents, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the Agents to
take such action as agents on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to them by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations that by the terms of this Agreement are required
to be performed by it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, the Issuing Banks or the Swingline Lenders, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans and Tranche A
Credit-Linked Deposits and participations in Tranche A Letters of Credit owing
to it); provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) Allied Waste, the
Borrower, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any
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amendment, modification or waiver of any provision of any Loan Document;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant (and, to the extent the Participant receives such payment, the
applicable Lender shall not be entitled to such amount), unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) and 2.17(f) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section 9.04 shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(e) In the event that Standard & Poor's Ratings Group or
▇▇▇▇▇'▇ Investors Service, Inc. shall downgrade the long-term certificate of
deposit ratings or long-term senior unsecured debt ratings of any Lender (or the
parent company thereof), and the resulting ratings shall be BBB+ or Baa1 or
lower, then each of the Issuing Banks shall have the right, but not the
obligation, at its own expense, upon notice to such Lender, the Borrower and the
Administrative Agent, to replace (or to request Allied Waste and the Borrower,
at the sole expense of such Issuing Bank, to use their reasonable efforts to
replace) such Lender with respect to such Lender's Revolving Commitment with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Commitment to such assignee; provided, however, that (i) no such
assignment shall conflict with any law, rule, regulation or order of any
Governmental Authority and (ii) such assignee shall pay to such Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans and LC Disbursements of
such
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Lender hereunder and all other amounts accrued for such Lender's account or owed
to it hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, in the event that (i) the Borrower has requested an amendment, waiver
or consent of the type set forth in clause (i), (ii), (iii), (vi), (vii), (viii)
or (ix) of the first proviso of the first sentence of Section 9.02(b), (ii) such
amendment, waiver or consent has been approved by the Required Lenders and (iii)
no Event of Default shall have occurred and be continuing under clause (i),
(ii), (viii) or (ix) of Section 7.01, the Borrower may, at any time and from
time to time after the Restatement Effective Date, at its sole expense, require
any Lender that does not approve such proposed amendment, waiver or consent (a
"Non-Consenting Lender") to assign and delegate, at par and without recourse,
all of such Non-Consenting Lender's outstanding Loans, unused Commitments,
unreimbursed Tranche A Credit-Linked Deposits and all other interests, rights
and obligations under this Agreement (or, at the option of the Borrower if the
Non-Consenting Lender's consent is required with respect to only one Class of
Loans (or Commitments) or Tranche A Credit-Linked Deposits, to replace only the
Class of Loans or Commitments of such Non-Consenting Lender that gave rise to
the need of such Non-Consenting Lender's consent) to another Lender (other than
a CLO managed by such Non-Consenting Lender or an Affiliate of such
Non-Consenting Lender) or a financial institution selected by the Borrower and
approved by the Administrative Agent (and if a Revolving Commitment is being
assigned, each Issuing Bank and Swingline Lender), which approval shall not be
unreasonably withheld; provided, however, that, prior to or concurrently with
any such assignment becoming effective hereunder, (i) the Borrower shall have
provided written notice to the Non-Consenting Lender and the Administrative
Agent of its intention to effect an assignment pursuant to this Section 9.04(f),
(ii) such assignee shall have agreed to consent to such proposed amendment,
waiver or consent upon becoming a Lender hereunder, (iii) the Administrative
Agent shall acknowledge that such proposed amendment, waiver or consent shall
become effective upon such assignment and approval of such proposed amendment,
waiver or consent by the assignee, (iv) such assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent a duly executed Administrative
Questionnaire, (v) such assignee and the Non-Consenting Lender shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 (it being understood and agreed that
the Borrower may execute and deliver any such Assignment and Acceptance on
behalf of the Non-Consenting Lender) and (vi) such Non-Consenting Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts. In the
event that the Non-Consenting Lender is a Revolving Lender, the Borrower may not
compel the assignment of such Lender's outstanding Revolving Loans and unused
Revolving Commitments to any Term Lender or Tranche A Lender, unless such Term
Lender or Tranche A Lender is also a Revolving Lender. The terms and provisions
of clauses (iii), (iv) and (v) of Section 9.04(b) shall apply to any assignment
effected pursuant to this Section 9.04(f). A Non-Consenting Lender shall not be
required to make any such assignment and delegation pursuant to this Section
9.04(f) if,
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prior thereto, as a result of a waiver by such Non-Consenting Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the return of
the Tranche A Credit-Linked Deposits, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, the commitment letters and fee letters heretofore
entered into with the Initial Lenders relating to the facilities contemplated by
this Agreement and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof; provided that the Borrower's obligations under such commitment letters
shall terminate and be superseded by the provisions of the Loan Documents on the
Restatement Effective Date to the extent specifically set forth in such
commitment letters. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without
145
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each of Allied Waste and the Borrower hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Allied Waste, the Borrower or their
respective properties in the courts of any jurisdiction.
(c) Each of Allied Waste and the Borrower hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
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SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) to any direct or
indirect contractual counterparty to an Interest Rate Protection Agreement or
such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 9.12), (h) to
the National Association of Insurance Commissioners or any similar organization,
(i) with the consent of the Borrower or (h) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than Allied Waste or the
Borrower or an Affiliate thereof. For the purposes of this Section,
"Information" means all information received from Allied Waste or the Borrower
relating to Allied Waste or the Borrower or its business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by Allied Waste or the
Borrower; provided that, in the case of information received from Allied Waste
or the Borrower after the Restatement Effective Date, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain
147
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary or in any other written or oral
understanding or agreement to which the parties hereto are parties or by which
they are bound, the parties to this Agreement agree that (i) any obligations of
confidentiality contained herein and therein do not apply and have not applied
from the commencement of discussions between the parties to the tax treatment
and tax structure of the transactions contemplated by the Loan Documents and
(ii) each party (and any employee, representative or other agent of such party)
may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by the Loan
Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure, provided that tax treatment and tax structure shall not include the
identity of any existing or future party (or any affiliate of such party) to
this Agreement or any other Loan Document and provided further that each party
recognizes that the privilege each has to maintain, in its sole discretion, the
confidentiality of a communication relating to the transactions contemplated by
the Loan Documents, including a confidential communication with its attorney or
a confidential communication with a federally authorized tax practitioner under
Section 7525 of the Code, is not intended to be affected by the foregoing.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. Securitization Vehicles. (a) Each Lender, the
Administrative Agent, the Collateral Agent and the Collateral Trustee agrees
that, prior to the date that is one year and one day after the payment in full
of all the obligations in respect of any Third Party Securities, (i) the
Collateral Agent and other Secured Parties shall not be entitled, whether before
or after the occurrence of any Event of Default, to (A) institute against, or
join any other Person in instituting against, any Securitization Vehicle any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under the laws of the United States or any State thereof, (B) transfer and
register the capital stock of any Securitization
148
Vehicle or any other instrument evidencing any Seller's Retained Interest in the
name of a Secured Party or any designee or nominee of a Secured Party, (C)
foreclose such security interest regardless of the bankruptcy or insolvency of
any Loan Party, (D) exercise any voting rights granted or appurtenant to such
capital stock of any Securitization Vehicle or any other instrument evidencing
any Seller's Retained Interest or (E) enforce any right that the holder of any
such capital stock of any Securitization Vehicle or any other instrument
evidencing any Seller's Retained Interest might otherwise have to liquidate,
consolidate, combine, collapse or disregard the entity status of such
Securitization Vehicle and (ii) the Collateral Agent and other Secured Parties
hereby waive and release any right to require (A) that any Securitization
Vehicle be in any manner merged, combined, collapsed or consolidated with or
into any Loan Party, including by way of substantive consolidation in a
bankruptcy case or (B) that the status of any Securitization Vehicle as a
separate entity be in any respect disregarded; provided, however, that the
provisions of this Section 9.14 shall cease to be of any force or effect when
the Obligations have been paid in full and the Revolving Commitments have been
terminated or expired; and provided further, that the provisions hereof will not
apply to a Lender, the Administrative Agent, the Collateral Agent or the
Collateral Trustee in its capacity as a holder of Third Party Securities; and
provided, further, however, that the provisions of this Section 9.14 shall not
limit any of the rights of any Lender or other Secured Party, or the ability of
such Person to exercise any such rights, under any agreement evidencing any
Securitization or under any Third Party Security. Each Lender, the
Administrative Agent and the Collateral Agent agree and acknowledge that the
agent acting on behalf of the holders of Third Party Securities is an express
third party beneficiary with respect to this Section 9.14(a) (and only this
Section 9.14(a)) and such agent shall have the right to enforce compliance by
the Secured Parties with this Section.
(b) Upon the transfer or purported transfer by the Borrower or
any Restricted Subsidiary of Securitization Assets to a Securitization Vehicle
in a Securitization permitted by Sections 6.05 and 6.06, the Liens with respect
to such Securitization Assets under the Security Documents shall automatically
be released (and each of the Administrative Agent and the Collateral Agent, as
applicable, is hereby authorized to execute and enter into any such releases and
other documents as the Borrower may reasonably request in order to give effect
thereto).
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALLIED WASTE INDUSTRIES, INC.,
by
_____________________________
Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
_____________________________
Name:
Title:
JPMORGAN CHASE BANK, individually
and as administrative agent,
collateral agent and collateral
trustee,
by
_____________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.,
individually and as syndication
agent,
by
_____________________________
Name:
Title:
UBS AG, CAYMAN ISLANDS BRANCH,
individually and as
co-documentation agent,
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
150
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH,
individually and as
co-documentation agent,
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH,
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
SIGNATURE PAGE TO THE ALLIED WASTE
CREDIT AGREEMENT DATED AS OF
JULY 21, 1999 AND AMENDED
AND RESTATED AS OF AUGUST 20, 2003
Name of Institution: _________________________________________
by
_____________________________
Name:
Title: