1
Exhibit 10.32
--------------------------------------------------------------------------------
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1999
by and among
WASTE MANAGEMENT, INC.
(the "Borrower")
and
THE GUARANTORS
and
BANK OF AMERICA, N.A.
("BOA")
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
("MGT")
AND THE OTHER FINANCIAL INSTITUTIONS WHICH BECOME
A PARTY TO THIS AGREEMENT
(Collectively, the "Banks")
and
MGT AS ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT
(the "Administrative Agent")
and
BANC OF AMERICA SECURITIES, LLC AND CHASE SECURITIES INC.
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
(the "Joint Lead Arrangers and Joint Book Managers")
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Section 1. DEFINITIONS AND RULES OF INTERPRETATION..................................................1
Section 1.1. Definitions...................................................................1
Section 1.2. Rules of Interpretation.......................................................15
Section 2. THE LOAN FACILITIES......................................................................16
Section 2.1. Commitment to Lend............................................................16
Section 2.2. Facility Fee..................................................................17
Section 2.3. Reduction of Total Commitment.................................................17
Section 2.4. The Syndicated Notes..........................................................17
Section 2.5. Interest on Loans.............................................................18
Section 2.6. Requests for Syndicated Loans.................................................18
Section 2.7. Election of Eurodollar Rate; Notice of Election; Interest Periods; Minimum
Amounts.....................................................................................19
Section 2.8. Funds for Syndicated Loans....................................................20
Section 2.9. Maturity of the Loans and Reimbursement Obligations...........................20
Section 2.10. Optional Prepayments or Repayments of Loans..................................20
Section 2.11. Swing Line Loans; Settlements................................................21
Section 3. LETTERS OF CREDIT........................................................................22
Section 3.1. Letter of Credit Commitments..................................................22
Section 3.2. Reimbursement Obligation of the Borrower......................................23
Section 3.3. Obligations Absolute..........................................................24
Section 3.4. Reliance by the Issuing Banks.................................................24
Section 3.5. Notice Regarding Letters of Credit............................................24
Section 3.6. Letter of Credit Fee..........................................................24
Section 4. COMPETITIVE BID LOANS....................................................................25
Section 4.1. The Competitive Bid Option....................................................25
Section 4.2. Competitive Bid Loan Accounts: Competitive Bid Notes.........................25
Section 4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes..........26
Section 4.4. Alternative Manner of Procedure...............................................27
Section 4.5. Submission and Contents of Competitive Bid Quotes.............................27
Section 4.6. Notice to Borrower............................................................28
Section 4.7. Acceptance and Notice by Borrower and Administrative Agent....................28
Section 4.8. Allocation by Administrative Agent............................................29
Section 4.9. Funding of Competitive Bid Loans..............................................29
Section 4.10. Funding Losses...............................................................29
Section 4.11. Repayment of Competitive Bid Loans; Interest.................................30
Section 5. Provisions Relating to All Loans and Letters of Credit...................................30
Section 5.1. Payments......................................................................30
Section 5.2. Mandatory Repayments of the Loans.............................................32
Section 5.3. Computations..................................................................32
Section 5.4. Illegality; Inability to Determine Eurodollar Rate............................32
Section 5.5. Additional Costs, Etc.........................................................33
Section 5.6. Capital Adequacy..............................................................34
Section 5.7. Certificate...................................................................34
3
ii
Section 5.8. Eurodollar and Competitive Bid Indemnity......................................34
Section 5.9. Interest on Overdue Amounts...................................................35
Section 5.10. Interest Limitation..........................................................35
Section 5.11. Reasonable Efforts to Mitigate...............................................35
Section 5.12. Replacement of Banks.........................................................36
Section 5.13. Advances by Administrative Agent.............................................36
Section 6. REPRESENTATIONS AND WARRANTIES...........................................................37
Section 6.1. Corporate Authority...........................................................37
Section 6.2. Governmental and Other Approvals..............................................38
Section 6.3. Title to Properties; Leases...................................................38
Section 6.4. Financial Statements; Solvency................................................38
Section 6.5. No Material Changes, Etc......................................................39
Section 6.6. Franchises, Patents, Copyrights, Etc..........................................39
Section 6.7. Litigation....................................................................39
Section 6.8. No Materially Adverse Contracts, Etc..........................................39
Section 6.9. Compliance With Other Instruments, Laws, Etc..................................39
Section 6.10. Tax Status...................................................................40
Section 6.11. No Event of Default..........................................................40
Section 6.12. Holding Company and Investment Company Acts..................................40
Section 6.13. Absence of Financing Statements, Etc.........................................40
Section 6.14. Employee Benefit Plans.......................................................41
Section 6.14.1. In General........................................................41
Section 6.14.2. Terminability of Welfare Plans....................................41
Section 6.14.3. Guaranteed Pension Plans..........................................41
Section 6.14.4. Multiemployer Plans...............................................41
Section 6.15. Environmental Compliance.....................................................42
Section 6.16. True Copies of Charter and Other Documents...................................43
Section 6.17. Disclosure...................................................................43
Section 6.18. Permits and Governmental Authority...........................................43
Section 6.19. Year 2000 Compliance.........................................................43
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER....................................................44
Section 7.1. Punctual Payment..............................................................44
Section 7.2. Maintenance of U.S. Office....................................................44
Section 7.3. Records and Accounts..........................................................44
Section 7.4. Financial Statements, Certificates and Information............................44
Section 7.5. Existence and Conduct of Business.............................................46
Section 7.6. Maintenance of Properties.....................................................46
Section 7.7. Insurance.....................................................................46
Section 7.8. Taxes.........................................................................47
Section 7.9. Inspection of Properties, Books and Contracts.................................47
Section 7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of Material
Licenses and Permits........................................................................47
Section 7.11. Environmental Indemnification................................................47
Section 7.12. Further Assurances...........................................................48
Section 7.13. Notice of Potential Claims or Litigation.....................................48
4
iii
Section 7.14. Notice of Certain Events Concerning Insurance and Environmental Claims.......48
Section 7.15. Notice of Default............................................................49
Section 7.16. Use of Proceeds..............................................................49
Section 7.17. Certain Transactions.........................................................50
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...............................................50
Section 8.1. Restrictions on Indebtedness..................................................50
Section 8.2. Restrictions on Liens.........................................................51
Section 8.3. Restrictions on Investments...................................................52
Section 8.4. Mergers, Consolidations, Sales................................................53
Section 8.5. Restricted Distributions and Redemptions......................................55
Section 8.6. Employee Benefit Plans........................................................55
Section 9. FINANCIAL COVENANTS OF THE BORROWER......................................................56
Section 9.1. Interest Coverage Ratio.......................................................56
Section 9.2. Total Debt to EBITDA..........................................................56
Section 9.3. Minimum Net Worth.............................................................56
Section 10. CONDITIONS PRECEDENT....................................................................57
Section 10.1. Conditions To Effectiveness..................................................57
Section 10.1.1. Corporate Action..................................................57
Section 10.1.2. Loan Documents, Etc...............................................57
Section 10.1.3. Certified Copies of Charter Documents.............................57
Section 10.1.4. Incumbency Certificate............................................57
Section 10.1.5. Certificates of Insurance.........................................58
Section 10.1.6. Opinions of Counsel...............................................58
Section 10.1.7. Satisfactory Financial Condition..................................58
Section 10.1.8. Payment of Amendment Fees.........................................58
Section 10.1.9. Amendments to Existing Debt.......................................58
Section 10.2. Notice of Effective Date.....................................................58
Section 11. Conditions to all Loans.................................................................59
Section 11.1. Representations True.........................................................59
Section 11.2. Performance; No Event of Default.............................................59
Section 11.3. No Legal Impediment..........................................................59
Section 11.4. Governmental Regulation......................................................59
Section 11.5. Proceedings and Documents....................................................59
Section 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT..............................60
Section 12.1. Events of Default and Acceleration...........................................60
Section 12.2. Termination of Commitments...................................................62
Section 12.3. Remedies.....................................................................62
Section 13. SETOFF..................................................................................63
Section 14. EXPENSES................................................................................63
Section 15. THE ADMINISTRATIVE AGENT................................................................63
Section 15.1. Appointment, Powers and Immunities...........................................63
Section 15.2. Actions By Administrative Agent..............................................64
Section 15.3. Indemnification..............................................................64
5
iv
Section 15.4. Reimbursement................................................................64
Section 15.5. Documents....................................................................65
Section 15.6. Non-Reliance on Administrative Agent and Other Banks.........................65
Section 15.7. Resignation of Administrative Agent..........................................66
Section 15.8. Action by the Banks, Consents, Amendments, Waivers, Etc......................66
Section 16. INDEMNIFICATION.........................................................................67
Section 17. WITHHOLDING TAXES.......................................................................67
Section 18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION...........................................69
Section 18.1. Sharing of Information with Section 20 Subsidiary............................69
Section 18.2. Confidentiality..............................................................69
Section 18.3. Prior Notification...........................................................69
Section 18.4. Other........................................................................70
Section 19. SURVIVAL OF COVENANTS, ETC..............................................................70
Section 20. ASSIGNMENT AND PARTICIPATION............................................................70
Section 21. PARTIES IN INTEREST.....................................................................71
Section 22. NOTICES, ETC............................................................................72
Section 23. MISCELLANEOUS...........................................................................72
Section 24. CONSENTS, ETC...........................................................................72
Section 25. WAIVER OF JURY TRIAL....................................................................73
Section 26. GOVERNING LAW; SUBMISSION TO JURISDICTION...............................................73
Section 27. SEVERABILITY............................................................................74
Section 28. GUARANTY................................................................................74
Section 28.1. Guaranty.....................................................................74
Section 28.2. Guaranty Absolute............................................................74
Section 28.3. Effectiveness; Enforcement...................................................75
Section 28.4. Waiver.......................................................................75
Section 28.5. Expenses.....................................................................75
Section 28.6. Concerning Joint and Several Liability of the Guarantors.....................76
Section 28.7. Waiver.......................................................................78
Section 28.8. Subrogation; Subordination...................................................78
Section 29. Pari Passu treatment....................................................................78
Section 30. TRANSITIONAL ARRANGEMENTS...............................................................79
Section 31. FINAL AGREEMENT.........................................................................79
Exhibits
Exhibit A Form of Syndicated Note
Exhibit B Form of Swing Line Note
Exhibit C Form of Competitive Bid Note
Exhibit D Form of Syndicated Loan Request
Exhibit E Form of Letter of Credit Request
Exhibit F Form of Compliance Certificate
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Competitive Bid Quote Request
6
v
Exhibit I Form of Invitation for Competitive Bid Quotes
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Notice of Acceptance/Rejection of
Competitive Bid Quote(s)
Exhibit L Form of Net Cash Proceeds Certificate
Schedules
Schedule 1 Banks; Commitment Percentages
Schedule 1.1(a) Domestic Strategic Dispositions
Schedule 1.1(b) European Strategic Dispositions
Schedule 3.1(a) Existing Letters of Credit
Schedule 6.7 Litigation
Schedule 6.15 Environmental Compliance
Schedule 8.1(e) Existing Indebtedness of WMH
Schedule 8.2(a) Existing Liens
7
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as
of the 15th day of December, l999, by and among WASTE MANAGEMENT, INC. (f/k/a
USA Waste Services, Inc.), a Delaware corporation having its chief executive
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"),
the Guarantors, and BANK OF AMERICA, N.A., a national banking association having
a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("BOA"),
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, a New York state banking association
having its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("MGT"), and each of the other financial institutions party hereto
(collectively, the "Banks"), MGT as administrative agent and documentation agent
(the "Administrative Agent"), and Banc of America Securities LLC and Chase
Securities Inc. as joint lead arrangers and joint book managers (the "Joint Lead
Arrangers and Joint Book Managers").
WITNESSETH:
WHEREAS, the Borrower, Sanifill, WMH, BOA, MGT, certain of the Banks,
and MGT as Administrative and Documentation Agent thereunder (collectively, the
"Original Parties") are party to that certain Second Amended and Restated
Revolving Credit Agreement dated as of July 16, 1998, by and among the Original
Parties (the "Existing Credit Agreement"); and
WHEREAS, the Borrower has requested changes in certain terms and the
pricing of the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, on the Effective Date, the Existing Credit Agreement shall be
amended and restated by this Agreement, the terms of which are as follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings
set forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Absolute Competitive Bid Loan(s). See Section 4.3(a).
Accountants. See Section 7.4(a).
Administrative Agent. See Preamble.
Affected Bank. See Section 5.12.
8
2
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agents. BOA, BancAmerica Securities, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities
Inc.
Agreement. This Third Amended and Restated Revolving Credit Agreement,
including the Schedules and Exhibits hereto, as from time to time amended and
supplemented in accordance with the terms hereof.
Allied Waste Transactions. The series of transactions, which have been
designed to be substantially cash neutral in the aggregate, to be entered into
among Allied Waste Services, Inc. ("Allied"), the Company, and certain of their
respective affiliates, pursuant to which, among other things, (i) the Company
through its affiliates will purchase from Allied and its affiliates all of the
outstanding capital stock of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Limited ("BFIL") which
owns certain solid waste operations in Canada (the "Canadian Operations"), and
(ii) Allied through its affiliates will acquire from the Company and its
affiliates certain solid waste operations in the United States (the "US
Operations"); and including, in each case, such divestitures of Canadian
Operations and US Operations as may be required by applicable governmental
authorities in connection with their review of such transactions for their
potential antitrust and competitive effects.
Applicable Canadian Pension Legislation. At any time, any pension or
retirement benefits legislation (be it federal, provincial, territorial, or
otherwise) then applicable to any of the Canadian Subsidiaries, including the
Pension Benefits Act (Ontario), the Income Tax Act (Canada), and all regulations
made thereunder.
Applicable Eurodollar Rate. The applicable rate per annum of interest
on the Eurodollar Loans shall be as set forth in the Pricing Table.
Applicable Facility Rate. The applicable rate per annum with respect to
the Facility Fee shall be as set forth in the Pricing Table.
Applicable L/C Rate. The applicable rate per annum on the Maximum
Drawing Amount shall be as set forth in the Pricing Table.
Applicable Requirements. See Section 7.10.
Applicable Swing Line Rate. The annual rate of interest agreed upon
from time to time by MGT and the Borrower with respect to Swing Line Loans.
Assignment and Acceptance. See Section 20.
Availability. As of any date of determination, the aggregate amount of
unused commitments of the lenders party to this Agreement and the 364 Day
Facility as of such date.
Balance Sheet Date. December 31, 1998.
9
3
Banks. See Preamble.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Administrative Agent at its Head Office as its "prime rate"
(it being understood that such rate is a reference rate and not necessarily the
lowest rate of interest charged by the Administrative Agent), or (b) one percent
(1%) above the Overnight Federal Funds Effective Rate.
Base Rate Loans. Syndicated Loans bearing interest calculated by
reference to the Base Rate.
BKB. See definition of "364-Day Facility".
BOA. See Preamble.
Borrower. See Preamble.
Business Day. Any day, other than a Saturday, Sunday or any day on
which banking institutions in New York, New York are authorized by law to close,
and, when used in connection with a Eurodollar Loan, a Eurodollar Business Day.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CERCLA. See Section 6.15(a).
Certified or certified. With respect to the financial statements of any
Person, such statements as audited by a firm of independent auditors, whose
report expresses the opinion, without qualification, that such financial
statements present fairly the financial position of such Person.
CFO or the CAO. See Section 7.4(b).
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Commitment. With respect to each Bank, such Bank's commitment to make
Syndicated Loans to, and to participate in the issuance, extension and renewal
of Letters of Credit for the account of, the Borrower, determined by multiplying
such Bank's Commitment Percentage by the Total Commitment.
Commitment Percentage. With respect to each Bank, the percentage
initially set forth next to such Bank's name on Schedule 1 hereto, as the same
may be adjusted in accordance with Section 20.
Competitive Bid Loan(s). A borrowing hereunder consisting of one or
more loans made by any of the participating Banks whose offer to make a
Competitive Bid Loan as part of such borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 4 hereof.
10
4
Competitive Bid Loan Accounts. See Section 4.2(a).
Competitive Bid Margin. See Section 4.5(b)(iv).
Competitive Bid Notes. See Section 4.2(b).
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid
Loan in accordance with Section 4.5 hereof.
Competitive Bid Quote Request. See Section 4.3.
Competitive Bid Rate. See Section 4.5(b)(v).
Compliance Certificate. See Section 7.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes, or EBIT. For any
period, the Consolidated Net Income (or Deficit) of the Borrower and its
Subsidiaries on a consolidated basis plus the sum of (1) interest expense, (2)
income taxes, and (3) $1,762,517,000 in charges, taken as a special charge in
respect of the Borrower's internal review in the fiscal quarter ending September
30, 1999, to the extent that each of items (1) through (3) was deducted, without
duplication, in determining Consolidated Net Income (or Deficit) in the relevant
period.
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense, and
(b) amortization expense to the extent the same would be included in the
calculation of Consolidated Net Income (or Deficit) for such period, determined
in accordance with GAAP.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries on a consolidated basis, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP.
Consolidated Net Worth. The sum of the par value of the capital stock
(excluding treasury stock), capital in excess of par or stated value of shares
of capital stock, retained earnings (minus accumulated deficit) and any other
account which, in accordance with GAAP, constitute stockholders' equity, of the
Borrower and its Subsidiaries determined on a consolidated basis, excluding any
effect of foreign currency transaction computed pursuant to Financial Accounting
Standards Board Statement No. 52, as amended, supplemented or modified from time
to time, or otherwise in accordance with GAAP.
Consolidated Tangible Assets. Consolidated Total Assets less the sum
of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the
11
5
fair market value thereof, trademarks, trade names, service marks,
customer lists, brand names, copyrights, patents and licenses, and
rights with respect to the foregoing; plus
(b) all amounts representing any write-up in the book value of
any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
Consolidated Total Assets. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest expense required by GAAP to be paid or accrued during such
period on all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, including capitalized interest expense
for such period.
364 Day Facility. That certain Amended and Restated Loan Agreement
dated as of December 15, 1999 by and among the Borrower, WMH as guarantor,
BankBoston, N.A. ("BKB"), BOA, Chase Bank of Texas, N.A., Deutsche and the other
banks party thereto, and BKB as administrative agent thereunder, Banc of America
Securities LLC and Chase Securities Inc. as joint lead arrangers and joint book
managers thereunder, BOA and Chase Securities Inc. as syndication agents
thereunder and Deutsche as documentation agent thereunder, as amended from time
to time.
Defaulting Bank. See Section 5.12.
Defaults. See Section 12.1.
Deutsche. Deutsche Bank AG, New York Branch, the duly licensed New York
branch of a German corporation having its principal place of business at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Disclosure Documents. The Borrower's financial statements referred to
in Section 6.4 and filings made by the Borrower or WMH with the Securities and
Exchange Commission that were publicly available prior to the Effective Date
which were provided to the Banks.
Disposal. See "Release".
Distribution. The declaration or payment of any dividend or other
return on equity on or in respect of any shares of any class of capital stock,
any partnership interests or any membership interests of any Person, other than
dividends or other such returns payable solely in shares of common stock,
partnership interests or membership units of such Person, as the case may be;
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
12
6
Dollars or US$ or $ or U.S. Dollars. Dollars in lawful currency of the
United States of America.
Dome. Dome Merger Subsidiary, Inc., a Delaware corporation and wholly
owned Subsidiary of Borrower.
Domestic Strategic Dispositions. Any sale or other disposition of core
and non-core assets owned by the Borrower and its Subsidiaries formed under the
laws of the United States or any State thereof as more particularly described in
Schedule 1.1(a), as such Schedule 1.1(a) may be added to from time to time by
the Borrower with the approval of the Administrative Agent.
Drawdown Date. The date on which any Loan is made or is to be made, or
any amount is paid by an Issuing Bank under a Letter of Credit.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
Effective Date. The date on which the conditions precedent set forth in
Section 10.1 hereof are satisfied and the Majority Banks consent to this
Agreement.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA or Applicable Canadian Pension Legislation maintained or
contributed to by the Borrower, any of its Subsidiaries, or any ERISA Affiliate,
other than a Multiemployer Plan.
Environmental Laws. See Section 6.15(a).
EPA. See Section 6.15(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower or any of its Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event within the meaning of
Section 4043 of ERISA and the regulations promulgated thereunder with respect to
a Guaranteed Pension Plan as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
13
7
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank set forth
in the administrative materials provided to the Administrative Agent;
thereafter, upon notice to the Administrative Agent, such other office of such
Bank that shall be making or maintaining Eurodollar Loans.
Eurodollar Loans. Syndicated Loans bearing interest calculated by
reference to the Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Loan, the rate of interest equal to (i) the arithmetic average of the rates per
annum for each Reference Bank at which such Reference Bank's Eurodollar Lending
Office is offered Dollar deposits at approximately 10:00 a.m. (New York time)
two (2) Eurodollar Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where the eurodollar operations of such
Eurodollar Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan of such Reference
Bank to which such Interest Period applies, divided by (ii) a number equal to
1.00 minus the Eurocurrency Reserve Rate, if applicable (rounded upwards to the
nearest 1/16 of one percent).
European Credit Facilities. That certain Credit Agreement dated
November 26, 1998, providing for borrowings by Waste Management International
("International") and other foreign Subsidiaries of the Borrower, guaranteed by
the Borrower, in the amount of Euro 167,000,000, as amended; and that certain
Credit Agreement dated November 26, 1998, providing for borrowings by
International and other foreign subsidiaries, guaranteed by the Borrower, in the
amount of Euro 30,000,000, as amended.
European Strategic Dispositions. Any sale or other disposition of core
and non-core assets owned by any Subsidiary of the Borrower not formed under the
laws of the United States or any State thereof as more particularly described in
Schedule 1.1(b), as such Schedule 1.1(b) may be added to from time to time by
the Borrower with the approval of the Administrative Agent.
Events of Default. See Section 12.1.
Existing Credit Agreement. See Recitals.
Existing Domestic Bank Debt. The amount of Indebtedness outstanding
under this Agreement and the 364 Day Facility from time to time.
Facility Fee. See Section 2.2.
14
8
generally accepted accounting principles or GAAP. (i) When used in
Section 9, whether directly or indirectly through reference to a capitalized
term used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Obligations. See Section 28.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
its Subsidiaries or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantor(s). Sanifill and WMH, collectively, until the release of
Sanifill pursuant to Section 28.3 of this Agreement).
Hazardous Substances. See Section 6.15(b).
Head Office. The Administrative Agent's head office located in New
York, New York, or at such other location as the Administrative Agent may
designate from time to time.
Indebtedness. Collectively without duplication, whether classified as
Indebtedness, an Investment or otherwise on the obligor's balance sheet, (a) all
indebtedness for borrowed money, (b) all obligations for the deferred purchase
price of property or services (other than trade payables not overdue by more
than ninety (90) days incurred in the ordinary course of business), (c) all
obligations evidenced by notes, bonds, debentures or other similar debt
instruments, (d) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations, liabilities and indebtedness under Capitalized Leases, (f) all
obligations, liabilities or indebtedness (contingent or otherwise) under surety,
performance bonds or any other bonding arrangements, (g) all Indebtedness of
others referred to in clauses (a) through (f) above which is guaranteed, or in
effect guaranteed, by such obligor directly or indirectly in any manner,
including through an agreement (A) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling any Person to make payment of
such
15
9
Indebtedness or to assure the holder of such Indebtedness against loss, (C) to
supply funds to or in any other manner invest in any Person (including any
agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (D) otherwise to assure any Person
against loss, and (h) all Indebtedness referred to in clauses (a) through (g)
above secured or supported by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured or supported by) any
lien or encumbrance on (or other right of recourse to or against) property
(including, without limitation, accounts and contract rights), even though the
owner of the property has not assumed or become liable, contractually or
otherwise, for the payment of such Indebtedness; provided that if a Permitted
Receivables Transaction is outstanding and is accounted for as a sale of
accounts receivable under generally accepted accounting principles, Indebtedness
determined as aforesaid shall be adjusted to include the additional
Indebtedness, determined on a consolidated basis, which would have been
outstanding had such Permitted Receivables Transaction been accounted for as a
borrowing. The sum of all such Indebtedness of the Borrower and its Subsidiaries
on a consolidated basis under (a) through (h) above shall be referred to as
"Total Debt"; provided, however, that Indebtedness under (f) above shall be
included in such calculation only to the extent that a surety has been called
upon to make payment on a bond.
Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in accordance with
this Agreement (i) for any Base Rate Loan or Swing Line Loan, the first day of
the month; (ii) for any Eurodollar Loan, 1, 2, 3, or 6 months; (iii) for any
Absolute Competitive Bid Loan, from 7 through 180 days; and (iv) for any LIBOR
Competitive Bid Loan, 1, 2, 3, 4, 5, or 6 months; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in accordance with this Agreement or if
such period has no numerically corresponding day, on the last Business Day of
such period; provided that any Interest Period which would otherwise end on a
day which is not a Business Day shall be deemed to end on the next succeeding
Business Day; provided further that for any Interest Period for any Eurodollar
Loan or LIBOR Competitive Bid Loan, if such next succeeding Business Day falls
in the next succeeding calendar month, such Interest Period shall be deemed to
end on the next preceding Business Day; and provided further that no Interest
Period shall extend beyond the Maturity Date.
Interim Balance Sheet Date. September 30, 1999.
Investments. All expenditures made by a Person and all liabilities
incurred (contingently or otherwise) by a Person for the acquisition of stock
(other than the stock of wholly owned Subsidiaries), pre-payments for use of
landfill air space in excess of usual and customary industry practice, or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties or other commitments as described
under Indebtedness, or obligations of, any other Person, including without
limitation, the funding of
16
10
any captive insurance company (other than loans, advances, capital contributions
or transfers of property to any wholly owned Subsidiaries or guaranties with
respect to Indebtedness of wholly owned Subsidiaries). In determining the
aggregate amount of Investments outstanding at any particular time: (a) the
amount of any Investment represented by a guaranty shall be taken at not less
than the principal amount of the obligations guaranteed and still outstanding;
(b) there shall be included as an Investment all interest accrued with respect
to Indebtedness constituting an Investment unless and until such interest is
paid; (c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Issuance Fee. See Section 3.6.
Issuing Banks. The Bank(s) issuing Letters of Credit, which shall be
(a) MGT, BOA, BankBoston, N.A., Chase Bank of Texas, N.A. and Fleet Bank, N.A.
and (b) such other Banks as agreed to by the Borrower and the Administrative
Agent.
Letter of Credit Applications. Letter of credit applications in such
form as may be agreed upon by the Borrower and the Issuing Bank from time to
time which are entered into pursuant to Section 3 hereof, as such Letter of
Credit Applications are amended, varied or supplemented from time to time;
provided, however, in the event of any conflict or inconsistency between the
terms of any Letter of Credit Application and this Agreement, the terms of this
Agreement shall control.
Letter of Credit Fee. See Section 3.6.
Letter of Credit Participation. See Section 3.1(b).
Letters of Credit. Standby or direct-pay letters of credit issued or to
be issued by the Issuing Banks under Section 3 hereof for the account of the
Borrower.
LIBOR Competitive Bid Loan(s). See Section 4.3(a).
LIBOR Rate. For any Interest Period with respect to a LIBOR Competitive
Bid Loan, (a) the rate of interest equal to the rate determined by the
Administrative Agent at which Dollar deposits for such Interest Period are
offered based on information presented on Telerate Page 3750 as of 11:00 a.m.
(London time) two (2) Eurodollar Business Days prior to the first day of such
Interest Period, or (b) if such rate is not shown at such place, the rate of
interest equal to (i) the arithmetic average of the rates per annum for each
Reference Bank at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two (2) Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the eurodollar
operations of such Eurodollar Lending Office are customarily conducted, for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Loan of such Reference Bank to which such
17
11
Interest Period applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate, if applicable (rounded upwards to the nearest 1/16 of
one percent).
Loan Documents. This Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and any documents, instruments or agreements
executed in connection with any of the foregoing, each as amended, modified,
supplemented, or replaced from time to time.
Loans. Collectively, the Syndicated Loans, the Swing Line Loans and the
Competitive Bid Loans.
Majority Banks. The Banks with fifty-one percent (51%) of the Total
Commitment; provided that in the event that the Total Commitment has been
terminated, the Majority Banks shall be the Banks holding fifty-one percent
(51%) of the aggregate outstanding principal amount of the Obligations on such
date.
Material Subsidiary. Any Subsidiary which, at the time such
determination is made, (a) has assets, revenues, or liabilities equal to at
least $20,000,000, or (b) is the holder of or the applicant for a permit to
operate a solid waste facility pursuant to RCRA or any analogous state law.
Maturity Date. August 7, 2002.
Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit.
MGT. See Preamble.
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate.
Net Cash Proceeds. With respect to any sale of any assets of the
Borrower or any of its Subsidiaries, the gross cash consideration received by
the Borrower or any of its Subsidiaries, net of (a) commissions, direct sales
costs, normal closing costs and adjustments, (b) the amount used to repay any
Indebtedness secured by such assets, (c) any amount which by the terms of such
sale, or by applicable law must be repaid out of the proceeds of such asset
sale, (d) all amounts to be provided by the seller as a reserve, in accordance
with GAAP, or retained in escrow with respect to any liabilities associated with
the assets disposed of in such asset sale, (e) income taxes attributable to such
sale, and (f) professional fees and expenses incurred directly or payable in
connection therewith; provided that if any consideration which would otherwise
constitute "Net Cash Proceeds" is required to be held in escrow pending
determination of whether a purchase price adjustment will be made, such escrow
amount shall become "Net Cash Proceeds" only at such time as it is released from
escrow. For purposes of determining the amount of Net Cash Proceeds associated
with any asset sale which is in a currency other than U.S. Dollars, the Borrower
shall, for purposes of Section Section 8.4 and 8.5, calculate an equivalent
amount
18
12
of such Net Cash Proceeds in U.S. Dollars by utilizing the conversion rates
published in the Wall Street Journal on the first Business Day of the week
during which such asset sale occurred.
New Lending Office. See Section 5.1(c).
Non-U.S. Bank. See Section 5.1(b).
Notes. Collectively, the Competitive Bid Notes, the Syndicated Notes,
and the Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Administrative Agent arising or incurred
under this Agreement or any of the other Loan Documents or in respect of any of
the Loans made or Reimbursement Obligations incurred or the Letters of Credit,
the Notes, or any other instrument at any time evidencing any thereof
individually or collectively, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise.
Original Parties. See Recitals.
Overnight Federal Funds Effective Rate. The overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time, or if such rate is not published, the
average of the quotations at approximately 11:00 a.m. New York time for the day
of such transaction(s), received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. See Section 8.2.
Permitted Receivables Transaction. Any sale or sales of, and/or
securitization of, any accounts receivable of the Borrower and/or any of its
Subsidiaries (the "Receivables") pursuant to which (a) the Borrower and its
Subsidiaries realize aggregate net proceeds of not more than $500,000,000 at any
one time outstanding, including, without limitation, any revolving purchase(s)
of Receivables where the maximum aggregate uncollected purchase price (exclusive
of any deferred purchase price) for such Receivables at any time outstanding
does not exceed $500,000,000, and (b) which Receivables shall not be discounted
more than 25%.
Person. Any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or political
subdivision thereof.
19
13
Pricing Table:
--------------------------------------------------------------------------------------------------------------
APPLICABLE
SENIOR PUBLIC APPLICABLE APPLICABLE EURODOLLAR
LEVEL DEBT RATING FACILITY RATE L/C RATE RATE
--------------------------------------------------------------------------------------------------------------
1 (Greater than or equal to BBB by 0.2500% 1.0000% Eurodollar Rate
Standard & Poor's and greater than per annum per annum plus 1.0000%
or equal to Ba2 by Moody's) or per annum
(greater than or equal to BBB- by
Standard & Poor's and greater than
or equal to Ba1 by Moody's)
--------------------------------------------------------------------------------------------------------------
2 BBB- by Standard & Poor's and Ba2 by 0.3000% 1.2000% Eurodollar Rate
Moody's per annum per annum plus 1.2000%
per annum
--------------------------------------------------------------------------------------------------------------
3 (BB+ by Standard & Poor's and Ba1 or 0.3750% 1.3750% Eurodollar Rate
Ba2 by Moody's) or (BB by Standard & per annum per annum plus 1.3750%
Poor's and Ba1 by Moody's) per annum
--------------------------------------------------------------------------------------------------------------
4 BB by Standard & Poor's and Ba2 by 0.4000% 1.6000% Eurodollar Rate
Moody's per annum per annum plus 1.6000%
per annum
--------------------------------------------------------------------------------------------------------------
5 (Less than BB by Standard & Poor's 0.5000% 1.7500% Eurodollar Rate
or Ba2 by Moody's) or (Unrated by per annum per annum plus 1.7500%
Standard & Poor's and Moody's) per annum
--------------------------------------------------------------------------------------------------------------
The applicable rates charged for any day shall be determined by the Senior
Public Debt Rating in effect as of that day.
RCRA. See Section 6.15(a).
Real Property. All real property heretofore, now, or hereafter owned,
operated, or leased by the Borrower or any of its Subsidiaries.
Reference Banks. BOA, Deutsche and MGT.
20
14
Regulatory Disposition. The disposition of any assets of the Borrower
and its Subsidiaries required under antitrust laws in connection with the WMI
Merger.
Reimbursement Obligation. The Borrower's obligation to reimburse the
applicable Issuing Bank and the Banks on account of any drawing under any Letter
of Credit, all as provided in Section 3.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section Section 9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed")
shall have the meaning specified in the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. Section Section 6901 et seq. ("RCRA") and regulations
promulgated thereunder; provided, that in the event either CERCLA or RCRA is
amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply as of the effective date of such amendment and provided
further, to the extent that the laws of Canada or a state, province, territory
or other political subdivision thereof wherein the property lies establish a
meaning for "Release" or "Disposal" which is broader than specified in either
CERCLA, or RCRA, such broader meaning shall apply to the Borrower's or any of
its Subsidiaries' activities in that state, province, territory or political
subdivision.
Replacement Bank. See Section 5.12.
Replacement Notice. See Section 5.12.
Sanifill. Sanifill, Inc., a Delaware corporation having its chief
executive office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Sanifill Convertible Subordinated Debt. Indebtedness under that certain
indenture dated as of March 1, 1996, by and between Sanifill and Chase Bank of
Texas (f/k/a Texas Commerce Bank National Association) as Trustee, as in effect
on August 7, 1997, with respect to $115,000,000 of 5% convertible subordinated
debt due March 1, 2006.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
Senior Public Debt Rating. The ratings of the Borrower's public
unsecured long-term senior debt, without third party credit enhancement, issued
by Moody's and Standard & Poor's.
Standard & Poor's. Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Strategic Dispositions. Domestic Strategic Dispositions and European
Strategic Dispositions.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or
21
15
Subsidiaries at least a majority of the outstanding capital stock or other
interest entitled to vote generally.
Swing Line Loans. See Section 2.11(a).
Swing Line Note. See Section 2.11(a).
Swing Line Settlement. The making or receiving of payments, in
immediately available funds, by the Banks to or from the Administrative Agent in
accordance with Section 2.11 hereof to the extent necessary to cause each Bank's
actual share of the outstanding amount of the Syndicated Loans to be equal to
such Bank's Commitment Percentage of the outstanding amount of such Syndicated
Loans, in any case when, prior to such action, the actual share is not so equal.
Swing Line Settlement Amount. See Section 2.11(b).
Swing Line Settlement Date. See Section 2.11(b).
Swing Line Settling Bank. See Section 2.11(b).
Syndicated Loan Request. See Section 2.6(a).
Syndicated Loans. A borrowing hereunder consisting of one or more loans
made by the Banks to the Borrower under the procedure described in Section
2.1(a) and Section 2.11 hereof.
Syndicated Notes. See Section 2.4(a).
Terminated Plans. The Waste Management, Inc. Pension Plan and The Waste
Management of Alameda County, Inc. Retirement Plan.
Total Commitment. $2,000,000,000, as such amount may be reduced
pursuant to Section 2.3 hereof, or, if such Total Commitment has been terminated
pursuant to Section 2.3 or Section 12.2 hereof, zero.
WMH. Waste Management Holdings, Inc. (f/k/a Waste Management, Inc.), a
wholly owned subsidiary of the Borrower.
WMI Merger. The merger of Dome into WMH pursuant to the WMI Merger
Agreement, on or about July 16, 1998, with WMH having become the surviving
corporation and having become a wholly owned subsidiary of the Borrower and with
WMH having changed its name to Waste Management Holdings, Inc.
WMI Merger Agreement. The Agreement and Plan of Merger, dated as of
March 10, 1998, among the Borrower, Dome and WMH.
Year 2000 Compliance Issue. The risk that computer applications used by
the Borrower or any of its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999.
SECTION 1.2. RULES OF INTERPRETATION.
22
16
(a) Unless otherwise noted, a reference to any document or
agreement (including this Agreement) shall include such document or
agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the
meanings assigned to them therein.
(h) Reference to a particular "Section " refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
SECTION 2. THE LOAN FACILITIES.
SECTION 2.1. COMMITMENT TO LEND.
(a) Subject to the terms and conditions set forth in this
Agreement, each of the Banks severally agrees to lend to the Borrower
and the Borrower may borrow, repay, and reborrow from time to time
between the Effective Date and the Maturity Date, upon notice by the
Borrower to the Administrative Agent given in accordance with this
Section 2, its Commitment Percentage of the Syndicated Loans as are
requested by the Borrower; provided that the sum of the outstanding
principal amount of the Syndicated Loans (including the Swing Line
Loans) and the Maximum Drawing Amount of outstanding Letters of Credit
shall not exceed the Total Commitment minus the aggregate amount of
Competitive Bid Loans outstanding at such time.
(b) Each request for a Loan or Letter of Credit hereunder
shall constitute a representation and warranty by the Borrower that the
conditions set forth in Section 10 and Section 11, as the case may be,
have been satisfied on the date of such request. Any unpaid
Reimbursement Obligation shall be a Base Rate Loan, as set forth in
Section 3.2(a).
23
17
SECTION 2.2. FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of the Banks a fee (the "Facility Fee") on
the Total Commitment equal to the Applicable Facility Rate multiplied by the
Total Commitment. The Facility Fee shall be payable for the period from and
after the Effective Date quarterly in arrears on the first day of each calendar
quarter for the immediately preceding calendar quarter with the first such
payment commencing on January 1, 2000 and with a final payment on the Maturity
Date (or on the date of termination in full of the Total Commitment, if
earlier). The Facility Fee shall be distributed pro rata among the Banks in
accordance with each Bank's Commitment Percentage.
SECTION 2.3. REDUCTION OF TOTAL COMMITMENT.
(a) The Borrower shall have the right at any time and from
time to time upon three (3) Business Days' prior written notice to the
Administrative Agent to reduce by $25,000,000 or a greater amount or
terminate entirely, the Total Commitment, whereupon each Bank's
Commitment shall be reduced pro rata in accordance with such Bank's
Commitment Percentage of the amount specified in such notice or, as the
case may be, terminated provided that at no time may (i) the Total
Commitment be reduced to an amount less than the sum of (A) the Maximum
Drawing Amount of all Letters of Credit, and (B) all Loans then
outstanding.
(b) The Total Commitment shall be automatically reduced as
required pursuant to Section Section 8.4(c) and (d), whereupon each
Bank's Commitment shall be reduced pro rata in accordance with such
Bank's Commitment Percentage of the amount terminated.
(c) No reduction or termination of the Total Commitment once
made may be revoked; the portion of the Total Commitment reduced or
terminated may not be reinstated; and amounts in respect of such
reduced or terminated portion may not be reborrowed.
(d) The Administrative Agent will notify the Banks promptly
after receiving any notice delivered by the Borrower pursuant to this
Section 2.3 and will distribute to each Bank a revised Schedule 1 to
this Agreement.
SECTION 2.4. THE SYNDICATED NOTES.
(a) The Syndicated Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A
hereto (each, a "Syndicated Note"), dated as of the Effective Date (or
such later date at which a Bank becomes a party hereto pursuant to
Section 20) and completed with appropriate insertions. One Syndicated
Note shall be payable to the order of each Bank in an amount equal to
its maximum Commitment, and shall represent the obligation of the
Borrower to pay such Bank such principal amount or, if less, the
outstanding principal amount of all Syndicated Loans made by such Bank,
plus interest accrued thereon, as set forth herein.
(b) The Borrower irrevocably authorizes each Bank to make, or
cause to be made, in connection with a Drawdown Date of any Syndicated
Loan and at the time of receipt of any payment of principal on its
Syndicated Note, an appropriate notation on
24
18
such Bank's records or on the schedule attached to such Bank's
Syndicated Note or a continuation of such schedule attached thereto
reflecting the making of such Loan, or the receipt of such payment (as
the case may be) and each Bank may, prior to any transfer of its
Syndicated Note endorse on the reverse side thereof the outstanding
principal amount of such Loans evidenced thereby. The outstanding
amount of the Loans set forth on such Bank's records shall be prima
facie evidence of the principal amount thereof owing and unpaid to such
Bank, but the failure to record, or any error in so recording, any such
amount shall not limit or otherwise affect the obligations of the
Borrower hereunder or under such Notes to make payments of principal of
or interest on any such Notes when due.
SECTION 2.5. INTEREST ON LOANS.
(a) The outstanding principal amount of the Syndicated Loans
shall bear interest at the rate per annum equal to (i) the Base Rate on
Base Rate Loans, (ii) the Applicable Eurodollar Rate on Eurodollar
Loans and (iii) the Applicable Swing Line Rate on Swing Line Loans.
(b) Interest shall be payable (i) monthly in arrears on the
first Business Day of each month, with the first such payment
commencing January 1, 2000, on Base Rate Loans, (ii) on the last day of
the applicable Interest Period, and if such Interest Period is longer
than three months, also on the last day of each three month period
following the commencement of such Interest Period, on Eurodollar
Loans, and (iii) on the Maturity Date for all Loans.
SECTION 2.6. REQUESTS FOR SYNDICATED LOANS.
(a) The Borrower shall give to the Administrative Agent
written notice in the form of Exhibit D hereto (or telephonic notice confirmed
in writing or a facsimile in the form of Exhibit D hereto) of each Syndicated
Loan requested hereunder (a "Syndicated Loan Request") not later than (a) 11:00
a.m. (New York time) on the proposed Drawdown Date of any Base Rate Loan, or (b)
11:00 a.m. (New York time) three (3) Eurodollar Business Days prior to the
proposed Drawdown Date of any Eurodollar Loan. Each such Syndicated Loan Request
shall specify (A) the principal amount of the Syndicated Loan requested, (B) the
proposed Drawdown Date of such Syndicated Loan, (C) whether such Syndicated Loan
requested is to be a Base Rate Loan or a Eurodollar Loan, and (D) the Interest
Period for such Syndicated Loan, if a Eurodollar Loan. Each Syndicated Loan
requested shall be in a minimum amount of $10,000,000. Each such Syndicated Loan
Request shall reflect the Maximum Drawing Amount of all Letters of Credit
outstanding and the amount of all Loans outstanding (including Competitive Bid
Loans and Swing Line Loans). Syndicated Loan Requests made hereunder shall be
irrevocable and binding on the Borrower, and shall obligate the Borrower to
accept the Syndicated Loan requested from the Banks on the proposed Drawdown
Date.
(b) Each of the representations and warranties made by the Borrower to
the Banks or the Administrative Agent in this Agreement or any other Loan
Document shall be true and correct in all material respects when made and shall,
for all purposes of this Agreement, be deemed to be repeated by the Borrower on
and as of the date of the submission of a Syndicated
25
19
Loan Request, Competitive Bid Quote Request, or Letter of Credit Application and
on and as of the Drawdown Date of any Loan or the date of issuance of any Letter
of Credit (except to the extent (i) of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents, (ii)
of changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse to the business, assets or financial
condition of the Borrower and its Subsidiaries as a whole, or (iii) that such
representations and warranties expressly relate only to an earlier date).
(c) The Administrative Agent shall promptly notify each Bank of each
Syndicated Loan Request received by the Administrative Agent (i) on the proposed
Drawdown Date of any Base Rate Loan, or (ii) three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Loan.
SECTION 2.7. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrower's option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrower may (i)
elect to convert any Base Rate Loan or a portion thereof to a
Eurodollar Loan, (ii) at the time of any Syndicated Loan Request,
specify that such requested Loan shall be a Eurodollar Loan, or (iii)
upon expiration of the applicable Interest Period, elect to maintain an
existing Eurodollar Loan as such, provided that the Borrower give
notice to the Administrative Agent pursuant to Section 2.7(b) hereof.
Upon determining any Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrower and the Banks, and
each such notice to the Borrower shall be considered prima facie
correct and binding, absent manifest error.
(b) Three (3) Eurodollar Business Days prior to the making of
any Eurodollar Loan or the conversion of any Base Rate Loan to a
Eurodollar Loan, or, in the case of an outstanding Eurodollar Loan, the
expiration date of the applicable Interest Period, the Borrower shall
give written, telex or facsimile notice (or telephonic notice promptly
confirmed in a writing or a facsimile) received by the Administrative
Agent not later than 11:00 a.m. (New York time) of its election
pursuant to Section 2.7(a). Each such notice delivered to the
Administrative Agent shall specify the aggregate principal amount of
the Syndicated Loans to be borrowed or maintained as or converted to
Eurodollar Loans and the requested duration of the Interest Period that
will be applicable to such Eurodollar Loan, and shall be irrevocable
and binding upon the Borrower. If the Borrower shall fail to give the
Administrative Agent notice of its election hereunder together with all
of the other information required by this Section 2.7(b) with respect
to any Syndicated Loan, whether at the end of an Interest Period or
otherwise, such Syndicated Loan shall be deemed a Base Rate Loan. The
Administrative Agent shall promptly notify the Banks in writing (or by
telephone confirmed in writing or by facsimile) of such election.
(c) Notwithstanding anything herein to the contrary, the
Borrower may not specify an Interest Period that would extend beyond
the Maturity Date.
26
20
(d) No conversion of Loans pursuant to this Section 2.7 may
result in Eurodollar Loans that are less than $5,000,000. In no event
shall the Borrower have more than eight (8) different Interest Periods
for borrowings of Eurodollar Loans outstanding at any time.
(e) Subject to the terms and conditions of Section 5.8 hereof,
if any Affected Bank demands compensation under Section 5.5(c) or (d)
with respect to any Eurodollar Loan, the Borrower may at any time, upon
at least three (3) Business Days' prior written notice to the
applicable Administrative Agent, elect to convert such Eurodollar Loan
into a Base Rate Loan (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other
Banks). Thereafter, and until such time as the Affected Bank notifies
the Administrative Agent that the circumstances giving rise to the
demand for compensation under Section 5.5(c) or (d) no longer exist,
all requests for Eurodollar Loans from such Affected Bank shall be
deemed to be requests for Base Rate Loans. Once the Affected Bank
notifies the Administrative Agent that such circumstances no longer
exist, the Borrower may elect that the principal amount of each such
Loan converted hereunder shall again bear interest as Eurodollar Loans
beginning on the first day of the next succeeding Interest Period
applicable to the related Eurodollar Loans of the other Banks.
SECTION 2.8. FUNDS FOR SYNDICATED LOANS. Not later than 1:00 p.m. (New
York time) on the proposed Drawdown Date of Syndicated Loans, each of the Banks
will make available to the Administrative Agent at its Head Office, in
immediately available funds, the amount of its Commitment Percentage of the
amount of the requested Loan. Upon receipt from each Bank of such amount, and
upon receipt of the documents required by Section 10 and Section 11 and the
satisfaction of the other conditions set forth therein, the Administrative Agent
will make available to the Borrower the aggregate amount of such Syndicated
Loans made available by the Banks. The failure or refusal of any Bank to make
available to the Administrative Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested
Syndicated Loan shall not relieve any other Bank from its several obligations
hereunder to make available to the Administrative Agent the amount of such
Bank's Commitment Percentage of the requested Loan.
SECTION 2.9. MATURITY OF THE LOANS AND REIMBURSEMENT OBLIGATIONS. The
Borrower promises to pay on the Maturity Date, and there shall become absolutely
due and payable on the Maturity Date, all of the Loans and unpaid Reimbursement
Obligations outstanding on such date, together with any and all accrued and
unpaid interest thereon and any fees and other amounts owing hereunder.
SECTION 2.10. OPTIONAL PREPAYMENTS OR REPAYMENTS OF LOANS. Subject to
the terms and conditions of Section 5.8, the Borrower shall have the right, at
its election, to repay or prepay the outstanding amount of the Loans, as a whole
or in part, at any time without penalty or premium. The Borrower shall give the
Administrative Agent no later than 11:00 a.m. (New York time) (a) on the
proposed date of prepayment or repayment of Base Rate Loans and (b) three (3)
Business Day prior to the proposed date of prepayment or repayment of all other
Loans, written notice (or telephonic notice confirmed in writing or by
facsimile) of any proposed prepayment or repayment pursuant to this Section
2.10, specifying the proposed date of prepayment or repayment of
27
21
Loans and the principal amount to be paid. Notwithstanding the foregoing, the
Borrower may not prepay any Competitive Bid Loans. The Administrative Agent
shall promptly notify each Bank by written notice (or telephonic notice
confirmed in writing or by facsimile) of such notice of payment.
SECTION 2.11. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Syndicated Loans,
MGT may, but shall not be required to, fund Base Rate Loans made in
accordance with the provisions of this Agreement ("Swing Line Loans").
The Swing Line Loans shall be evidenced by a promissory note of the
Borrower in substantially the form of Exhibit B hereto (the "Swing Line
Note") and, at the discretion of MGT may be in amounts less than
$10,000,000 provided that the outstanding amount of Swing Line Loans
advanced by MGT hereunder shall not exceed $10,000,000 at any time.
Each Bank shall remain severally and unconditionally liable to fund its
pro rata share (based upon each Bank's Commitment Percentage) of such
Swing Line Loans on each Swing Line Settlement Date and, in the event
MGT chooses not to fund all Base Rate Loans requested on any date, to
fund its Commitment Percentage of the Base Rate Loans requested,
subject to satisfaction of the provisions hereof relating to the making
of Base Rate Loans. Prior to each Swing Line Settlement, all payments
or repayments of the principal of, and interest on, Swing Line Loans
shall be credited to the account of MGT.
(b) The Banks shall effect Swing Line Settlements on (i) the
Business Day immediately following any day which MGT gives written
notice to the Administrative Agent to effect a Swing Line Settlement,
(ii) the Business Day immediately following the Administrative Agent's
becoming aware of the existence of any Default or Event of Default and
(iii) the Maturity Date (each such date, a "Swing Line Settlement
Date"). One (1) Business Day prior to each such Swing Line Settlement
Date, the Administrative Agent shall give telephonic notice to the
Banks of (A) the respective outstanding amount of Syndicated Loans made
by each Bank as at the close of business on the prior day, (B) the
amount that any Bank, as applicable (a "Swing Line Settling Bank"),
shall pay to effect a Swing Line Settlement (a "Swing Line Settlement
Amount") and (C) the portion (if any) of the aggregate Swing Line
Settlement Amount to be paid to each Bank. A statement of the
Administrative Agent submitted to the Banks with respect to any amounts
owing hereunder shall be prima facie evidence of the amount due and
owing. Each Swing Line Settling Bank shall, not later than 1:00 p.m.
(New York time) on each Swing Line Settlement Date, effect a wire
transfer of immediately available funds to the Administrative Agent at
its Head Office in the amount of such Bank's Swing Line Settlement
Amount. The Administrative Agent shall, as promptly as practicable
during normal business hours on each Swing Line Settlement Date, effect
a wire transfer of immediately available funds to each Bank of the
Swing Line Settlement Amount to be paid to such Bank. All funds
advanced by any Bank as a Swing Line Settling Bank pursuant to this
Section 2.11(b) shall for all purposes be treated as a Base Rate Loan
made by such Swing Line Settling Bank to the Borrower, and all funds
received by any Bank pursuant to this Section 2.11(b) shall for all
purposes be treated as repayment of amounts owed by the Borrower with
respect to Base Rate Loans made by such Bank.
28
22
(c) The Administrative Agent may (unless notified to the
contrary by any Swing Line Settling Bank by 12:00 noon (New York time)
one (1) Business Day prior to the Settlement Date) assume that each
Swing Line Settling Bank has made available (or will make available by
the time specified in Section 2.11(b)) to the Administrative Agent its
Swing Line Settlement Amount, and the Administrative Agent may (but
shall not be required to), in reliance upon such assumption, make
available to each applicable Bank its share (if any) of the aggregate
Swing Line Settlement Amount. If the Swing Line Settlement Amount of
such Swing Line Settling Bank is made available to the Administrative
Agent by such Swing Line Settling Bank on a date after such Swing Line
Settlement Date, such Swing Line Settling Bank shall pay the
Administrative Agent on demand an amount equal to the product of (i)
the average, computed for the period referred to in clause (iii) below,
of the weighted average annual interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during
each day included in such period times (ii) such Swing Line Settlement
Amount times (iii) a fraction, the numerator of which is the number of
days that elapse from and including such Swing Line Settlement Date to
but not including the date on which such Swing Line Settlement Amount
shall become immediately available to the Administrative Agent, and the
denominator of which is 365. Upon payment of such amount such Swing
Line Settling Bank shall be deemed to have delivered its Swing Line
Settlement Amount on the Swing Line Settlement Date and shall become
entitled to interest payable by the Borrower with respect to such Swing
Line Settling Bank's Swing Line Settlement Amount as if such share were
delivered on the Swing Line Settlement Date. If such Swing Line
Settlement Amount is not in fact made available to the Administrative
Agent by such Swing Line Settling Bank within three (3) Business Days
of such Swing Line Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower, with interest
thereon at the Base Rate.
(d) After any Swing Line Settlement Date, any payment by the
Borrower of Swing Line Loans hereunder shall be allocated among the
Banks, in amounts determined so as to provide that after such
application and the related Swing Line Settlement, the outstanding
amount of Syndicated Loans of each Bank equals, as nearly as
practicable, such Bank's Commitment Percentage of the aggregate amount
of Syndicated Loans.
SECTION 3. LETTERS OF CREDIT.
SECTION 3.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the receipt
of a Letter of Credit Application by an Issuing Bank, with a copy to
the Administrative Agent reflecting the Maximum Drawing Amount of all
Letters of Credit (including the requested Letter of Credit), such
Issuing Bank, on behalf of the Banks and in reliance upon the
representations and warranties of the Borrower contained herein and the
agreement of the Banks contained in Section 3.1(b) hereof, agrees to
issue Letters of Credit for the account of the Borrower (which may,
with such Issuing Bank's consent, incorporate automatic renewals for
periods of up to twelve (12) months), in such form as may be requested
from time to time by the Borrower and agreed to by the Issuing Bank;
29
23
provided, however, that, after giving effect to such request, the
aggregate Maximum Drawing Amount of all Letters of Credit issued at any
time shall not exceed the Total Commitment minus the aggregate
outstanding amount of the Loans and provided further, that no Letter of
Credit shall have an expiration date later than the earlier of (i)
eighteen (18) months after the date of issuance (which may incorporate
automatic renewals for periods of up to twelve (12) months), or (ii)
five (5) Business Days prior to the Maturity Date. The letters of
credit listed in Schedule 3.1(a) issued by Issuing Banks under the
Existing Credit Agreement shall be Letters of Credit under this
Agreement.
(b) Each Letter of Credit shall be denominated in Dollars.
Each Bank severally agrees that it shall be absolutely liable, without
regard to the occurrence of any Default or Event of Default, the
termination of the Total Commitment pursuant to Section 12.2, or any
other condition precedent whatsoever, to the extent of such Bank's
Commitment Percentage to reimburse the Issuing Bank on demand for the
amount of each draft paid by the Issuing Bank under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrower
pursuant to Section 3.2 (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank). Each Bank agrees
that its obligation to reimburse the Issuing Bank pursuant to this
Section 3.1(b) shall not be affected in any way by any circumstance
other than the gross negligence or willful misconduct of the Issuing
Bank.
(c) Each such reimbursement payment made by a Bank to the
Issuing Bank shall be treated as the purchase by such Bank of a
participating interest in the applicable Reimbursement Obligation under
Section 3.2 in an amount equal to such payment. Each Bank shall share
in accordance with its participating interest in any interest which
accrues pursuant to Section 3.2.
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to
induce the Issuing Banks to issue, extend and renew each Letter of Credit, the
Borrower hereby agrees to reimburse or pay to each Issuing Bank, with respect to
each Letter of Credit issued, extended or renewed by such Issuing Bank hereunder
as follows:
(a) if any draft presented under any Letter of Credit is
honored by such Issuing Bank or such Issuing Bank otherwise makes
payment with respect thereto, the sum of (i) the amount paid by such
Issuing Bank under or with respect to such Letter of Credit, and (ii)
the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by such Issuing Bank in connection with any payment
made by such Issuing Bank under, or with respect to, such Letter of
Credit, provided however, if the Borrower does not reimburse such
Issuing Bank on the Drawdown Date, such amount shall, provided that no
Event of Default under Section Section 12.1(g) or 12.1(h) has occurred,
become automatically a Syndicated Loan which is a Base Rate Loan
advanced hereunder in an amount equal to such sum; and
(b) upon the Maturity Date or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit shall be paid by the
30
24
Borrower to the Administrative Agent to be held as cash collateral for
the applicable Reimbursement Obligations.
SECTION 3.3. OBLIGATIONS ABSOLUTE. The Borrower's respective
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Issuing
Bank, any Bank or any beneficiary of a Letter of Credit, and the Borrower
expressly waives any such rights that it may have with respect thereto. The
Borrower further agrees with each Issuing Bank and the Banks that such Issuing
Bank and the Banks (i) shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.2 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged (unless due to the willful misconduct of
such Issuing Bank or any other Bank), or any dispute between or among the
Borrower and the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee, and (ii) shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit except to the extent of their own willful misconduct. The Borrower agrees
that any action taken or omitted by any Issuing Bank or any Bank in good faith
under or in connection with any Letter of Credit and the related drafts and
documents shall be binding upon the Borrower and shall not result in any
liability on the part of such Issuing Bank or any Bank (or their respective
affiliates) to the Borrower. Nothing herein shall constitute a waiver by the
Borrower of any of its rights against any beneficiary of a Letter of Credit.
SECTION 3.4. RELIANCE BY THE ISSUING BANKS. To the extent not
inconsistent with Section 3.3, each Issuing Bank shall be entitled to rely, and
shall be fully protected in relying, upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile, telex or teletype message, statement, order or other
document believed by such Issuing Bank in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by such Issuing Bank.
SECTION 3.5. NOTICE REGARDING LETTERS OF CREDIT. One (1) Business Day
prior to the issuance of any Letter of Credit or amendments, extensions or
terminations thereof, the applicable Issuing Bank shall notify the
Administrative Agent of the terms of such Letter of Credit, amendment, extension
or termination. On the day of any drawing under any Letter of Credit, such
Issuing Bank shall notify the Administrative Agent of such drawing under any
Letter of Credit.
SECTION 3.6. LETTER OF CREDIT FEE. The Borrower shall pay a fee (the
"Letter of Credit Fee") equal to the Applicable L/C Rate on the Maximum Drawing
Amount of the Letters of Credit to the Administrative Agent for the account of
the Banks, to be shared pro rata by the Banks in accordance with their
respective Commitment Percentages. The Letter of Credit Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the quarter
just ended, with the first such payment commencing January 1, 2000, and on the
Maturity Date. In addition,
31
25
an issuing fee (the "Issuance Fee") with respect to each Letter of Credit to be
agreed upon annually between the Borrower and each Issuing Bank shall be payable
to such Issuing Bank for its account.
SECTION 4. COMPETITIVE BID LOANS.
SECTION 4.1. THE COMPETITIVE BID OPTION. In addition to the Syndicated
Loans made pursuant to Section 2 hereof, the Borrower may request Competitive
Bid Loans pursuant to the terms of this Section 4. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 4.
Notwithstanding any other provision herein to the contrary, at no time shall the
aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the Total Commitment minus the sum of (a) the aggregate outstanding
principal amount of Syndicated Loans (including the Swing Loans), plus (b) the
Maximum Drawing Amount of Letters of Credit, outstanding at such time.
SECTION 4.2. COMPETITIVE BID LOAN ACCOUNTS: COMPETITIVE BID NOTES.
(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at
the applicable rate accrued thereon, shall be evidenced by this
Agreement and by individual loan accounts (the "Competitive Bid Loan
Accounts" and individually, a "Competitive Bid Loan Account")
maintained by the Administrative Agent on its books for each of the
Banks, it being the intention of the parties hereto that, except as
provided for in paragraph (b) of this Section 4.2, the Borrower's
obligations with respect to Competitive Bid Loans are to be evidenced
only as stated herein and not by separate promissory notes.
(b) Any Bank may at any time, and from time to time, request
that any Competitive Bid Loans outstanding to such Bank be evidenced by
a promissory note of the Borrower in substantially the form of Exhibit
C hereto (each, a "Competitive Bid Note"), dated as of the Effective
Date and completed with appropriate insertions. One Competitive Bid
Note shall be payable to the order of each Bank in an amount equal to
the Total Commitment, and representing the obligation of the Borrower
to pay such Bank such principal amount or, if less, the outstanding
principal amount of any and all Competitive Bid Loans made by such
Bank, plus interest at the applicable Competitive Bid Rate or
Competitive Bid Margin accrued thereon, as set forth herein. Upon
execution and delivery by the Borrower of a Competitive Bid Note, the
Borrower's obligation to repay any and all Competitive Bid Loans made
to it by such Bank and all interest thereon shall thereafter be
evidenced by such Competitive Bid Note.
(c) The Borrower irrevocably authorizes (i) each Bank to make
or cause to be made, in connection with a Drawdown Date of any
Competitive Bid Loan or at the time of receipt of any payment of
principal on such Bank's Competitive Bid Note in the case of a
Competitive Bid Note, and (ii) the Administrative Agent to make or
cause to be made, in connection with a Drawdown Date of any Competitive
Bid Loan or at the time of receipt of any payment of principal on such
Bank's Competitive Bid Loan Account in the case of a Competitive Bid
Loan Account, an appropriate notation on such Bank's
32
26
records or on the schedule attached to such Bank's Competitive Bid Note
or a continuation of such schedule attached thereto, or the
Administrative Agent's records, as applicable, reflecting the making of
the Competitive Bid Loan or the receipt of such payment (as the case
may be) and such Bank may, prior to any transfer of a Competitive Bid
Note, endorse on the reverse side thereof the outstanding principal
amount of Competitive Bid Loans evidenced thereby. The outstanding
amount of the Competitive Bid Loans set forth on such Bank's record or
the Administrative Agent's records, as applicable, shall be prima facie
evidence of the principal amount thereof owing and unpaid to such Bank,
but the failure to record, or any error in so recording, any such
amount shall not limit or otherwise affect the obligations of the
Borrower hereunder to make payments of principal of or interest on any
Competitive Bid Loan when due.
SECTION 4.3. COMPETITIVE BID QUOTE REQUEST; INVITATION FOR COMPETITIVE
BID QUOTES.
(a) When the Borrower wishes to request offers to make
Competitive Bid Loans under this Section 4, it shall transmit to the
Administrative Agent by telex or facsimile a Competitive Bid Quote
Request substantially in the form of Exhibit H hereto (a "Competitive
Bid Quote Request") so as to be received no later than 1:00 p.m. (New
York time) (x) five (5) Eurodollar Business Days prior to the requested
Drawdown Date in the case of a LIBOR Competitive Bid Loan (a "LIBOR
Competitive Bid Loan") or (y) one (1) Business Day prior to the
requested Drawdown Date in the case of an Absolute Competitive Bid Loan
(an "Absolute Competitive Bid Loan"), specifying:
(i) the requested Drawdown Date (which must be a
Eurodollar Business Day in the case of a LIBOR Competitive Bid
Loan or a Business Day in the case of an Absolute Competitive
Bid Loan);
(ii) the aggregate amount of such Competitive Bid
Loans, which shall be $10,000,000 or larger multiple of
$1,000,000;
(iii) the duration of the Interest Period(s)
applicable thereto, subject to the provisions of the
definition of Interest Period; and
(iv) whether the Competitive Bid Quotes requested are
for LIBOR Competitive Bid Loans or Absolute Competitive Bid
Loans.
The Borrower may request offers to make Competitive Bid Loans for more
than one Interest Period in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until the Borrower has
notified the Administrative Agent of its acceptance or non-acceptance
of the Competitive Bid Quotes relating to any outstanding Competitive
Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request,
the Administrative Agent shall send to the Banks by telecopy or
facsimile transmission an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit I hereto, which shall constitute
an invitation by the Borrower to each Bank to submit Competitive Bid
Quotes in accordance with this Section 4.
33
27
SECTION 4.4. ALTERNATIVE MANNER OF PROCEDURE. If, after receipt by the
Administrative Agent and each of the Banks of a Competitive Bid Quote Request
from the Borrower in accordance with Section 4.3, the Administrative Agent or
any Bank shall be unable to complete any procedure of the auction process
described in Section Section 4.5 through 4.6 (inclusive) due to the inability of
such Person to transmit or receive communications through the means specified
therein, such Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such Person shall rely on
telephone transmission or receipt, any communication made by telephone shall, as
soon as possible thereafter, be followed by written confirmation thereof.
SECTION 4.5. SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(a) Each Bank may, but shall be under no obligation to, submit
a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the requirements of this
Section 4.5 and must be submitted to the Administrative Agent by telex
or facsimile transmission at its offices as specified in or pursuant to
Section 22 not later than (x) 2:00 p.m. (New York time) on the fourth
Eurodollar Business Day prior to the proposed Drawdown Date, in the
case of a LIBOR Competitive Bid Loan or (y) 10:00 a.m. (New York time)
on the proposed Drawdown Date, in the case of an Absolute Competitive
Bid Loan, provided that Competitive Bid Quotes may be submitted by the
Administrative Agent in its capacity as a Bank only if it submits its
Competitive Bid Quote to the Borrower not later than (x) one hour prior
to the deadline for the other Banks, in the case of a LIBOR Competitive
Bid Loan or (y) 15 minutes prior to the deadline for the other Banks,
in the case of an Absolute Competitive Bid Loan. Subject to the
provisions of Section Section 10 and 11 hereof, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the
form of Exhibit J hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan
for which each proposal is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the aggregate principal amount
of Competitive Bid Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which offers
being made by such quoting Bank may be accepted;
(iii) the Interest Period(s) for which Competitive
Bid Quotes are being submitted;
(iv) in the case of a LIBOR Competitive Bid Loan, the
margin above or below the applicable LIBOR Rate (the
"Competitive Bid Margin") offered for
34
28
each such Competitive Bid Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or
subtracted from such LIBOR Rate;
(v) in the case of an Absolute Competitive Bid Loan,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Competitive Bid Rate") offered for
each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Bank.
A Competitive Bid Quote may include up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bid Quotes; or
(iv) arrives after the time set forth in Section
4.5(a) hereof.
SECTION 4.6. NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Competitive Bid Quote
submitted by a Bank that is in accordance with Section 4.5 and (y) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request, (B) the respective principal amounts and
Competitive Bid Margins or Competitive Bid Rates, as the case may be, so
offered, and the identity of the respective Banks submitting such offers, and
(C) if applicable, limitations on the aggregate principal amount of Competitive
Bid Loans for which offers in any single Competitive Bid Quote may be accepted.
SECTION 4.7. ACCEPTANCE AND NOTICE BY BORROWER AND ADMINISTRATIVE
AGENT. Not later than 11:00 a.m. (New York time) on (x) the third Eurodollar
Business Day prior to the proposed Drawdown Date, in the case of a LIBOR
Competitive Bid Loan or (y) the proposed Drawdown Date, in the case of an
Absolute Competitive Bid Loan, the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of each Competitive Bid Quote in
substantially the form of Exhibit K hereto. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:
35
29
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case
may be, and
(iii) the Borrower may not accept any offer that is described
in subsection 4.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
The Administrative Agent shall promptly notify each Bank which submitted a
Competitive Bid Quote of the Borrower's acceptance or non-acceptance thereof. At
the request of any Bank which submitted a Competitive Bid Quote and with the
consent of the Borrower, the Administrative Agent will promptly notify all Banks
which submitted Competitive Bid Quotes of (a) the aggregate principal amount of,
and (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the
accepted Competitive Bid Loans for each requested Interest Period.
SECTION 4.8. ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Banks with the same Competitive Bid Margin or Competitive Bid Rate,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not less than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Administrative Agent of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
SECTION 4.9. FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not
terminated in full and if, on such Drawdown Date, the applicable conditions of
Section Section 10 and 11 hereof are satisfied, the Bank or Banks whose offers
the Borrower has accepted will fund each Competitive Bid Loan so accepted. Such
Bank or Banks will make such Competitive Bid Loans by crediting the
Administrative Agent for further credit to the Borrower's specified account with
the Administrative Agent, in immediately available funds not later than 1:00
p.m. (New York time) on such Drawdown Date.
SECTION 4.10. FUNDING LOSSES. If, after acceptance of any Competitive
Bid Quote pursuant to Section 4, the Borrower (i) fails to borrow any
Competitive Bid Loan so accepted on the date specified therefor, or (ii) repays
the outstanding amount of the Competitive Bid Loan prior to the last day of the
Interest Period relating thereto, the Borrower shall indemnify the Bank making
such Competitive Bid Quote or funding such Competitive Bid Loan against any loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such unborrowed Loans,
including, without limitation compensation as provided in Section 5.8.
SECTION 4.11. REPAYMENT OF COMPETITIVE BID LOANS; INTEREST. The
principal of each Competitive Bid Loan shall become absolutely due and payable
by the Borrower on the last day
36
30
of the Interest Period relating thereto, and the Borrower hereby absolutely and
unconditionally promises to pay to the Administrative Agent for the account of
the relevant Banks at or before 1:00 p.m. (New York time) on the last day of the
Interest Periods relating thereto the principal amount of all such Competitive
Bid Loans, plus interest thereon at the applicable rate. The Competitive Bid
Loans shall bear interest at the rate per annum specified in the applicable
Competitive Bid Quotes. Interest on the Competitive Bid Loans shall be payable
(a) on the last day of the applicable Interest Periods, and if any such Interest
Period is longer than three months, also on the last day of the third month
following the commencement of such Interest Period, and (b) on the Maturity Date
for all Loans. Subject to the terms of this Agreement, the Borrower may make
Competitive Bid Quote Requests with respect to new borrowings of any amounts so
repaid prior to the Maturity Date.
SECTION 5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT.
SECTION 5.1. PAYMENTS.
(a) All payments of principal, interest, Reimbursement
Obligations, fees (other than the Issuance Fee) and any other amounts
due hereunder or under any of the other Loan Documents shall be made to
the Administrative Agent at its Head Office in immediately available
funds by 11:00 a.m. (New York time) on any due date. Subject to the
provisions of Section 29, if a payment is received by the
Administrative Agent at or before 1:00 p.m. (New York time) on any
Business Day, the Administrative Agent shall on the same Business Day
transfer in immediately available funds, as applicable, to (1) each of
the Banks, their pro rata portion of such payment in accordance with
their respective Commitment Percentages, in the case of payments with
respect to Syndicated Loans and Letters of Credit, (2) MGT in the case
of payments with respect to Swing Line Loans, and (3) the appropriate
Bank(s), in the case of payments with respect to Competitive Bid Loans.
If such payment is received by the Administrative Agent after 1:00 p.m.
(New York time) on any Business Day, such transfer shall be made by the
Administrative Agent to the applicable Bank(s) on the next Business
Day. In the event that the Administrative Agent fails to make such
transfer to any Bank as set forth above, the Administrative Agent shall
pay to such Bank on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by such Bank for funds acquired
by such Bank during each day included in such period, times (ii) the
amount (A) equal to such Bank's Commitment Percentage of such payment
in the case of payments under clause (1) above, or (B) of such payment
to which such Bank is entitled in the case of payments with respect to
Competitive Bid Loans and Swing Line Loans, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
the date of payment to and including the date on which the amount due
to such Bank shall become immediately available to such Bank, and the
denominator of which is 365. A statement of such Bank submitted to the
applicable Administrative Agent with respect to any amounts owing under
this paragraph shall be prima facie evidence of the amount due and
owing to such Bank by the Administrative Agent.
37
31
(b) Each Bank that is not incorporated or organized under the
laws of the United States of America or a state thereof or the District
of Columbia (a "Non-U.S. Bank") agrees that, prior to the first date on
which any payment is due to it hereunder, it will deliver to the
Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, certifying in each case
that such Non-U.S. Bank is entitled to receive payments under this
Agreement and the Notes payable to it, without deduction or withholding
of any United States federal income taxes. Each Non-U.S. Bank that so
delivers a Form W-8BEN or W-8ECI pursuant to the preceding sentence
further undertakes to deliver to each of the Borrower and the
Administrative Agent two further copies of Form W-8BEN or W-8ECI or
successor applicable form, or other manner of certification, as the
case may be, on or before the date that any such letter or form expires
or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower, and such extensions or renewals thereof as may reasonably be
requested by the Borrower, certifying in the case of a Form W-8BEN or
W-8ECI that such Non-U.S. Bank is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless in any such case an event
(including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable
or which would prevent such Non-U.S. Bank from duly completing and
delivering any such form with respect to it and such Non-U.S. Bank
advises the Borrower that it is not capable of receiving payments
without any deduction or withholding of United States federal income
tax.
(c) The Borrower shall not be required to pay any additional
amounts to any Non-U.S. Bank in respect of United States Federal
withholding tax pursuant to Section 17 to the extent that (i) the
obligation to withhold amounts with respect to United States Federal
withholding tax existed on the date such Non-U.S. Bank became a party
to this Agreement or, with respect to payments to a different lending
office designated by the Non-U.S. Bank as its applicable lending office
(a "New Lending Office"), the date such Non-U.S. Bank designated such
New Lending Office with respect to a Loan; provided, however, that this
clause (i) shall not apply to any transferee or New Lending Office as a
result of an assignment, transfer or designation made at the request of
the Borrower; and provided further, however, that this clause (i) shall
not apply to the extent the indemnity payment or additional amounts any
transferee, or Bank through a New Lending Office, would be entitled to
receive without regard to this clause (i) do not exceed the indemnity
payment or additional amounts that the Person making the assignment or
transfer to such transferee, or Bank making the designation of such New
Lending Office, would have been entitled to receive in the absence of
such assignment, transfer or designation; or (ii) the obligation to pay
such additional amounts would not have arisen but for a failure by such
Non-U.S. Bank to comply with the provisions of paragraph (b) above.
(d) Notwithstanding the foregoing, each Bank agrees to use
reasonable efforts (consistent with legal and regulatory restrictions)
to change its lending office to avoid or to minimize any amounts
otherwise payable under Section 17 in each case solely if such change
38
32
can be made in a manner so that such Bank, in its sole determination,
suffers no legal, economic or regulatory disadvantage.
SECTION 5.2. MANDATORY REPAYMENTS OF THE LOANS.
(a) If at any time the sum of the outstanding principal amount
of the Loans plus the Maximum Drawing Amount of all outstanding Letters
of Credit exceeds the Total Commitment, whether by reduction of the
Total Commitment or otherwise, then the Borrower shall immediately pay
the amount of such excess to the Administrative Agent, (i) for
application to the Loans, first to Syndicated Loans, then to
Competitive Bid Loans, subject to Section 5.8, or (ii) if no Loans
shall be outstanding, to be held by the Administrative Agent for the
benefit of the Banks as collateral security for such excess Maximum
Drawing Amount and the Borrower hereby grants a security interest in
such amount to the Administrative Agent for the benefit of the Banks;
provided, however, that if the amount of cash collateral held by the
Administrative Agent pursuant to this Section 5.2(a) exceeds the
Maximum Drawing Amount required to be collateralized from time to time,
the Administrative Agent shall return such excess to the Borrower.
(b) Payments required pursuant to Section Section 8.4(c) and
(d) shall be applied in the manner set forth in subsection (a) above.
SECTION 5.3. COMPUTATIONS. Except as otherwise expressly provided
herein, all computations of interest, Facility Fees, Letter of Credit Fees or
other fees shall be based on a 360-day year and paid for the actual number of
days elapsed, except that computations based on the Administrative Agent's
"prime rate" shall be based on a 365 or 366, as applicable, day year and paid
for the actual number of days elapsed. Whenever a payment hereunder or under any
of the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension; provided that for any Interest
Period for any Eurodollar Loan if such next succeeding Business Day falls in the
next succeeding calendar month or after the Maturity Date, it shall be deemed to
end on the next preceding Business Day.
SECTION 5.4. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
Notwithstanding any other provision of this Agreement (other than Section 5.10),
if (a) the introduction of, any change in, or any change in the interpretation
of, any law or regulation applicable to any Bank or the Administrative Agent
shall make it unlawful, or any central bank or other governmental authority
having jurisdiction thereof shall assert that it is unlawful, for any Bank or
the Administrative Agent to perform its obligations in respect of any Eurodollar
Loans, or (b) if any Bank or the Administrative Agent, as applicable, shall
reasonably determine with respect to Eurodollar Loans that (i) by reason of
circumstances affecting any Eurodollar interbank market, adequate and reasonable
methods do not exist for ascertaining the Eurodollar Rate which would otherwise
be applicable during any Interest Period, or (ii) deposits of Dollars in the
relevant amount for the relevant Interest Period are not available to such Bank
or the Administrative Agent in any Eurodollar interbank market, or (iii) the
Eurodollar Rate does not or will not accurately reflect the cost to the Bank or
the Administrative Agent of obtaining or maintaining the Eurodollar Loans during
any Interest Period, then such Bank or the Administrative Agent shall promptly
give telephonic, telex or cable notice of such determination to the Borrower
39
33
(which notice shall be conclusive and binding upon the Borrower). Upon such
notification by the Bank or the Administrative Agent, the obligation of the
Banks and the Administrative Agent to make Eurodollar Loans shall be suspended
until the Banks or the Administrative Agent, as the case may be, determine that
such circumstances no longer exist, and to the extent permitted by law the
outstanding Eurodollar Loans shall continue to bear interest at the applicable
rate based on the Eurodollar Rate until the end of the applicable Interest
Period, and thereafter shall be deemed converted to Base Rate Loans in equal
principal amounts to such former Eurodollar Loans.
SECTION 5.5. ADDITIONAL COSTS, ETC. If any present or future applicable
law (which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank by any central bank or other fiscal, monetary or
other authority, whether or not having the force of law) shall:
(a) subject such Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment or the
Loans (other than taxes based upon or measured by the income or profits
of such Bank imposed by the jurisdiction of its incorporation or
organization, or the location of its lending office); or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits of such Bank imposed by the
jurisdiction of its incorporation or organization, or the location of
its lending office) of payments to such Bank of the principal or of the
interest on any Loans or any other amounts payable to such Bank under
this Agreement or the other Loan Documents; or
(c) except as provided in Section 5.6 or as otherwise
reflected in the Base Rate, the Eurodollar Rate, or the applicable rate
for Competitive Bid Loans, impose or increase or render applicable
(other than to the extent specifically provided for elsewhere in this
Agreement) any special deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force
of law) against assets held by, or deposits in or for the account of,
or loans by, or commitments of, an office of any Bank with respect to
this Agreement, the other Loan Documents, such Bank's Commitment or the
Loans; or
(d) impose on such Bank any other conditions or requirements
with respect to this Agreement, the other Loan Documents, the Loans,
such Bank's Commitment or any class of loans or commitments of which
any of the Loans or such Bank's Commitment forms a part, and the result
of any of the foregoing is:
(i) to increase the cost to such Bank of making,
funding, issuing, renewing, extending or maintaining the Loans
or such Bank's Commitment or issuing or participating in
Letters of Credit;
40
34
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank hereunder on account of such
Bank's Commitment, the Loans or the Reimbursement Obligations;
or
(iii) to require such Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount
of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon demand
made by such Bank at any time and from time to time as often as the
occasion therefore may arise (which demand shall be accompanied by a
statement setting forth the basis of such demand which shall be
conclusive absent manifest error), pay such reasonable additional
amounts as will be sufficient to compensate such Bank for such
additional costs, reduction, payment or foregone interest or other sum.
SECTION 5.6. CAPITAL ADEQUACY. If any Bank shall have determined that,
after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or any corporation controlling such
Bank) as a consequence of such Bank's obligations hereunder to a level below
that which such Bank (or any corporation controlling such Bank) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank, the Borrower shall pay to such Bank such additional amount or
amounts as will, in such Bank's reasonable determination, fairly compensate such
Bank (or any corporation controlling such Bank) for such reduction. Each Bank
shall allocate such cost increases among its customers in good faith and on an
equitable basis.
SECTION 5.7. CERTIFICATE. A certificate setting forth the additional
amounts payable pursuant to Section 5.5 or Section 5.6 and a reasonable
explanation of such amounts which are due, submitted by any Bank to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing.
SECTION 5.8. EURODOLLAR AND COMPETITIVE BID INDEMNITY. The Borrower
agrees to indemnify the Banks and the Administrative Agent and to hold them
harmless from and against any reasonable loss, cost or expense that any such
Bank and the Administrative Agent may sustain or incur as a consequence of (a)
the default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Loans or Competitive Bid Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by any Bank or the Administrative Agent to lenders of funds obtained by
it in order to maintain its Eurodollar Loans or Competitive Bid Loans, (b) the
default by the Borrower in making a borrowing of a
41
35
Eurodollar Loan or Competitive Bid Loan or conversion of a Eurodollar Loan or a
prepayment of a Eurodollar or Competitive Bid Loan other than pursuant to
Section 2.5(b) after the Borrower has given (or is deemed to have given) a
Syndicated Loan Request, a notice pursuant to Section 2.7 or a Notice of
Acceptance/Rejection of Competitive Bid Quote(s), or a notice pursuant to
Section 2.10, and (c) the making of any payment of a Eurodollar Loan or
Competitive Bid Loan, or the making of any conversion of any Eurodollar Loan to
a Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto. Such loss, cost, or reasonable expense shall
include an amount equal to the excess, if any, as reasonably determined by each
Bank of (i) its cost of obtaining the funds for (A) the Eurodollar Loan being
paid, prepaid, converted, not converted, reallocated, or not borrowed, as the
case may be (based on the Eurodollar Rate), or (B) the Competitive Bid Loan
being paid, prepaid, or not borrowed, as the case may be (based on the
applicable interest rate) for the period from the date of such payment,
prepayment, conversion, or failure to borrow or convert, as the case may be, to
the last day of the Interest Period for such Loan (or, in the case of a failure
to borrow, the Interest Period for the Loan which would have commenced on the
date of such failure to borrow) over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in reemploying the
funds so paid, prepaid, converted, or not borrowed, converted, or prepaid for
such period or Interest Period, as the case may be, which determinations shall
be conclusive absent manifest error.
SECTION 5.9. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
the Base Rate plus 2%, until such amount shall be paid in full (after as well as
before judgment).
SECTION 5.10. INTEREST LIMITATION. Notwithstanding any other term of
this Agreement or the Notes, any other Loan Document or any other document
referred to herein or therein, the maximum amount of interest which may be
charged to or collected from any Person liable hereunder or under the Notes by
any Bank shall be absolutely limited to, and shall in no event exceed, the
maximum amount of interest which could lawfully be charged or collected by such
Bank under applicable laws (including, to the extent applicable, the provisions
of Section 5197 of the Revised Statutes of the United States of America, as
amended, and 12 U.S.C. Section 85, as amended).
SECTION 5.11. REASONABLE EFFORTS TO MITIGATE. Each Bank agrees that as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would cause it to be affected under Section
Section 5.4, 5.5 or 5.6, such Bank will give notice thereof to the Borrower,
with a copy to the Administrative Agent and, to the extent so requested by the
Borrower and not inconsistent with such Bank's internal policies, such Bank
shall use reasonable efforts and take such actions as are reasonably appropriate
if as a result thereof the additional moneys which would otherwise be required
to be paid to such Bank pursuant to such sections would be materially reduced,
or the illegality or other adverse circumstances which would otherwise require a
conversion of such Loans or result in the inability to make such Loans pursuant
to such sections would cease to exist, and in each case if, as determined by
such Bank in its sole discretion, the taking of such actions would not adversely
affect such Loans or such Bank or otherwise be disadvantageous to such Bank.
42
36
SECTION 5.12. REPLACEMENT OF BANKS. If any Bank (an "Affected Bank")
(i) makes demand upon the Borrower for (or if the Borrower is otherwise required
to pay) amounts pursuant to Section Section 5.5 or 5.6, (ii) is unable to make
or maintain Eurodollar Loans as a result of a condition described in Section 5.4
or (iii) defaults in its obligation to make Loans or to participate in Letters
of Credit in accordance with the terms of this Agreement (such Bank being
referred to as a "Defaulting Bank"), the Borrower may, within 90 days of receipt
of such demand, notice (or the occurrence of such other event causing the
Borrower to be required to pay such compensation or causing Section 5.4 to be
applicable), or default, as the case may be, by notice (a "Replacement Notice")
in writing to the Administrative Agent and such Affected Bank (A) request the
Affected Bank to cooperate with the Borrower in obtaining a replacement bank
satisfactory to the Administrative Agent and the Borrower (the "Replacement
Bank") as provided herein, but none of such Banks shall be under an obligation
to find a Replacement Bank; (B) request the non-Affected Banks to acquire and
assume all of the Affected Bank's Loans and Commitment, and to participate in
Letters of Credit as provided herein, but none of such Banks shall be under an
obligation to do so; or (C) designate a Replacement Bank reasonably satisfactory
to the Administrative Agent. If any satisfactory Replacement Bank shall be
obtained, and/or any of the non-Affected Banks shall agree to acquire and assume
all of the Affected Bank's Loans and Commitment, and to participate in Letters
of Credit then such Affected Bank shall, so long as no Event of Default shall
have occurred and be continuing, assign, in accordance with Section 20, all of
its Commitment, Loans, Notes and other rights and obligations under this
Agreement and all other Loan Documents to such Replacement Bank or non-Affected
Banks, as the case may be, in exchange for payment of the principal amount so
assigned and all interest and fees accrued on the amount so assigned, plus all
other Obligations then due and payable to the Affected Bank; provided, however,
that (x) such assignment shall be without recourse, representation or warranty
and shall be on terms and conditions reasonably satisfactory to such Affected
Bank and such Replacement Bank and/or non-Affected Banks, as the case may be,
and (y) prior to any such assignment, the Borrower shall have paid to such
Affected Bank all amounts properly demanded and unreimbursed under Section
Section 5.5, 5.6 and 5.8. Upon the effective date of such assignment, the
Borrower shall issue replacement Notes to such Replacement Bank and/or
non-Affected Banks, as the case may be, and such Replacement Bank shall become a
"Bank" for all purposes under this Agreement and the other Loan Documents.
SECTION 5.13. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative
Agent may (unless earlier notified to the contrary by any Bank by 12:00 noon
(New York time) one (1) Business Day prior to any Drawdown Date) assume that
each Bank has made available (or will before the end of such Business Day make
available) to the Administrative Agent the amount of such Bank's Commitment
Percentage with respect to the Loans (or, in the case of Competitive Bid Loans,
the amount of such Bank's accepted offers of such Loans, if any) to be made on
such Drawdown Date, and the Administrative Agent may (but shall not be required
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes such amount available to the
Administrative Agent on a date after such Drawdown Date, such Bank shall pay the
Administrative Agent on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below, of the
weighted average annual interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in
such period times (ii) the amount equal to such Bank's Commitment Percentage of
such Syndicated Loan (or, in the case of Competitive
43
37
Bid Loans and Swing Line Loans, the amount of such Bank's accepted offer of such
Competitive Bid Loans, if any, and portion of such Swing Line Loans) times (iii)
a fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to but not including the date on which the amount
equal to such Bank's Commitment Percentage of such Loans, or the amount of such
Bank's accepted offers of such Competitive Bid Loans, if any, and portion of
Swing Line Loans, shall become immediately available to the Administrative
Agent, and the denominator of which is 365. A statement of the Administrative
Agent submitted to such Bank with respect to any amounts owing under this
paragraph shall be prima facie evidence of the amount due and owing to the
Administrative Agent by such Bank. If such amount is not in fact made available
to the Administrative Agent by such Bank within three (3) Business Days of such
Drawdown Date, the Administrative Agent shall be entitled to recover such amount
from such Borrower, with interest thereon at the applicable rate per annum.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Borrower (and each of
the Guarantors, where applicable) represents and warrants to the Banks that:
SECTION 6.1. CORPORATE AUTHORITY.
(a) INCORPORATION; GOOD STANDING. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of formation,
(ii) has all requisite corporate power to own its property and conduct
its business as now conducted and as presently contemplated, and (iii)
is in good standing and is duly authorized to do business in each
jurisdiction in which its property or business as presently conducted
or contemplated makes such qualification necessary, except where a
failure to be so qualified would not have a material adverse effect on
the business, assets or financial condition of the Borrower and its
Subsidiaries as a whole.
(b) AUTHORIZATION. The execution, delivery and performance of
its Loan Documents and the transactions contemplated hereby and thereby
(i) are within the corporate authority of the Borrower and each of the
Guarantors, (ii) have been duly authorized by all necessary corporate
proceedings on the part of each of the Borrower and the Guarantors,
(iii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which any of the
Borrower or the Guarantors or any of their Subsidiaries is subject or
any judgment, order, writ, injunction, license or permit applicable to
the Borrower, any of the Guarantors or any of their Subsidiaries so as
to materially adversely affect the assets, business or any activity of
the Borrower, the Guarantors and their Subsidiaries as a whole, and
(iv) do not conflict with any provision of the corporate charter or
bylaws of the Borrower, the Guarantors or any Subsidiary or any
agreement or other instrument binding upon the Borrower, the Guarantors
or any of their Subsidiaries.
(c) ENFORCEABILITY. The execution, delivery and performance of
the Loan Documents by the Borrower and the Guarantors will result in
valid and legally binding obligations of the Borrower and the
Guarantors enforceable against them in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to
44
38
or affecting generally the enforcement of creditors' rights and except
to the extent that availability of the remedy of specific performance
or injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought.
SECTION 6.2. GOVERNMENTAL AND OTHER APPROVALS. The execution, delivery
and performance of the Loan Documents by the Borrower and the Guarantors and the
consummation by the Borrower and the Guarantors of the transactions contemplated
hereby and thereby do not require any approval or consent of, or filing with,
any governmental agency or authority or other third party other than those
already obtained and those required after the date hereof in connection with the
Borrower's and its Subsidiaries' performance of their covenants contained in
Section Section 7, 8 and 9 hereof.
SECTION 6.3. TITLE TO PROPERTIES; LEASES. The Borrower and its
Subsidiaries own all of the assets reflected in the consolidated balance sheet
as at the Interim Balance Sheet Date or acquired since that date (except
property and assets operated under capital leases or sold or otherwise disposed
of in the ordinary course of business since that date), subject to no mortgages,
Capitalized Leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
SECTION 6.4. FINANCIAL STATEMENTS; SOLVENCY.
(a) There have been furnished to the Banks consolidated
balance sheets of the Borrower and its Subsidiaries dated the Balance
Sheet Date and consolidated statements of operations for the fiscal
periods then ended, certified by the Accountants. In addition, there
have been furnished to the Banks consolidated balance sheets of the
Borrower and its Subsidiaries dated the Interim Balance Sheet Date and
the related consolidated statements of operation for the fiscal quarter
ending on the Interim Balance Sheet Date. All said balance sheets and
statements of operations have been prepared in accordance with GAAP
(but, in the case of any of such financial statements which are
unaudited, only to the extent GAAP is applicable to interim unaudited
reports), fairly present the financial condition of the Borrower and
its Subsidiaries on a consolidated basis as at the close of business on
the dates thereof and the results of operations for the periods then
ended, subject, in the case of unaudited interim financial statements,
to changes resulting from audit and normal year-end adjustments and to
the absence of complete footnotes. There are no contingent liabilities
of the Borrower and its Subsidiaries involving material amounts, known
to the officers of the Borrower which have not been disclosed in said
balance sheets and the related notes thereto or otherwise in writing to
the Banks.
(b) The Borrower and its Subsidiaries on a consolidated basis
(both before and after giving effect to the transactions contemplated
by this Agreement) are solvent (i.e., they have assets having a fair
value in excess of the amount required to pay their probable
liabilities on their existing debts as they become absolute and
matured) and have, and expect to have, the ability to pay their debts
from time to time incurred in connection therewith as such debts
mature.
SECTION 6.5. NO MATERIAL CHANGES, ETC. Since the Interim Balance Sheet
Date, there have occurred no material adverse changes in the consolidated
financial condition, business, assets or
45
39
liabilities (contingent or otherwise) of the Borrower and its Subsidiaries,
taken together, as shown on or reflected in the consolidated balance sheets of
the Borrower and its Subsidiaries as at the Interim Balance Sheet Date, or the
consolidated statements of income for the period then ended other than changes
in the ordinary course of business which have not had any material adverse
effect either individually or in the aggregate on the financial condition,
business, assets or liabilities (contingent or otherwise) of the Borrower and
its Subsidiaries, taken together. Since the Interim Balance Sheet Date, there
have not been any Distributions other than as permitted by Section 8.5 hereof.
SECTION 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and
each of its Subsidiaries possess all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of their business substantially as now
conducted (other than those the absence of which would not have a material
adverse effect on the business, operations or financial condition of the
Borrower and its Subsidiaries as a whole) without known conflict with any rights
of others other than a conflict which would not have a material adverse effect
on the financial condition, business or assets of the Borrower and its
Subsidiaries as a whole.
SECTION 6.7. LITIGATION. Except as set forth on Schedule 6.7 or in the
Disclosure Documents, there are no actions, suits, proceedings or investigations
of any kind pending or, to the knowledge of the Borrower or any of its
Subsidiaries, threatened against the Borrower or any of its Subsidiaries before
any court, tribunal or administrative agency or board which, either in any case
or in the aggregate, could reasonably be expected to have a material adverse
effect on the financial condition, business, or assets of the Borrower and its
Subsidiaries, considered as a whole, or materially impair the right of the
Borrower and its Subsidiaries, considered as a whole, to carry on business
substantially as now conducted, or result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet or which question the validity of
any of the Loan Documents to which the Borrower or any of its Subsidiaries is a
party, or any action taken or to be taken pursuant hereto or thereto.
SECTION 6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower
nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Borrower's or such Subsidiary's officers has or could reasonably
be expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries, considered
as a whole. Neither the Borrower nor any of its Subsidiaries is a party to any
contract or agreement which in the judgment of the Borrower's or its
Subsidiary's officers has or could reasonably be expected to have any materially
adverse effect on the financial condition, business or assets of the Borrower
and its Subsidiaries, considered as a whole, except as otherwise reflected in
adequate reserves as required by GAAP.
SECTION 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is (a) violating any provision of its
charter documents or by-laws or (b) violating any agreement or instrument to
which any of them may be subject or by which any of them or any of their
properties may be bound or any decree, order, judgment, or any statute,
46
40
license, rule or regulation, in a manner which could (in the case of such
agreements or such instruments) reasonably be expected to result in the
imposition of substantial penalties or materially and adversely affect the
financial condition, business or assets of the Borrower and its Subsidiaries,
considered as a whole.
SECTION 6.10. TAX STATUS. The Borrower and its Subsidiaries have filed
all federal, state, provincial and territorial income and all other tax returns,
reports and declarations (or obtained extensions with respect thereto) required
by applicable law to be filed by them (unless and only to the extent that the
Borrower or such Subsidiary has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes as required by
GAAP); and have paid all taxes and other governmental assessments and charges
(other than taxes, assessments and other governmental charges imposed by
jurisdictions other than the United States, Canada or any political subdivision
thereof which in the aggregate are not material to the financial condition,
business or assets of the Borrower or such Subsidiary on an individual basis or
of the Borrower and its Subsidiaries on a consolidated basis) that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith; and, as required by
GAAP, have set aside on their books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. Except to the extent contested in the
manner permitted in the preceding sentence, there are no unpaid taxes in any
material amount claimed by the taxing authority of any jurisdiction to be due
and owing by the Borrower or any Subsidiary, nor do the officers of the Borrower
or any of its Subsidiaries know of any basis for any such claim.
SECTION 6.11. NO EVENT OF DEFAULT. No (a) Default or Event of Default
has occurred hereunder and is continuing, and (b) no "Default" or "Event of
Default" (as defined in the 364 Day Facility or the European Credit Facilities,
respectively) under the 364 Day Facility or the European Credit Facilities,
respectively, has occurred and is continuing, or would be created by the
incurrence of Indebtedness under this Agreement.
SECTION 6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
any of them a "registered investment company", or an "affiliated company" or a
"principal underwriter" of a "registered investment company", as such terms are
defined in the Investment Company Act of 1940.
SECTION 6.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except as permitted
by Section 8.2 of this Agreement, there is no Indebtedness senior to the
Obligations, and there is no effective financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry, or other public office, which purports to cover,
affect or give notice of any present or possible future lien on, or security
interest in, any assets or property of the Borrower or any of its Subsidiaries
or right thereunder.
47
41
SECTION 6.14. EMPLOYEE BENEFIT PLANS.
SECTION 6.14.1. IN GENERAL. Each Employee Benefit Plan has
been maintained and operated in compliance in all material respects
with the provisions of ERISA and/or all Applicable Canadian Pension
Legislation, as applicable, and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting
prohibited transactions. Promptly upon the request of any Bank or the
Administrative Agent, the Borrower will furnish to the Administrative
Agent the most recently completed annual report, Form 5500, with all
required attachments, and actuarial statement required to be submitted
under Section 103(d) of ERISA, with respect to each Guaranteed Pension
Plan.
SECTION 6.14.2. TERMINABILITY OF WELFARE PLANS. Under each
Employee Benefit Plan which is an employee welfare benefit plan within
the meaning of Section 3(1) or Section 3(2)(B) of ERISA, no benefits
are due unless the event giving rise to the benefit entitlement occurs
prior to plan termination (except as required by Title I, Part 6 of
ERISA) . The Borrower or an ERISA Affiliate, as appropriate, may
terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of
the Borrower or such ERISA Affiliate without liability to any Person.
SECTION 6.14.3. GUARANTEED PENSION PLANS. Each contribution
required to be made to a Guaranteed Pension Plan, whether required to
be made to avoid the incurrence of an accumulated funding deficiency,
the notice or lien provisions of Section 302(f) of ERISA, or otherwise,
has been timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by
the Borrower or any ERISA Affiliate with respect to any Guaranteed
Pension Plan (other than Terminated Plans) and there has not been any
ERISA Reportable Event, or any other event or condition which presents
a material risk of termination of any Guaranteed Pension Plan by the
PBGC. Other than with respect to the Terminated Plans, based on the
latest valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this representation), and
on the actuarial methods and assumptions employed for that valuation,
the aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of Section 4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
SECTION 6.14.4. MULTIEMPLOYER PLANS. Neither the Borrower nor
any ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets described in
Section 4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of Section 4241 or Section 4245
of ERISA or that any Multiemployer Plan intends to terminate or has
been terminated under Section 4041A of ERISA.
SECTION 6.15. ENVIRONMENTAL COMPLIANCE. The Borrower and its
Subsidiaries have taken all necessary steps to investigate the past and present
condition and usage of the Real Property and
48
42
the operations conducted by the Borrower and its Subsidiaries and, based upon
such diligent investigation, have determined that, except as set forth on
Schedule 6.15 or in the Disclosure Documents:
(a) Neither the Borrower, its Subsidiaries, nor any operator
of their properties, is in violation, or alleged violation, of any
judgment, decree, order, law, permit, license, rule or regulation
pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act,
the Federal Clean Air Act, the Toxic Substances Control Act, or any
applicable international, federal, state, provincial, territorial or
local statute, regulation, ordinance, order or decree relating to
health, safety, waste transportation or disposal, or the environment
(the "Environmental Laws"), which violation, individually or in the
aggregate, would have a material adverse effect on the business, assets
or financial condition of the Borrower and its Subsidiaries on a
consolidated basis.
(b) Except with respect to any such matters which individually
or in the aggregate would not reasonably be expected to have a material
adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries on a consolidated basis, neither the
Borrower nor any of its Subsidiaries has received notice from any third
party including, without limitation: any federal, state, provincial,
territorial or local governmental authority, (i) that any one of them
has been identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities List, 40 C.F.R.
Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any hazardous waste, as defined by 42
U.S.C. Section 6903(5), any hazardous substances as defined by 42
U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42
U.S.C. Section 9601(33) or any toxic substance, oil or hazardous
materials or other chemicals or substances regulated by any
Environmental Laws, excluding household hazardous waste ("Hazardous
Substances"), which any one of them has generated, transported or
disposed of, has been found at any site at which a federal, state,
provincial, territorial or local agency or other third party has
conducted or has ordered that the Borrower or any of its Subsidiaries
conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a
named party to any claim, action, cause of action, complaint, legal or
administrative proceeding arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in
connection with the Release of Hazardous Substances.
(c) (i) No portion of the Real Property or other assets of the
Borrower and its Subsidiaries has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws, except as would not
reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Borrower and its
Subsidiaries on a consolidated basis; (ii) in the course of any
activities conducted by the Borrower, its Subsidiaries, or operators of
49
43
the Real Property or other assets of the Borrower and its Subsidiaries,
no Hazardous Substances have been generated or are being used on such
properties except in accordance with applicable Environmental Laws,
except for occurrences that would not have a material adverse effect on
the business, assets or financial condition of the Borrower and its
Subsidiaries on a consolidated basis; (iii) there have been no
unpermitted Releases or threatened Releases of Hazardous Substances on,
upon, into or from the Real Property or other assets of the Borrower or
its Subsidiaries, which Releases would have a material adverse effect
on the value of such properties; (iv) to the best of the Borrower's and
its Subsidiaries' knowledge, there have been no Releases on, upon, from
or into any real property in the vicinity of the Real Property or other
assets of the Borrower or its Subsidiaries which, through soil or
groundwater contamination, may have come to be located on, and which
would reasonably be expected to have a material adverse effect on the
value of, such properties; and (v) in addition, any Hazardous
Substances that have been generated on the Real Property or other
assets of the Borrower or its Subsidiaries have been transported
offsite only by carriers having an identification number issued by the
EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities have been and are, to the best
of the Borrower's and its Subsidiaries' knowledge, operating in
compliance with such permits and applicable Environmental Laws.
(d) None of the Real Property or other assets of the Borrower
or its Subsidiaries or any of the stock (or assets) being acquired with
proceeds of Loans is or shall be subject to any applicable
environmental clean-up responsibility law or environmental restrictive
transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
SECTION 6.16. TRUE COPIES OF CHARTER AND OTHER DOCUMENTS. Each of the
Borrower and the Guarantors has furnished the Administrative Agent as of the
Effective Date, true and complete copies of (a) all charter and other
incorporation documents (together with any amendments thereto) and (b) by-laws
(together with any amendments thereto).
SECTION 6.17. DISCLOSURE. No representation or warranty made by the
Borrower or any Guarantor in this Agreement or in any agreement, instrument,
document, certificate, statement or letter furnished to the Banks or the
Administrative Agent by or on behalf of or at the request of the Borrower and
the Guarantors in connection with any of the transactions contemplated by the
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances in which they are made.
SECTION 6.18. PERMITS AND GOVERNMENTAL AUTHORITY. All permits (other
than those the absence of which would not have a material adverse effect on the
business, operations or financial condition of the Borrower and its Subsidiaries
as a whole) required for the construction and operation of all landfills
currently owned or operated by the Borrower or any of its Subsidiaries have been
obtained and remain in full force and effect and are not subject to any appeals
or further proceedings or to any unsatisfied conditions that may allow material
50
44
modification or revocation. Neither the Borrower nor any of its Subsidiaries,
nor, to the knowledge of the Borrower and its Subsidiaries, the holder of such
permits is in violation of any such permits, except for any violation which
would not have a material adverse effect on the business, operations or
financial condition of the Borrower and its Subsidiaries as a whole.
SECTION 6.19. YEAR 2000 COMPLIANCE. The Borrower and its Subsidiaries
have reviewed the areas within their businesses and operations which could be
adversely affected by, and have developed or are developing a program to address
on a timely basis, the Year 2000 Compliance Issue. Based upon such review, the
Borrower reasonably believes that the Year 2000 Compliance Issue will not have
any material adverse effect on the business, operations or financial condition
of the Borrower and its Subsidiaries as a whole.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation or any Letter of Credit is outstanding or the
Banks have any obligation to make Loans, or any Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit hereunder, or the Banks have any
obligations to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall, and shall cause its Subsidiaries to, comply with the
following covenants:
SECTION 7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, fees and other amounts provided for in this Agreement
and the other Loan Documents, all in accordance with the terms of this Agreement
and such other Loan Documents.
SECTION 7.2. MAINTENANCE OF U.S. OFFICE. The Borrower will maintain its
chief executive offices at Houston, Texas, or at such other place in the United
States of America as the Borrower shall designate upon 30 days' prior written
notice to the Administrative Agent.
SECTION 7.3. RECORDS AND ACCOUNTS. The Borrower will, and will cause
each of its Subsidiaries to, keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP and
with the requirements of all regulatory authorities and maintain adequate
accounts and reserves for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties, all other
contingencies, and all other proper reserves.
SECTION 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver to the Banks:
(a) as soon as practicable, but, in any event not later than
92 days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such year, consolidated statements of cash flows, and the
related consolidated statements of operations, each setting forth in
comparative form the figures for the previous fiscal year, all such
consolidated financial statements to be in reasonable detail, prepared,
in accordance with GAAP and, with respect to the consolidated financial
statements, certified by PricewaterhouseCoopers LLP or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP or by other independent auditors selected by the Borrower and
reasonably satisfactory to the Banks (the "Accountants"). In addition,
simultaneously therewith, the
51
45
Borrower shall provide the Banks with a written statement from such
Accountants to the effect that they have read a copy of this Agreement,
and that, in making the examination necessary to said certification,
they have obtained no knowledge of any Default or Event of Default, or,
if such Accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement any
such Default or Event of Default;
(b) as soon as practicable, but in any event not later than 47
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, copies of the consolidated balance sheet
and statement of operations of the Borrower and its Subsidiaries as at
the end of such quarter, subject to year-end adjustments, and the
related consolidated statement of cash flows, all in reasonable detail
and prepared in accordance with GAAP (to the extent GAAP is applicable
to interim unaudited financial statements) with a certification by the
principal financial or accounting officer of the Borrower (the "CFO or
the CAO") that the consolidated financial statements are prepared in
accordance with GAAP (to the extent GAAP is applicable to interim
unaudited financial statements) and fairly present the consolidated
financial condition of the Borrower and its Subsidiaries on a
consolidated basis as at the close of business on the date thereof and
the results of operations for the period then ended, it being
understood that no such statement need be accompanied by complete
footnotes;
(c) simultaneously with the delivery of the financial
statements referred to in (a) and (b) above, a certificate in the form
of Exhibit F hereto (the "Compliance Certificate") signed by the CFO or
the CAO or the Borrower's corporate treasurer, stating that the
Borrower and its Subsidiaries are in compliance with the covenants
contained in Section Section 7, 8 and 9 hereof as of the end of the
applicable period and setting forth in reasonable detail computations
evidencing such compliance with respect to the covenants contained in
Section Section 8.1(d), 8.3, 8.4, 8.5, and 9 hereof and that no Default
or Event of Default exists, provided that if the Borrower shall at the
time of issuance of such Compliance Certificate or at any other time
obtain knowledge of any Default or Event of Default, the Borrower shall
include in such certificate or otherwise deliver forthwith to the Banks
a certificate specifying the nature and period of existence thereof and
what action the Borrower proposes to take with respect thereto;
(d) contemporaneously with, or promptly following, the filing
or mailing thereof, copies of all material of a financial nature filed
with the Securities and Exchange Commission or sent to the Borrower's
and its Subsidiaries' stockholders generally; and
(e) from time to time such other financial data and other
information as the Banks may reasonably request.
The Borrower hereby authorizes each Bank to disclose any information
obtained pursuant to this Agreement to all appropriate governmental regulatory
authorities where required by law; provided, however, this authorization shall
not be deemed to be a waiver of any rights to object to the disclosure by the
Banks of any such information which the Borrower has or may have under the
federal Right to Financial Privacy Act of 1978, as in effect from time to time,
except as to matters specifically permitted therein.
52
46
SECTION 7.5. EXISTENCE AND CONDUCT OF BUSINESS. The Borrower will, and
will cause each Subsidiary, to do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights and franchises;
and effect and maintain its foreign qualifications (except where the failure of
the Borrower or any Subsidiary to remain so qualified would not materially
adversely impair the financial condition, business or assets of the Borrower and
its Subsidiaries on a consolidated basis), licensing, domestication or
authorization except as terminated by its Board of Directors in the exercise of
its reasonable judgment; provided that such termination would not have a
material adverse effect on the financial condition, business or assets of the
Borrower and its Subsidiaries on a consolidated basis. The Borrower will not,
and will cause its Subsidiaries not to, become obligated under any contract or
binding arrangement which, at the time it was entered into, would materially
adversely impair the financial condition, business or assets of the Borrower and
its Subsidiaries, on a consolidated basis. The Borrower will, and will cause
each Subsidiary to, continue to engage primarily in the businesses now conducted
by it and in related businesses.
SECTION 7.6. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause its Subsidiaries to, cause all material properties used or useful in the
conduct of their businesses to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower and its Subsidiaries may be necessary so that the businesses
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this section shall prevent the
Borrower or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Borrower or such Subsidiary, desirable in the conduct of its or their
business and which does not in the aggregate materially adversely affect the
financial condition, business or assets of the Borrower and its Subsidiaries on
a consolidated basis.
SECTION 7.7. INSURANCE. The Borrower will, and will cause its
Subsidiaries to, maintain with financially sound and reputable insurance
companies, funds or underwriters, insurance of the kinds, covering the risks
(other than risks arising out of or in any way connected with personal liability
of any officers and directors thereof) and in the relative proportionate amounts
usually carried by reasonable and prudent companies conducting businesses
similar to that of the Borrower and its Subsidiaries, in amounts substantially
similar to the existing coverage policies maintained by the Borrower and its
Subsidiaries, copies of which have been provided to the Administrative Agent. In
addition, the Borrower will furnish from time to time, upon any Bank's request,
a summary of the insurance coverage of the Borrower and its Subsidiaries, which
summary shall be in form and substance satisfactory to the Banks and, if
requested by any of the Banks, will furnish to the Administrative Agent and such
Bank copies of the applicable policies.
SECTION 7.8. TAXES. The Borrower will, and will cause its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges imposed by
jurisdictions other than the United States, Canada or any political subdivision
thereof, which in the aggregate are not material to the business, financial
conditions, or assets of the Borrower and its Subsidiaries on a consolidated
basis) imposed upon
53
47
it and its real properties, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor, materials, or
supplies, which if unpaid might by law become a lien or charge upon any of its
property; provided, however, that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto as required by GAAP; and provided, further, that the Borrower or such
Subsidiary will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefor.
SECTION 7.9. INSPECTION OF PROPERTIES, BOOKS AND CONTRACTS. The
Borrower will, and will cause its Subsidiaries to, permit the Administrative
Agent or any Bank or any of their designated representatives, upon reasonable
notice, to visit and inspect any of the properties of the Borrower and its
Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries, or contracts (and to make copies thereof and extracts therefrom),
and to discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries with, and to be advised as to the same by, their officers, all at
such times and intervals as may be reasonably requested.
SECTION 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS;
MAINTENANCE OF MATERIAL LICENSES AND PERMITS. The Borrower will, and will cause
each Subsidiary to, (i) comply with the provisions of its charter documents and
by-laws; (ii) comply in all material respects with all agreements and
instruments by which it or any of its properties may be bound; (iii) comply with
all applicable laws and regulations (including Environmental Laws), decrees,
orders, judgments, licenses and permits, including, without limitation, all
environmental permits ("Applicable Requirements"), except where noncompliance
with such Applicable Requirements would not reasonably be expected to have a
material adverse effect in the aggregate on the consolidated financial
condition, properties or businesses of the Borrower and its Subsidiaries; (iv)
maintain all material operating permits for all landfills now owned or hereafter
acquired; and (v) dispose of hazardous waste only at licensed disposal
facilities operating, to the best of the Borrower's or such Subsidiary's
knowledge after reasonable inquiry, in compliance with Environmental Laws. If at
any time any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or
required in order that the Borrower or any Subsidiary may fulfill any of its
obligations hereunder or under any other Loan Document, the Borrower will
immediately take or cause to be taken all reasonable steps within the power of
the Borrower or such Subsidiary to obtain such authorization, consent, approval,
permit or license and furnish the Banks with evidence thereof.
SECTION 7.11. ENVIRONMENTAL INDEMNIFICATION. The Borrower covenants and
agrees that it will indemnify and hold the Banks, the Issuing Banks and the
Administrative Agent and their respective affiliates, and each of the
representatives, agents and officers of each of the foregoing, harmless from and
against any and all claims, expense, damage, loss or liability incurred by the
Banks, the Issuing Banks or the Administrative Agent (including all costs of
legal representation incurred by the Banks, the Issuing Banks or the
Administrative Agent) relating to (a) any Release or threatened Release of
Hazardous Substances on the Real Property; (b) any violation of any
Environmental Laws or Applicable Requirements with respect to conditions at the
Real Property or other assets of the Borrower or its Subsidiaries, or the
operations conducted thereon;
54
48
or (c) the investigation or remediation of offsite locations at which the
Borrower, any of its Subsidiaries, or their predecessors are alleged to have
directly or indirectly Disposed of Hazardous Substances. It is expressly
acknowledged by the Borrower that this covenant of indemnification shall survive
the payment of the Loans and Reimbursement Obligations and satisfaction of all
other Obligations hereunder and shall inure to the benefit of the Banks, the
Issuing Banks, the Administrative Agent and their affiliates, successors and
assigns.
SECTION 7.12. FURTHER ASSURANCES. The Borrower and the Guarantors will
cooperate with the Administrative Agent and execute such further instruments and
documents as the Administrative Agent shall reasonably request to carry out to
the Banks' satisfaction the transactions contemplated by this Agreement.
SECTION 7.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION. The Borrower
shall deliver to the Banks, within 30 days of receipt thereof, written notice of
the initiation of any action, claim, complaint, or any other notice of dispute
or potential litigation against the Borrower or any of its Subsidiaries wherein
the potential liability is in excess of $25,000,000 or which questions the
validity or enforceability of any Loan Document, together with a copy of each
such complaint or other notice received by the Borrower or any of its
Subsidiaries if requested by the Administrative Agent.
SECTION 7.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND
ENVIRONMENTAL CLAIMS.
(a) The Borrower will provide the Banks with written notice as
to any material cancellation or material adverse change in any
insurance of the Borrower or any of its Subsidiaries within ten (10)
Business Days after the Borrower's or any of its Subsidiary's receipt
of any notice (whether formal or informal) of such material
cancellation or material change by any of its insurers.
(b) The Borrower will promptly, and in any event within ten
(10) Business Days of the Borrower's obtaining knowledge thereof,
notify the Banks in writing of any of the following events:
(i) upon the Borrower's or any Subsidiary's obtaining
knowledge of any violation of any Environmental Law regarding
the Real Property or the Borrower's or any Subsidiary's
operations which violation could have a material adverse
effect on the business, financial condition, or assets of the
Borrower and its Subsidiaries on a consolidated basis;
(ii) upon the Borrower's or any Subsidiary's
obtaining knowledge of any potential or known Release, or
threat of Release, of any Hazardous Substance at, from, or
into the Real Property which could materially affect the
business, financial condition, or assets of the Borrower and
its Subsidiaries on a consolidated basis;
(iii) upon the Borrower's or any Subsidiary's receipt
of any notice of any material violation of any Environmental
Law or of any Release or threatened Release of Hazardous
Substances, including a notice or claim of liability or
55
49
potential responsibility from any third party (including any
federal, state, provincial, territorial or local governmental
officials) and including notice of any formal inquiry,
proceeding, demand, investigation or other action with regard
to (A) the Borrower's, any Subsidiary's or any Person's
operation of the Real Property, (B) contamination on, from, or
into the Real Property, or (C) investigation or remediation of
offsite locations at which the Borrower, any Subsidiary, or
its predecessors are alleged to have directly or indirectly
Disposed of Hazardous Substances, and with respect to which
the liability associated therewith could be reasonably
expected to exceed $25,000,000; or
(iv) upon the Borrower's or any Subsidiary's
obtaining knowledge that any expense or loss which
individually or in the aggregate exceeds $25,000,000 has been
incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any
Hazardous Substances with respect to which the Borrower or any
Subsidiary may be liable or for which a lien may be imposed on
the Real Property.
SECTION 7.15. NOTICE OF DEFAULT. The Borrower will promptly notify the
Banks in writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default) under this Agreement
or any other note, evidence of indebtedness, indenture or other obligation
evidencing indebtedness in excess of $25,000,000 as to which the Borrower or any
of its Subsidiaries is a party or obligor, whether as principal or surety, the
Borrower shall forthwith upon obtaining actual knowledge thereof give written
notice thereof to the Banks, describing the notice of action and the nature of
the claimed default.
SECTION 7.16. USE OF PROCEEDS. The proceeds of the Loans shall be used
for general corporate purposes. No proceeds of the Loans shall be used in any
way that will violate Regulations U or X of the Board of Governors of the
Federal Reserve System. No portion of the proceeds of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose of (a)
knowingly purchasing, or providing credit support for the purchase of,
Ineligible Securities from a Section 20 Subsidiary during any period in which
such Section 20 Subsidiary makes a market in such Ineligible Securities, (b)
knowingly purchasing, or providing credit support for the purchase of, during
the underwriting or placement period, any Ineligible Securities being
underwritten or privately placed by a Section 20 Subsidiary, or (c) making, or
providing credit support for the making of, payments of principal or interest on
Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Borrower or any Subsidiary or
other Affiliate of the Borrower.
SECTION 7.17. CERTAIN TRANSACTIONS. Except as disclosed in the
Disclosure Documents prior to the Effective Date, and except for arm's length
transactions pursuant to which the Borrower or any Subsidiary makes payments in
the ordinary course of business upon terms no less favorable than the Borrower
or such Subsidiary could obtain from third parties, none of the officers,
directors, or employees or any other Affiliate of the Borrower or any Subsidiary
are presently or shall be a party to any transaction with the Borrower or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement
56
50
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower or any
Subsidiary, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
agrees that, so long as any Obligation or Letter of Credit is outstanding or the
Banks have any obligation to make Loans or any Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit hereunder, or the Banks have any
obligation to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall, and shall cause its Subsidiaries to, comply with the
following covenants:
SECTION 8.1. RESTRICTIONS ON INDEBTEDNESS. Neither the Borrower nor any
of its Subsidiaries shall become or be a guarantor or surety of, or otherwise
create, incur, assume, or be or remain liable, contingently or otherwise, with
respect to any Indebtedness, or become or be responsible in any manner (whether
by agreement to purchase any obligations, stock, assets, goods or services, or
to supply or advance any funds, assets, goods or services or otherwise) with
respect to any Indebtedness of any other Person, or incur any Indebtedness other
than:
(a) Indebtedness arising under this Agreement or the other
Loan Documents;
(b) (i) Indebtedness incurred by the Borrower or any
Subsidiary with respect to any suretyship or performance bond incurred
in the ordinary course of its business and undrawn landfill closure
bonds; and
(ii) Guarantees of the Subsidiaries' obligations to
governmental authorities in lieu of the posting of any landfill closure
bonds;
(c) Unsecured Indebtedness of the Borrower (and any guarantee
thereof by WMH), including commercial paper, which is pari passu or
subordinated to the Obligations; provided that there does not exist a
Default or Event of Default at the time of the incurrence of such
Indebtedness and no Default or Event of Default would be created by the
incurrence of such Indebtedness;
(d) (i) Indebtedness of the Borrower's Subsidiaries (other
than of WMH and the Sanifill Convertible Subordinated Debt), (ii)
secured Indebtedness of the Borrower, (iii) Indebtedness with respect
to drawn landfill closure bonds of the Borrower's Subsidiaries (other
than of WMH), and (iv) Indebtedness with respect to Permitted
Receivables Transactions (other than of WMH); provided that the
aggregate amount of all such Indebtedness in this Section 8.1(d) shall
not exceed 15% of Consolidated Tangible Assets at any time;
57
51
(e) Indebtedness of WMH listed in Schedule 8.1(e) on the terms
and conditions existing on July 16, 1998, provided that any extension,
renewal or refinancing of such Indebtedness is prohibited unless the
amount of such extended, renewed or refinanced Indebtedness by WMH is
deducted from Indebtedness allowed under Section 8.1(d) above;
(f) The Sanifill Convertible Subordinated Debt; and
(g) Indebtedness of the Borrower and certain of its
Subsidiaries under the 364 Day Facility and the European Credit
Facilities.
SECTION 8.2. RESTRICTIONS ON LIENS. The Borrower will not, and will
cause its Subsidiaries not to, create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any property or assets
of any character, whether now owned or hereafter acquired, or upon the income or
profits therefrom; or transfer any of such property or assets or the income or
profits therefrom for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors; or acquire, or agree or have an option to acquire, any
property or assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement; or suffer to exist for a period
of more than 30 days after the same shall have been incurred any Indebtedness or
claim or demand against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or sell, assign, pledge or otherwise transfer any accounts, contract
rights, general intangibles or chattel paper, with or without recourse, except
as follows (the "Permitted Liens"):
(a) Liens listed on Schedule 8.2(a) hereto;
(b) Liens securing Indebtedness permitted by Section 8.1(b)(i)
hereof; provided that the assets subject to such liens and security
interests shall be limited to those contracts to which such guaranty,
suretyship or indemnification obligations relate and the rights to
payment thereunder;
(c) Liens securing Indebtedness permitted under Section
Section 8.1(d) and (e) (provided that Liens created pursuant to a
Permitted Receivables Transaction are only on the receivables (and
related contract rights, general intangibles, and chattel paper) so
transferred and securing only the obligations with respect thereto);
(d) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue;
(e) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(f) Liens in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal so long
as execution is not levied
58
52
thereunder or in respect of which the Borrower (or any Subsidiary)
shall at the time in good faith be prosecuting an appeal or proceedings
for review and in respect of which a stay of execution shall have been
obtained pending such appeal or review and in respect of which the
Borrower maintains adequate reserves;
(g) Liens of carriers, warehousemen, mechanics and
materialmen, and other like liens, in existence less than 120 days from
the date of creation thereof in respect of obligations not overdue,
provided that such liens may continue to exist for a period of more
than 120 days if the validity or amount thereof shall currently be
contested by the Borrower (or any Subsidiary) in good faith by
appropriate proceedings and if the Borrower shall have set aside on its
books adequate reserves with respect thereto as required by GAAP and
provided further that the Borrower (or any Subsidiary) will pay any
such claim forthwith upon commencement of proceedings to foreclose any
such lien; and
(h) Encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which the Borrower or any Subsidiary is a party,
and other minor liens or encumbrances none of which in the opinion of
the Borrower interferes materially with the use of the property
affected in the ordinary conduct of the business of the Borrower or any
of its Subsidiaries, which defects do not individually or in the
aggregate have a material adverse effect on the business of the
Borrower or any Subsidiary individually or of the Borrower and its
Subsidiaries on a consolidated basis.
The Borrower and the Guarantors covenant and agree that if any
of them or any of their Subsidiaries shall create or assume any lien
upon any of their respective properties or assets, whether now owned or
hereafter acquired, other than Permitted Liens (unless prior written
consent shall have been obtained from the Banks), the Borrower and the
Guarantors will make or cause to be made effective provision whereby
the Obligations and their respective Guaranteed Obligations will be
secured by such lien equally and ratably with any and all other
Indebtedness thereby secured so long as such other Indebtedness shall
be so secured; provided, that the covenants of the Borrower and the
Guarantors contained in this sentence shall only be in effect for so
long as the Borrower or any Guarantor shall be similarly obligated
under any other Indebtedness; provided, further, that an Event of
Default shall occur for so long as such other Indebtedness becomes
secured notwithstanding any actions taken by the Borrower or any
Guarantor to ratably secure the Obligations and the Guaranteed
Obligations hereunder.
SECTION 8.3. RESTRICTIONS ON INVESTMENTS. Except to the extent provided
in Section 8.4, neither the Borrower nor any Subsidiary may make or permit to
exist or to remain outstanding any Investment, unless both before and after
giving effect thereto (i) the Borrower and its Subsidiaries are in compliance
with the covenants set forth in Section Section 7, 8 and 9 hereof; (ii) there
does not exist a Default or Event of Default and no Default or Event of Default
would be created by the making of such Investment; and (iii) the aggregate
amount of all Investments (excluding Investments in (A) direct obligations of
the United States of America or any agency thereof having maturities of less
than one (1) year, (B) certificates of deposit having maturities of less
59
53
than one (1) year, issued by commercial banks in the United States or Canada
having capital and surplus of not less than $100,000,000, and (C) wholly owned
Subsidiaries, does not exceed 10% of Consolidated Tangible Assets; provided,
that the ability of the Borrower and its Subsidiaries to incur any Indebtedness
in connection with any Investment permitted by this Section 8.3 shall be
governed by Section 8.1.
SECTION 8.4. MERGERS, CONSOLIDATIONS, SALES.
(a) Neither the Borrower nor any Subsidiary shall be a party
to any merger, consolidation or exchange of stock unless the Borrower
shall be the surviving entity with respect to any such transaction to
which the Borrower is a party and a Guarantor shall be the survivor of
any merger with any Subsidiary which is not Guarantor or a Subsidiary
shall be the surviving entity (and continue to be a Subsidiary) with
respect to any such transactions to which one or more Subsidiaries is a
party (and the conditions set forth below are satisfied), or purchase
or otherwise acquire all or substantially all of the assets or stock of
any class of, or any partnership, membership or joint venture or other
interest in, any other Person except as otherwise provided in Section
8.3 or this Section 8.4. Notwithstanding the foregoing, the Borrower
and its Subsidiaries may purchase or otherwise acquire all or
substantially all of the assets or stock of any class of, or joint
venture or other interest in, any Person if the following conditions
have been met: (i) the proposed transaction will not otherwise create a
Default or an Event of Default hereunder; (ii) the business to be
acquired predominantly involves (A) the collection, transfer, hauling,
disposal or recycling of solid waste (excluding hazardous waste as that
term is defined in RCRA) or thermal soil remediation, or (B) other
lines of businesses currently engaged in by WMH, including (1) on-site
portable sanitation services, (2) industrial cleaning services, (3)
chemical waste treatment, storage, disposal and related services, (4)
on-site integrated hazardous waste management services, including
hazardous waste identification, packaging, removal, and recycling
services, (5) radioactive waste management services, (6) development
and operation of waste-to-energy facilities and related services, (7)
the treatment and management of biosolids, (8) design and installation
of air pollution control systems and equipment, or (9) environmental
and infrastructure consulting and related services, provided that
revenues from operations with respect to items (3), (4) and (5) shall
not exceed ten percent (10%) of consolidated revenues without the
consent of the Majority Banks; (iii) the business to be acquired
operates predominantly (A) in North America or (B) outside North
America, provided, that the aggregate amount of such acquisitions under
this clause (B) does not exceed fifteen percent (15%) of Consolidated
Tangible Assets; and (iv) the board of directors and (if required by
applicable law) the shareholders, or the equivalent thereof, of the
business to be acquired has approved such acquisition. Notwithstanding
anything herein to the contrary, the ability of the Borrower and its
Subsidiaries to incur any Indebtedness in connection with any
transaction permitted pursuant to this Section 8.4 shall be governed by
Section 8.1.
(b) Neither the Borrower nor any Subsidiary shall sell,
transfer, convey or lease any assets or group of assets including the
sale or transfer of any property owned by the Borrower or any
Subsidiary in order then or thereafter to lease such property or lease
other property which the Borrower or such Subsidiary intends to use for
substantially the
60
54
same purpose as the property being sold or transferred (except (1)
transfers of real or personal property among Subsidiaries of the
Borrower which are wholly owned by the Borrower, (2) Regulatory
Dispositions, (3) Strategic Dispositions, (4) Allied Waste Transactions
and (5) so long as no Default or Event of Default has occurred and is
continuing, or would result therefrom, sales of assets in the ordinary
course of business in any calendar year with an aggregate value not
greater than $50,000,000), or sell or assign, with or without recourse,
any receivables (except accounts receivable (and contract rights,
general intangibles or chattel paper related thereto) more than sixty
(60) days past due sold or assigned in the ordinary course of
collecting past due accounts, or pursuant to a Permitted Receivables
Transaction).
(c) Commencing with the Effective Date, at any time when the
aggregate Net Cash Proceeds from all Domestic Strategic Dispositions
not previously applied or set aside for application under this Section
8.4(c) exceeds $25,000,000 in the aggregate, then all such Net Cash
Proceeds (including the first $25,000,000) received by the Borrower or
any Subsidiary from Domestic Strategic Dispositions shall be applied
within five (5) Business Days to pay down the Existing Domestic Bank
Debt on a pro rata basis as set forth in the following table (with
concurrent permanent reduction in the lenders' commitments to advance
funds or provide credit hereunder and thereunder of not less than
eighty percent (80%) of the amount of such pay down), with the
remainder of such Net Cash Proceeds to be available for share
repurchases (subject to Section 8.5 below), and for other general
corporate purposes (including acquisitions):
--------------------------------------------------------------------------------------------------------------------------
Cumulative Net Cash Proceeds % Required to Repay % Available for Share
Existing Domestic Bank Repurchase
Debt
--------------------------------------------------------------------------------------------------------------------------
Tier I Greater than or equal to $0 and less than or 100% 0%
equal to $1,500,000,000
--------------------------------------------------------------------------------------------------------------------------
Tier II Greater than $1,500,000,000 and less than or 50% 50%
equal to $2,500,000,000
--------------------------------------------------------------------------------------------------------------------------
Tier III Greater than $2,500,000,000 and less than or 0% 100%
equal to $5,000,000,000
--------------------------------------------------------------------------------------------------------------------------
provided that in the event that the Senior Public Debt Rating is rated
less than BBB- by Standard & Poor's AND less than Baa3 by Moody's, Tier
III shall be adjusted such that 20% of Net Cash Proceeds are required
to repay Existing Domestic Bank Debt and 80% of Net Cash Proceeds will
be available for share repurchases. The Borrower shall promptly provide
a monthly report to the Administrative Agent in the form of Exhibit L
hereto (the "Form of Net Cash Proceeds Certificate") of Net Cash
Proceeds from all Domestic Strategic Dispositions for the month, and
demonstrating compliance with the conditions set forth above.
61
55
(d) Net Cash Proceeds from any European Strategic Dispositions
shall be used first to permanently pay down the European Credit
Facilities (and concurrent permanent reduction of the commitments of
the lenders to advance funds or provide credit thereunder by the amount
of such pay down), with any surplus to be treated as if such surplus
were Net Cash Proceeds from a Domestic Strategic Disposition in
accordance with subsection (c) above. The Borrower shall promptly
provide a monthly report to the Administrative Agent in the form of
Exhibit L hereto of Net Cash Proceeds from all European Strategic
Dispositions for the month, and demonstrating compliance with the
conditions set forth above.
SECTION 8.5. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. Neither the
Borrower nor any of its Subsidiaries will (a) declare or pay any Distributions,
or (b) redeem, convert, retire or otherwise acquire shares of any class of its
capital stock (other than in connection with a merger permitted by Section 8.4
hereof or conversion into another form of equity of any preferred shares of the
Borrower existing as of the Effective Date pursuant to the terms thereof);
provided that, so long as no Default or Event of Default exists or would be
created hereunder, the Borrower and its Subsidiaries may (i) pay cash dividends
and redeem stock in an aggregate amount not to exceed Net Cash Proceeds from
Strategic Dispositions available for share repurchase in accordance with the
table set forth above in Section 8.4(c), provided further that, giving effect to
the proposed share repurchase on a proforma basis as if the transaction occurred
as of the last day of the prior fiscal quarter, the Borrower (x) shall have cash
equivalents plus Existing Domestic Bank Debt Availability of at least
$1,000,000,000, (y) the ratio of Total Debt to EBITDA for the most recently
ended period of four fiscal quarters shall not exceed 2.75:1 and (z) the
European Credit Facilities shall have been paid in full; and (ii) pay common
dividends in an aggregate amount not to exceed $25,000,000 per year.
Notwithstanding the above, any Subsidiary may make Distributions to the Borrower
and the Borrower agrees that neither the Borrower nor any Material Subsidiary
will enter into any agreement restricting Distributions from such Material
Subsidiary to the Borrower.
SECTION 8.6. EMPLOYEE BENEFIT PLANS. None of the Borrower, any of its
Subsidiaries, or any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result
in a material liability for the Borrower on a consolidated basis; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any Guarantor pursuant to Section 302(f) or
Section 4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (within the meaning of Section 4001 of
ERISA), other than with respect to the
62
56
Terminated Plans, of all Guaranteed Pension Plans exceeding the value
of the aggregate assets of such Plans, disregarding for this purpose
the benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities; or
(e) take any action referred to in paragraph (a), (b), (c) or
(d) above that would violate any provisions of Applicable Canadian
Pension Legislation.
The Borrower and its Subsidiaries will (i) promptly upon the request of
any Bank or the Administrative Agent, furnish to the Banks a copy of the most
recent actuarial statement required to be submitted under Section 103(d) of
ERISA and Annual Report, Form 5500, with all required attachments, in respect of
each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch, furnish
to the Banks any notice, report or demand sent or received in respect of a
Guaranteed Pension Plan under Section Section 302, 4041, 4042, 4043, 4063, 4065,
4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under Section
Section 4041A, 4202, 4219, 4242 or 4245 of ERISA.
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation or Letter of Credit is outstanding or the Banks
have any obligation to make Loans, or any Issuing Bank has any obligation to
issue, extend or renew any Letter of Credit hereunder, or the Banks have any
obligation to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall, and shall cause its Subsidiaries to, comply with the
following covenants:
SECTION 9.1. INTEREST COVERAGE RATIO. As of the end of any fiscal
quarter of the Borrower, the Borrower will not permit the ratio of (a) EBIT for
the four fiscal quarters then ending to (b) Consolidated Total Interest Expense
for such period to be less than the applicable ratio set forth in the table
below:
---------------------------------------------------------------------------------
FISCAL QUARTERS ENDING: RATIO:
---------------------------------------------------------------------------------
December 31, 1999 - September 30, 2000 2.75:1
---------------------------------------------------------------------------------
December 31, 2000 and thereafter 3.00:1
---------------------------------------------------------------------------------
SECTION 9.2. TOTAL DEBT TO EBITDA. As of the end of any fiscal quarter
of the Borrower, the Borrower will not permit the ratio of (a) Total Debt to (b)
EBITDA for the four fiscal quarters then ending to exceed the applicable ratio
set forth in the table below:
---------------------------------------------------------------------------------
FISCAL QUARTERS ENDING: RATIO:
---------------------------------------------------------------------------------
December 31, 1999 - June 30, 2000 3.25:1.00
---------------------------------------------------------------------------------
September 30, 2000 and thereafter 3.00:1.00.
---------------------------------------------------------------------------------
63
57
SECTION 9.3. MINIMUM NET WORTH. The Borrower will not permit
Consolidated Net Worth at any time to be less than $3,500,000,000, plus 75% of
cumulative positive Consolidated Net Income for each fiscal quarter, beginning
with the fourth fiscal quarter of 1999, minus any share repurchases permitted
pursuant to Section 8.5 hereof.
SECTION 10. CONDITIONS PRECEDENT.
SECTION 10.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement and the obligations of the Banks to make any Loans and of any Issuing
Bank to issue Letters of Credit and of the Banks to participate in Letters of
Credit and otherwise be bound by the terms of this Agreement shall be subject to
the satisfaction of each of the following conditions precedent:
SECTION 10.1.1. CORPORATE ACTION. All corporate action
necessary for the valid execution, delivery and performance by the
Borrower and the Guarantors of the Loan Documents shall have been duly
and effectively taken, and evidence thereof certified by authorized
officers of the Borrower and the Guarantors and satisfactory to the
Majority Banks shall have been provided to the Banks.
SECTION 10.1.2. LOAN DOCUMENTS, ETC. Each of the Loan
Documents and other documents listed on the closing agenda shall have
been duly and properly authorized, executed and delivered by the
respective parties thereto and shall be in full force and effect in a
form satisfactory to the Majority Banks.
SECTION 10.1.3. CERTIFIED COPIES OF CHARTER DOCUMENTS. The
Banks shall have received from each of the Borrower and the Guarantors
a certificate, certified by a duly authorized officer of such Person to
be true and complete on the Effective Date, of (a) no changes (other
than those attached thereto) to its charter or other incorporation
documents since last delivered to the Administrative Agent, and (b) no
changes to its by-laws (other than those attached thereto) since last
delivered to the Administrative Agent.
SECTION 10.1.4. INCUMBENCY CERTIFICATE. The Banks shall have
received an incumbency certificate, dated as of the Effective Date,
signed by duly authorized officers of the Borrower and each of the
Guarantors giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign the Loan Documents on
behalf of the Borrower and each Guarantor; (b) to make Syndicated Loan
Requests and Letter of Credit Requests; (c) to make Competitive Bid
Quote Requests; and (d) to give notices and to take other action on the
Borrower's or such Guarantor's behalf under the Loan Documents.
SECTION 10.1.5. CERTIFICATES OF INSURANCE. The Banks shall
have received (i) a certificate of insurance from an independent
insurance broker dated as of the Effective Date, or within 15 days
prior thereto, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Loan Documents and
(ii) copies of all policies evidencing such
64
58
insurance (or certificates therefor signed by the insurer or an agent
authorized to bind the insurer).
SECTION 10.1.6. OPINIONS OF COUNSEL. The Banks shall have
received favorable legal opinions from outside counsel to the Borrower
and the Guarantors addressed to the Banks, dated the Effective Date, in
form and substance satisfactory to the Administrative Agent.
SECTION 10.1.7. SATISFACTORY FINANCIAL CONDITION. Other than
as disclosed in the Disclosure Documents, no material adverse change,
in the judgment of the Majority Banks, shall have occurred in the
financial condition, results of operations, business, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole, since
the Interim Balance Sheet Date.
SECTION 10.1.8. PAYMENT OF AMENDMENT FEES. For each Bank which
executed and delivered its facsimile signature pages by 5:00 p.m. on
December 15, 1999, the Borrower shall have paid the agreed upon
amendment fee of 0.125% on each such Bank's Commitment to the
Administrative Agent for the account of such Banks.
SECTION 10.1.9. AMENDMENTS TO EXISTING DEBT. The
Administrative Agent shall have received evidence, in form and
substance satisfactory to the Administrative Agent, that the 364 Day
Facility is concurrently becoming effective in a form and substance
satisfactory to the Administrative Agent, BKB and the Joint Lead
Arrangers and Joint Book Managers, and no "Event of Default", "Default"
(each as defined in such agreement) or prepayment event shall exist
under such agreement and no liens shall be created under such agreement
as a result of the transactions contemplated hereby.
SECTION 10.2. NOTICE OF EFFECTIVE DATE. Promptly upon receipt of the
items set forth above, the Administrative Agent shall notify the Banks that all
of the conditions of Section 10.1 have been satisfied and that the Majority
Banks have approved this Agreement. As soon as practical thereafter, the
Administrative Agent shall distribute an original counterpart of this Agreement
to each Bank, together with copies of other items delivered in connection with
the closing of this Agreement.
SECTION 11. CONDITIONS TO ALL LOANS. The obligations of the Banks to
make any Loan and the obligation of any Issuing Bank to issue, extend, or renew
any Letter of Credit at the time of and subsequent to the Effective Date is
subject to the following conditions precedent:
SECTION 11.1. REPRESENTATIONS TRUE. Each of the representations and
warranties of the Borrower and the Guarantors (as applicable) contained in this
Agreement or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of such
Loan or the issuance, extension, or renewal of any Letter of Credit, as
applicable, with the same effect as if made at and as of that time (except to
the extent of changes resulting from transactions contemplated or permitted by
this Agreement and changes occurring in the ordinary course of business which
singly or in the aggregate are not materially adverse to the business,
65
59
assets or financial condition of the Borrower and its Subsidiaries as a whole,
and to the extent that such representations and warranties relate expressly and
solely to an earlier date).
SECTION 11.2. PERFORMANCE; NO EVENT OF DEFAULT. The Borrower shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by it prior to or at the time of the making of any
Loan the issuance, extension or renewal of any Letter of Credit, and at the time
of the making of any Loan or the issuance, renewal or extension of any Letter of
Credit, there shall exist no Default or Event of Default or condition which
would result in a Default or an Event of Default upon consummation of such Loan
or issuance, extension, or renewal of any Letter of Credit, as applicable. Each
request for a Loan, or for issuance, extension or renewal of a Letter of Credit
shall constitute certification by the Borrower that the conditions specified in
Section Section 11.1 and 11.2 will be duly satisfied on the date of such Loan or
Letter of Credit issuance, extension or renewal.
SECTION 11.3. NO LEGAL IMPEDIMENT. No change shall have occurred in any
law or regulations thereunder or interpretations thereof which in the reasonable
opinion of the Banks would make it illegal for the Banks to make Loans, for any
Issuing Bank to issue, extend or renew, or the Banks to participate in, Letters
of Credit hereunder.
SECTION 11.4. GOVERNMENTAL REGULATION. The Banks shall have received
from the Borrower and its Subsidiaries such statements in substance and form
reasonably satisfactory to the Banks as they shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency or
the Board of Governors of the Federal Reserve System or the Office of the
Superintendent of Financial Institutions.
SECTION 11.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall have been delivered to the Banks as of the date of the making of
any extension of credit in substance and in form satisfactory to the Banks,
including without limitation a Syndicated Loan Request in the form attached
hereto as Exhibit D or a Letter of Credit Request in the form of Exhibit E and
the Banks shall have received all information and such counterpart originals or
certified or other copies of such documents as the Banks may reasonably request.
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SECTION 12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice and/or lapse of time,
"Defaults") shall occur:
(a) if the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or
other amounts owing hereunder (other than those specified in subsection
(a) above) within five (5)
66
60
Business Days after the same shall become due and payable whether at
the Maturity Date or any accelerated date of maturity or at any other
date fixed for payment;
(c) if the Borrower shall fail to comply with any of the
covenants contained in Sections 7, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant
or agreement contained herein or in any of the other Loan Documents
(other than those specified in subsections (a), (b), and (c) above) and
such failure shall not be remedied within 30 days after written notice
of such failure shall have been given to the Borrower by the
Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this
Agreement or in any document or instrument delivered pursuant to or in
connection with this Agreement shall prove to have been false in any
material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to
pay when due, or within any applicable period of grace, any
Indebtedness in an aggregate amount greater than $50,000,000, or fail
to observe or perform any material term, covenant or agreement
contained in any one or more agreements by which it is bound,
evidencing or securing any Indebtedness in an aggregate amount greater
than $50,000,000 for such period of time as would permit, or would have
permitted (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof or terminate its commitment with
respect thereto;
(g) if the Borrower, any Guarantor or any Material Subsidiary
makes an assignment for the benefit of creditors, or admits in writing
its inability to pay or generally fails to pay its debts as they mature
or become due, or petitions or applies for the appointment of a trustee
or other custodian, liquidator or receiver of the Borrower, the
Guarantors or any Material Subsidiary, or of any substantial part of
the assets of the Borrower, the Guarantors or any Material Subsidiary
or commences any case or other proceeding relating to the Borrower, the
Guarantors or any Material Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or takes any action to authorize or in furtherance
of any of the foregoing, or if any such petition or application is
filed or any such case or other proceeding is commenced against the
Borrower, the Guarantors or any Material Subsidiary or the Borrower,
any Guarantor or any Material Subsidiary indicates its approval
thereof, consent thereto or acquiescence therein;
(h) if a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower
or any Guarantor or any Material Subsidiary bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree
or order for relief is entered in respect of the Borrower or any
Guarantor or any Material Subsidiary in an involuntary case under
federal bankruptcy laws of any jurisdiction as now or hereafter
constituted, and such decree or order remains in effect for more than
30 days, whether or not consecutive;
67
61
(i) if there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days, whether or not consecutive,
any final judgment against the Borrower or any Subsidiary which, with
other outstanding final judgments against the Borrower and its
Subsidiaries exceeds in the aggregate $25,000,000 after taking into
account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan (or any
corresponding plan described in any Applicable Canadian Pension
Legislation), an ERISA Reportable Event or similar event under
Applicable Canadian Pension Legislation shall have occurred and the
Banks shall have determined in their reasonable discretion that such
event reasonably could be expected to result in liability of the
Borrower or any Subsidiary to the PBGC or similar Canadian authorities
or the Plan in an aggregate amount exceeding $25,000,000 and such event
in the circumstances occurring reasonably could constitute grounds for
the partial or complete termination of such Plan by the PBGC or similar
Canadian authorities or for the appointment by the appropriate United
States District Court or Canadian Court of a trustee to administer such
Plan; or a trustee shall have been appointed by the appropriate United
States District Court or Canadian Court to administer such Plan; or the
PBGC or similar Canadian authorities shall have instituted proceedings
to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded otherwise than in accordance with the
terms thereof or with the express prior written agreement, consent or
approval of the Banks, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower, any Guarantor, or
any of their respective stockholders, or any court or any other
governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable in accordance with the
terms thereof; or
(l) if any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 25% or more of the outstanding shares of common voting stock of
the Borrower; or during any period of twelve consecutive calendar
months, individuals who were directors of the Borrower on the first day
of such period shall cease to constitute a majority of the board of
directors of the Borrower;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrower, declare all amounts owing with respect to
this Agreement, the Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration to the extent permitted by law or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that in the event of any Event of Default specified in Section 12.1(g)
or 12.1(h), all such amounts shall become immediately due and
68
62
payable automatically and without any requirement of notice from the
Administrative Agent or any Bank. Upon demand by the Majority Banks after the
occurrence of any Event of Default, the Borrower shall immediately provide to
the Administrative Agent cash in an amount equal to the aggregate Maximum
Drawing Amount to be held by the Administrative Agent as collateral security for
the Reimbursement Obligations.
SECTION 12.2. TERMINATION OF COMMITMENTS. If any Event of Default
pursuant to Sections 12.1(g) or 12.1(h) hereof shall occur, any unused portion
of the Total Commitment hereunder shall forthwith terminate and the Banks and
the Issuing Banks shall be relieved of all obligations to make Loans or to
issue, extend or renew Letters of Credit hereunder; or if any other Event of
Default shall occur, the Majority Banks may by notice to the Borrower terminate
the unused portion of the Total Commitment hereunder, and, upon such notice
being given, such unused portion of the Total Commitment hereunder shall
terminate immediately and the Banks and the Issuing Banks shall be relieved of
all further obligations to make Loans or to issue, extend or renew Letters of
Credit hereunder. No termination of any portion of the Total Commitment
hereunder shall relieve the Borrower of any of its existing Obligations to the
Banks, the Issuing Banks or the Administrative Agent hereunder or elsewhere.
SECTION 12.3. REMEDIES. In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans and other Obligations pursuant
to Section 12.1, each Bank, upon notice to the other Banks, if owed any amount
with respect to the Loans or the Reimbursement Obligations, may proceed to
protect and enforce its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including, without limitation, as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
legal or equitable right of such Bank, any recovery being subject to the terms
of Section 29 hereof. No remedy herein conferred upon any Bank or the
Administrative Agent or the holder of any Note is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
SECTION 13. SETOFF. Regardless of the adequacy of any collateral,
during the continuance of an Event of Default, any deposits or other sums
credited by or due from any Bank to the Borrower and any securities or other
property of the Borrower in the possession of such Bank may be applied to or set
off against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to the Banks or the Administrative Agent.
Any amounts set off pursuant to this Section 13 shall be distributed ratably in
accordance with Section 29 among all of the Banks by the Bank setting off such
amounts. If any Bank fails to share such setoff ratably, the Administrative
Agent shall have the right to withhold such Bank's share of the Borrower's
payments until each of the Banks shall have, in the aggregate, received a pro
rata repayment.
69
63
SECTION 14. EXPENSES. Whether or not the transactions contemplated
herein shall be consummated, the Borrower hereby promises to reimburse the
Administrative Agent for all reasonable out-of-pocket fees and disbursements
(including all reasonable attorneys' fees) incurred or expended in connection
with the preparation, filing or recording, or interpretation of this Agreement,
the other Loan Documents, or any amendment, modification, approval, consent or
waiver hereof or thereof. The Borrower further promises to reimburse the
Administrative Agent and the Banks for all reasonable out-of-pocket fees and
disbursements (including all reasonable legal fees and the allocable cost of
in-house attorneys' fees) incurred or expended in connection with the
enforcement of any Obligations or the satisfaction of any indebtedness of the
Borrower hereunder or under any other Loan Document, or in connection with any
litigation, proceeding or dispute hereunder in any way related to the credit
hereunder. The Borrower also promises to pay the Administrative Agent all
reasonable out-of-pocket fees and disbursements, incurred or expended in
connection with the Competitive Bid Loan procedure under Section 4 hereof.
SECTION 15. THE ADMINISTRATIVE AGENT.
SECTION 15.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby
irrevocably appoints and authorizes MGT to act as Administrative Agent,
provided, however, the Administrative Agent is hereby authorized to serve only
as administrative and documentation agent for the Banks and to exercise such
powers as are reasonably incidental thereto and as are set forth in this
Agreement and the other Loan Documents. The Administrative Agent hereby
acknowledges that it does not have the authority to negotiate any agreement
which would bind the Banks or agree to any amendment, waiver or modification of
any of the Loan Documents or bind the Banks except as set forth in this
Agreement or the Loan Documents. Except as provided in this Agreement, and in
the other Loan Documents, the Administrative Agent shall take action or refrain
from acting only upon instructions of the Banks. It is agreed that the duties,
rights, privileges and immunities of the Issuing Banks, in their capacity as
issuers of Letters of Credit hereunder, shall be identical to the duties,
rights, privileges and immunities of the Administrative Agent as provided in
this Section 15. The Administrative Agent shall not have any duties or
responsibilities or any fiduciary relationship with any Bank except those
expressly set forth in this Agreement and the other Loan Documents. Neither the
Administrative Agent nor any of its affiliates shall be responsible to the Banks
for any recitals, statements, representations or warranties made by the Borrower
or any other Person whether contained herein or otherwise or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, the other Loan Documents or any other document referred to or
provided for herein or therein or for any failure by the Borrower or any other
Person to perform its obligations hereunder or thereunder or in respect of the
Notes. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent,
the Agents and any of their directors, officers, employees or agents shall not
be responsible for any action taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct. The Administrative Agent in its separate
capacity as a Bank shall have the same rights and powers hereunder as any other
Bank.
SECTION 15.2. ACTIONS BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement as reasonably deemed
70
64
appropriate unless it shall first have received the consent of the Majority
Banks (or, when expressly required hereby, all of the Banks), and shall be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any of the Loan Documents in accordance with the instruction of the Majority
Banks (or, when expressly required hereby or thereby, all of the Banks), and
such instruction and any action taken or failure to act pursuant thereto shall
be binding upon the Banks and all future holders of the Notes or any Letter of
Credit Participation.
SECTION 15.3. INDEMNIFICATION. Without limiting the obligations of the
Borrower hereunder or under any other Loan Document, the Banks agree to
indemnify the Administrative Agent, its affiliates and its respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
ratably in accordance with their respective Commitment Percentages for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any other Loan Document or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or the enforcement
of any of the terms hereof or thereof or of any such other documents; provided,
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Administrative Agent (or
any agent thereof) and provided further that no Bank shall be liable with
respect to acts of Section 20 Subsidiaries of other Banks, IT BEING THE INTENT
OF THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR
THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.
SECTION 15.4. REIMBURSEMENT. Without limiting the provisions of
Sections 5.1(a), 5.13, and 13, the Administrative Agent shall not be obliged to
make available to any Person any sum which the Administrative Agent is expecting
to receive for the account of that Person until the Administrative Agent has
determined that it has received that sum. The Administrative Agent may, however,
disburse funds prior to determining that the sums which the Administrative Agent
expects to receive have been finally and unconditionally paid to the
Administrative Agent, if the Administrative Agent wishes to do so. If and to the
extent that the Administrative Agent does disburse funds and it later becomes
apparent that the Administrative Agent did not then receive a payment in an
amount equal to the sum paid out, then any Person to whom the Administrative
Agent made the funds available shall, on demand from the Administrative Agent,
refund to the Administrative Agent the sum paid to that Person. If, in the
opinion of the Administrative Agent, the distribution of any amount received by
it in such capacity hereunder or under the other Loan Documents might involve it
in liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be determined by
such court.
71
65
SECTION 15.5. DOCUMENTS. The Administrative Agent will forward to each
Bank, promptly after receipt thereof, a copy of each notice or other document
furnished to the Administrative Agent for such Bank hereunder; provided,
however, that, notwithstanding the foregoing, the Administrative Agent may
furnish to the Banks a monthly summary with respect to Letters of Credit issued
hereunder in lieu of copies of the related Letter of Credit Applications.
SECTION 15.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.
Each Bank represents that it has, independently and without reliance on the
Administrative Agent, the Agents or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of the Borrower and the Guarantors and the
decision to enter into this Agreement and the other Loan Documents and agrees
that it will, independently and without reliance upon the Administrative Agent,
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action under this Agreement or any other Loan
Document. Except as herein expressly provided to the contrary, the
Administrative Agent shall not be required to keep informed as to the
performance or observance by the Borrower and the Guarantors of this Agreement,
the other Loan Documents or any other document referred to or provided for
herein or therein or by any other Person of any other agreement or to make
inquiry of, or to inspect the properties or books of, any Person. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning any person which may come into the
possession of the Administrative Agent or any of their affiliates. Each Bank
shall have access to all documents relating to the Administrative Agent's
performance of their duties hereunder at such Bank's request. Unless any Bank
shall promptly object to any action taken by the Administrative Agent hereunder
of which such Bank has actual knowledge (other than actions which require the
prior consent of such Bank in accordance with the terms hereof or to which the
provisions of Section 15.8 are applicable and other than actions which
constitute gross negligence or willful misconduct by the Administrative Agent),
such Bank shall be presumed to have approved the same.
SECTION 15.7. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving 60 days' prior written notice thereof to
the Banks and the Borrower. Upon any such resignation, the Banks (other than the
resigning Administrative Agent) shall have the right to appoint a successor
Administrative Agent from among the Banks. If no successor to the Administrative
Agent shall have been so appointed by the Banks and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent from among the remaining
Banks, which shall be a financial institution having a combined capital and
surplus in excess of $1,000,000,000. Upon the acceptance of any appointment as
the Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After the retiring Administrative Agent's
resignation, the provisions of this Agreement shall continue in effect for its
benefit in respect of any actions taken or omitted to be
72
66
taken by it while it was acting as the Administrative Agent. Any new Issuing
Bank appointed pursuant to this Section 15.7 shall immediately issue new Letters
of Credit in place of Letters of Credit previously issued or, if acceptable to
the resigning Issuing Bank, issue letters of credit in favor of the resigning
Issuing Bank as security for the outstanding Letters of Credit and shall in due
course replace all Letters of Credit previously issued by the resigning Issuing
Bank.
SECTION 15.8. ACTION BY THE BANKS, CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any action to be taken (including the giving of notice) may be taken, any
consent or approval required or permitted by this Agreement or any other Loan
Document to be given by the Banks may be given, any term of this Agreement, any
other Loan Document or any other instrument, document or agreement related to
this Agreement or the other Loan Documents or mentioned therein may be amended,
and the performance or observance by the Borrower or any other Person of any of
the terms thereof and any Default or Event of Default (as defined in any of the
above-referenced documents or instruments) may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Majority Banks; provided, however, that no such consent
or amendment which affects the rights, duties or liabilities of the
Administrative Agent or any Issuing Bank shall be effective without the written
consent of the Administrative Agent or such Issuing Bank, as the case may be.
Notwithstanding the foregoing, no amendment, waiver or consent shall do any of
the following unless in writing and signed by ALL of the Banks (a) increase the
principal amount of the Total Commitment (or subject any Bank to any additional
obligations), (b) reduce the principal of or interest on the Notes (including,
without limitation, interest on overdue amounts) or any fees payable hereunder,
(c) postpone any date fixed for any payment in respect of principal or interest
(including, without limitation, interest on overdue amounts) on the Notes or any
fee hereunder; (d) change the definition of "Majority Banks" or number of Banks
which shall be required for the Banks or any of them to take any action under
the Loan Documents; (e) amend this Section 15.8; (f) change the Commitment
Percentage of any Bank, except as permitted under Section 20 hereof, (g) change
the Total Commitment Percentage of any Bank, or (h) release the Borrower or any
Guarantor from its obligations hereunder (except as expressly set forth herein).
SECTION 16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Banks, the Agents, the Issuing Banks, and the Administrative Agent
and their affiliates, as well as the Banks' and the Administrative Agent's and
their affiliates' shareholders, directors, agents, officers, subsidiaries and
affiliates, from and against all damages, losses, settlement payments,
obligations, liabilities, claims, suits, penalties, assessments, citations,
directives, demands, judgments, actions or causes of action, whether statutorily
created or under the common law, and reasonable costs and expenses incurred,
suffered, sustained or required to be paid by an indemnified party by reason of
or resulting from the transactions contemplated hereby, except any of the
foregoing which result from the gross negligence or willful misconduct of any
indemnified party. In any investigation, enforcement matter, proceeding or
litigation, or the preparation therefor, the Banks and the Administrative Agent
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. In the event of the commencement of any such proceeding or
litigation against the Banks or Administrative Agent by third parties, the
Borrower shall be entitled to participate in such proceeding or litigation with
counsel of their choice at their expense, provided that such counsel shall be
reasonably satisfactory to the Banks or
73
67
Administrative Agent. The covenants of this Section 16 shall survive payment or
satisfaction of payment of amounts owing with respect to any Note or any other
Loan Document and satisfaction of all the Obligations hereunder, IT BEING THE
INTENT OF THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE
INDEMNIFIED FOR THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.
74
68
SECTION 17. WITHHOLDING TAXES. The Borrower hereby agrees that:
(a) Any and all payments made by the Borrower hereunder shall
be made free and clear of, and without deduction for, any and all
present or future taxes, levies, fees, duties, imposts, deductions,
charges or withholdings of any nature whatsoever, excluding, in the
case of the Administrative Agent or the Banks or any holder of the
Notes, (i) taxes imposed on, or measured by, its net income or profits,
(ii) franchise taxes imposed on it, (iii) taxes imposed by any
jurisdiction as a direct consequence of it, or any of its affiliates,
having a present or former connection with such jurisdiction,
including, without limitation, being organized, existing or qualified
to do business, doing business or maintaining a permanent establishment
or office in such jurisdiction, and (iv) taxes imposed by reason of its
failure to comply with any applicable certification, identification,
information, documentation or other reporting requirement (all such
non-excluded taxes being hereinafter referred to as "Indemnifiable
Taxes"). In the event that any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of
any Indemnifiable Taxes pursuant to any applicable law, or governmental
rule or regulation, then the Borrower will (i) direct to the relevant
taxing authority the full amount required to be so withheld or
deducted, (ii) forward to the Administrative Agent for delivery to the
applicable Bank an official receipt or other documentation satisfactory
to the Administrative Agent and the applicable Bank evidencing such
payment to such taxing authority, and (iii) direct to the
Administrative Agent for the account of the relevant Banks such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each relevant Bank will equal the full
amount such Bank would have received had no such withholding or
deduction (including any Indemnifiable Taxes on such additional
amounts) been required. Moreover, if any Indemnifiable Taxes are
directly asserted against the Administrative Agent or any Bank with
respect to any payment received by the Administrative Agent or such
Bank by reason of the Borrower's failure to properly deduct and
withhold such Indemnifiable Taxes from such payment, the Administrative
Agent or such Bank may pay such Indemnifiable Taxes and the Borrower
will promptly pay all such additional amounts (including any penalties,
interest or reasonable expenses) as is necessary in order that the net
amount received by such Person after the payment of such Indemnifiable
Taxes (including any Indemnifiable Taxes on such additional amount)
shall equal the amount such Person would have received had not such
Indemnifiable Taxes been asserted. Any such payment shall be made
promptly after the receipt by the Borrower from the Administrative
Agent or such Bank, as the case may be, of a written statement setting
forth in reasonable detail the amount of the Indemnifiable Taxes and
the basis of the claim.
(b) The Borrower shall pay any present or future stamp or
documentary taxes or any other excise or any other similar levies which
arise from any payment made hereunder or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrower hereby indemnifies and holds harmless the
Administrative Agent and each Bank for the full amount of Indemnifiable
Taxes or Other Taxes
75
69
(including, without limitation, any Indemnifiable Taxes or Other Taxes
imposed on amounts payable under this Section 17) paid by the
Administrative Agent or such Bank, as the case may be, and any
liability (including penalties, interest and reasonable expenses)
arising therefrom or with respect thereto, by reason of the Borrower's
failure to properly deduct and withhold Indemnifiable Taxes pursuant to
paragraph (a) above or to properly pay Other Taxes pursuant to
paragraph (b) above. Any indemnification payment from the Borrower
under the preceding sentence shall be made promptly after receipt by
the Borrower from the Administrative Agent or Bank of a written
statement setting forth in reasonable detail the amount of such
Indemnifiable Taxes or such Other Taxes, as the case may be, and the
basis of the claim.
(d) If the Borrower pays any amount under this Section 17 to
the Administrative Agent or any Bank and such payee knowingly receives
a refund of any taxes with respect to which such amount was paid, the
Administrative Agent or such Bank, as the case may be, shall pay to the
Borrower the amount of such refund promptly following the receipt
thereof by such payee.
(e) In the event any taxing authority notifies the Borrower or
any Guarantor that any of them has improperly failed to deduct or
withhold any taxes (other than Indemnifiable Taxes) from a payment made
hereunder to the Administrative Agent or any Bank, the Borrower shall
timely and fully pay such taxes to such taxing authority.
(f) The Administrative Agent or the Banks shall, upon the
request of the Borrower, take reasonable measures to avoid or mitigate
the amount of Indemnifiable Taxes required to be deducted or withheld
from any payment made hereunder if such measures can be taken without
such Person in its sole judgment suffering any legal, regulatory or
economic disadvantage.
(g) Without prejudice to the survival of any other agreement
of the parties hereunder, the agreements and obligations of the
Borrower contained in this Section 17 shall survive the payment in full
of the Obligations.
SECTION 18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SECTION 18.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The
Borrower acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Borrower or one or
more of its Subsidiaries, in connection with this Agreement or otherwise, by a
Section 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the
Administrative Agent and each Bank any information delivered to such Section 20
Subsidiary by the Borrower or any of its Subsidiaries, and (b) the
Administrative Agent and each Bank to share with such Section 20 Subsidiary any
information delivered to the Administrative Agent or such Bank by the Borrower
or any of its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Bank to enter into this Agreement; it being understood, in each
case, that any such Section 20 Subsidiary receiving such information shall be
bound by the confidentiality provisions of this Agreement. Such authorization
shall survive the payment and satisfaction in full of all of Obligations.
76
70
SECTION 18.2. CONFIDENTIALITY. Each of the Banks and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrower or any of its Subsidiaries pursuant to this Agreement that is
identified by such Person as being confidential at the time the same is
delivered to the Banks or the Administrative Agent, provided that nothing herein
shall limit the disclosure of any such information (a) after such information
shall have become public other than through a violation of this Section 18, (b)
to the extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Banks or the Administrative Agent, (d) to bank examiners
or any other regulatory authority having jurisdiction over any Bank or the
Administrative Agent, or to auditors or accountants, (e) to the Administrative
Agent, any Bank or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, the Administrative Agent or
any Section 20 Subsidiary is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank as provided in Section 18.1 or (h) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the provisions of Section 20.
SECTION 18.3. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Banks and the Administrative Agent
shall, prior to disclosure thereof, notify the Borrower of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental agency)
or pursuant to legal process.
SECTION 18.4. OTHER. In no event shall any Bank or the Administrative
Agent be obligated or required to return any materials furnished to it or any
Section 20 Subsidiary by the Borrower or any of its Subsidiaries. The
obligations of each Bank under this Section 18 shall supersede and replace the
obligations of such Bank under any confidentiality letter in respect of this
financing signed and delivered by such Bank to the Borrower prior to the date
hereof and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement Obligations
from any Bank.
SECTION 19. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
all covenants, agreements, representations and warranties made herein, in the
other Loan Documents or in any documents or other papers delivered by or on
behalf of the Borrower or any Guarantor pursuant hereto shall be deemed to have
been relied upon by the Banks, the Issuing Banks and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by them, and
shall survive the making by the Banks of the Loans and the issuance, extension
or renewal of any Letters of Credit by any Issuing Bank, as herein contemplated,
and shall continue in full force and effect so long as any amount due under this
Agreement, any Obligation, any Letter of Credit or any Note remains outstanding
and unpaid or any Bank has any obligation to make any Loans or any Issuing Bank
has any obligation to issue, extend, or renew any Letters of Credit hereunder.
All statements contained in any certificate or other paper
77
71
delivered by or on behalf of the Borrower pursuant hereto or in connection with
the transactions contemplated hereby shall constitute representations and
warranties by the Borrower hereunder.
SECTION 20. ASSIGNMENT AND PARTICIPATION. It is understood and agreed
that each Bank shall have the right to assign at any time all or a portion of
its Commitment Percentage and interests in the risk relating to the Loans,
outstanding Letters of Credit and its Commitment hereunder in an amount equal to
or greater than $5,000,000 (or, if a Bank's Commitment is less than $5,000,000,
in a minimum amount equal to such Bank's Commitment, provided that prior to any
Commitment reductions pursuant to Section 2.3, such Bank's Commitment was at
least $10,000,000) to additional banks or other financial institutions with the
prior written approval of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower, which approvals shall not
be unreasonably withheld. Any Bank may at any time, and from time to time,
assign to any branch, lending office, or affiliate or such Bank all or any part
of its rights and obligations under the Loan Documents by notice to the
Administrative Agent and the Borrower. It is further agreed that each bank or
other financial institution which executes and delivers to the Administrative
Agent and the Borrower hereunder an Assignment and Acceptance substantially in
the form of Exhibit G hereto (an "Assignment and Acceptance") together with an
assignment fee in the amount of $3,500 payable by the assigning Bank to the
Administrative Agent, shall, on the date specified in such Assignment and
Acceptance, become a party to this Agreement and the other Loan Documents for
all purposes of this Agreement and the other Loan Documents, and its portion of
the Commitment, the Loans and Letters of Credit shall be as set forth in such
Assignment and Acceptance. The Bank assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and the other Loan Documents. Upon the
execution and delivery of such Assignment and Acceptance, (a) the Borrower shall
issue to the assignee bank or other financial institution Notes in the amount of
such bank's or other financial institution's Commitment dated the date of the
assignment or such other date as may be specified by the Administrative Agent,
and otherwise completed in substantially the form of Exhibits A or B, and to the
extent any assigning Bank has retained a portion of its obligations hereunder, a
replacement Syndicated Note, to the assigning Bank reflecting its assignment;
(b) to the extent applicable, the Borrower shall issue a Competitive Bid Note in
substantially the form of Exhibit C (and a replacement Competitive Bid Note) or
the Administrative Agent shall make appropriate entries on the Competitive Bid
Loan Accounts to reflect such assignment of Competitive Bid Loan(s); (c) the
Administrative Agent shall distribute to the Borrower, the Banks and such bank
or financial institution a revised Schedule 1 reflecting such changes; and (d)
this Agreement shall be deemed to be appropriately amended to reflect (i) the
status of the bank or financial institution as a party hereto and (ii) the
status and rights of the Banks hereunder.
Each Bank shall also have the right to grant participations to one or
more banks or other financial institutions in its Commitment, the Loans and
outstanding Letters of Credit. The documents evidencing any such participation
shall limit such participating bank's or financial institution's voting rights
with respect to this Agreement to the matters set forth in Section 15.8 which
require the approval of all Banks.
78
72
Notwithstanding the foregoing, no assignment or participation shall
operate to increase the Total Commitment hereunder or otherwise alter the
substantive terms of this Agreement, and no Bank which retains a Commitment
hereunder shall have a Commitment of less than $10,000,000, as such amount may
be reduced upon reductions in the Total Commitment pursuant to Section 2.3
hereof.
Anything contained in this Section 20 to the contrary notwithstanding,
any Bank may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or under any of the
other Loan Documents.
The Borrower agrees that in addition to disclosures made in accordance
with standard and customary banking practices any Bank may disclose information
obtained by such Bank pursuant to this Agreement to assignees or participants
and potential assignees or participants hereunder; provided that such assignees
or participants or potential assignees or participants shall agree to be bound
by Section 18 hereof.
SECTION 21. PARTIES IN INTEREST. All the terms of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto
and thereto; provided, that the Borrower shall not assign or transfer its rights
or obligations hereunder or thereunder without the prior written consent of each
of the Banks.
SECTION 22. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the other Loan Documents shall be in writing
and shall be delivered in hand, mailed by United States first class mail,
postage prepaid, or sent by telegraph, telex or facsimile and confirmed by
letter, addressed as follows:
(a) if to the Borrower or the Guarantors, at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; or
(b) if to BOA, at Bank of America, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Managing Director, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; or
(c) if to MGT, ▇.▇. ▇▇▇▇▇▇ Securities Inc. or the
Administrative Agent at ▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, facsimile number (212)
648-5018; or
(d) if to any Bank, at the last address provided to the
Administrative Agent;
or such other address for notice as shall have last been furnished in writing to
the Person giving the notice.
79
73
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer, (b) if sent by registered or certified first-class mail,
postage prepaid, five Business Days after the posting thereof, and (c) if sent
by telex, facsimile, or cable, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
SECTION 23. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Banks, the Issuing
Banks or the Administrative Agent would otherwise have. The captions in this
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof. This Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
SECTION 24. CONSENTS, ETC. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in this
Section 24, subject to the provisions of Section 15.8. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement to be given by the Banks may
be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower and the Majority Banks. To the
extent permitted by law, no course of dealing or delay or omission on the part
of any of the Banks, the Issuing Banks or the Administrative Agent in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
SECTION 25. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE BORROWER AND THE
GUARANTORS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. THE BORROWER AND EACH OF THE GUARANTORS EACH (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK, ANY ISSUING BANK,
80
74
THE ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH BANK, SUCH ISSUING BANK, THE ADMINISTRATIVE AGENT OR SUCH AGENT WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE BANKS, AND THE ISSUING BANKS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BECAUSE OF, AMONG OTHER THINGS, THE BORROWER'S AND THE GUARANTORS' WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SECTION 26. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE
OF NEW YORK AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK. THE BORROWER AND THE GUARANTORS CONSENT AND AGREE THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER IN ACCORDANCE WITH LAW
AT THE ADDRESS SPECIFIED IN SECTION 22. THE BORROWER AND EACH OF THE GUARANTORS
HEREBY WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
SECTION 27. SEVERABILITY. The provisions of this Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
SECTION 28. GUARANTY.
SECTION 28.1. GUARANTY. For value received and hereby acknowledged and
as an inducement to the Banks and the Issuing Banks to make the Loans available
to the Borrower, and issue, extend or renew Letters of Credit for the account of
the Borrower, each Guarantor hereby unconditionally and irrevocably guarantees
(a) the full punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrower now or hereafter
existing whether for principal, interest, fees, expenses or otherwise, and (b)
the strict performance and observance by the Borrower of all agreements,
warranties and covenants applicable to the Borrower in the Loan Documents and
(c) the obligations of the Borrower under the Loan Documents (such Obligations
collectively being hereafter referred to as the "Guaranteed Obligations").
81
75
SECTION 28.2. GUARANTY ABSOLUTE. Each of the Guarantors guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
hereof, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Bank, any
Issuing Bank or the Administrative Agent with respect thereto. The liability of
the Guarantors under the guaranty granted under this Agreement with regard to
the Guaranteed Obligations shall be absolute and unconditional irrespective of:
(a) any change in the time, manner or place of payment of, or
in any other term of, all or any of its Guaranteed Obligations or any
other amendment or waiver of or any consent to departure from this
Agreement or any other Loan Document (with regard to such Guaranteed
Obligations);
(b) any release or amendment or waiver of or consent to
departure from any other guaranty for all or any of its Guaranteed
Obligations;
(c) any change in ownership of the Borrower;
(d) any acceptance of any partial payment(s) from the Borrower
or any other Guarantor; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of its
Obligations under any Loan Document.
The guaranty under this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any Guaranteed
Obligation is rescinded or must otherwise be returned by the Banks, the Issuing
Banks or the Administrative Agent upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
SECTION 28.3. EFFECTIVENESS; ENFORCEMENT. The guaranty under this
Agreement shall be effective and shall be deemed to be made with respect to each
Loan and each Letter of Credit as of the time it is made, issued or extended, or
becomes a Letter of Credit under this Agreement, as applicable. No invalidity,
irregularity or unenforceability by reason of any bankruptcy or similar law, or
any law or order of any government or agency thereof purporting to reduce, amend
or otherwise affect any liability of the Borrower, and no defect in or
insufficiency or want of powers of the Borrower or irregular or improperly
recorded exercise thereof, shall impair, affect, be a defense to or claim
against such guaranty. The guaranty under this Agreement is a continuing
guaranty and shall (a) survive any termination of this Agreement, and (b) remain
in full force and effect until payment in full of, and performance of, all
Guaranteed Obligations and all other amounts payable under this Agreement.
Notwithstanding anything set forth in this Section 28 to the contrary, Sanifill
shall be released from its guaranty obligations upon the satisfaction (as
determined in the Administrative Agent's judgment and evidenced by a release
executed by the Administrative Agent) of the Sanifill Convertible Subordinated
Debt. The guaranty under this Agreement is made for the benefit of the
Administrative Agent, the Issuing Banks and the Banks and their successors and
assigns, and may be enforced from time to time as often as occasion therefor may
arise and without requirement on the part of the Administrative Agent, the
Issuing
82
76
Banks or the Banks first to exercise any rights against the Borrower, or to
resort to any other source or means of obtaining payment of any of the said
obligations or to elect any other remedy.
SECTION 28.4. WAIVER. Except as otherwise specifically provided in any
of the Loan Documents, each of the Guarantors hereby waives promptness,
diligence, protest, notice of protest, all suretyship defenses, notice of
acceptance and any other notice with respect to any of its Guaranteed
Obligations and the guaranty under this Agreement and any requirement that the
Banks, the Issuing Banks or the Administrative Agent protect, secure, perfect
any security interest or lien or any property subject thereto or exhaust any
right or take any action against the Borrower or any other Person. Each of the
Guarantors also irrevocably waives, to the fullest extent permitted by law, all
defenses which at any time may be available to it in respect of its Guaranteed
Obligations by virtue of any statute of limitations, valuation, stay, moratorium
law or other similar law now or hereafter in effect.
SECTION 28.5. EXPENSES. Each of the Guarantors hereby promises to
reimburse (a) the Administrative Agent for all reasonable out-of-pocket fees and
disbursements (including all reasonable attorneys' fees), incurred or expended
in connection with the preparation, filing or recording, or interpretation of
the guaranty under this Agreement, the other Loan Documents to which such
Guarantor is a party, or any amendment, modification, approval, consent or
waiver hereof or thereof, and (b) the Administrative Agent, the Issuing Banks
and the Banks and their respective affiliates for all reasonable out-of-pocket
fees and disbursements (including reasonable attorneys' fees), incurred or
expended in connection with the enforcement of its Guaranteed Obligations
(whether or not legal proceedings are instituted). The Guarantors will pay any
taxes (including any interest and penalties in respect thereof) other than the
Banks' taxes based on overall income or profits, payable on or with respect to
the transactions contemplated by the guaranty under this Agreement, each of the
Guarantors hereby agreeing jointly and severally to indemnify each Bank with
respect thereto.
SECTION 28.6. CONCERNING JOINT AND SEVERAL LIABILITY OF THE GUARANTORS.
(a) Each of the Guarantors hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the Borrower, with respect
to the payment and performance of all of its Guaranteed Obligations
(including, without limitation, any Guaranteed Obligations arising
under this Section 28), it being the intention of the parties hereto
that all such Guaranteed Obligations shall be the joint and several
Guaranteed Obligations of such Guarantor and the Borrower without
preferences or distinction among them.
(b) If and to the extent that the Borrower shall fail to make
any payment with respect to any of its Obligations as and when due or
to perform any of its Guaranteed Obligations in accordance with the
terms thereof, then in each such event the applicable Guarantor will
make such payment with respect to, or perform, such Guaranteed
Obligation.
(c) The Guaranteed Obligations of each Guarantor under the
provisions of this Section 28 constitute full recourse obligations of
such Guarantor enforceable against such
83
77
Guarantor to the full extent of its properties and assets, irrespective
of the validity, regularity or enforceability of this Agreement or any
other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Agreement,
each of the Guarantors hereby waives notice of acceptance of its joint
and several liability, notice of any Loans made, or Letters of Credit
issued under this Agreement, notice of any action at any time taken or
omitted by the Administrative Agent, the Issuing Banks or the Banks
under or in respect of any of the Guaranteed Obligations, and,
generally, to the extent permitted by applicable law, all demands,
notices and other formalities of every kind in connection with this
Agreement. Each of the Guarantors hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of
the Guaranteed Obligations, the acceptance of any payment of any of the
Guaranteed Obligations, the acceptance of any partial payment thereon,
any waiver, consent or other action or acquiescence by the
Administrative Agent, the Issuing Banks or the Banks at any time or
times in respect of any Default or Event of Default by the Borrower or
the Guarantors in the performance or satisfaction of any term,
covenant, condition or provision of this Agreement or any other Loan
Document, any and all other indulgences whatsoever by the
Administrative Agent, the Issuing Banks or the Banks in respect of any
of the Guaranteed Obligations, and the taking, addition, substitution
or release, in whole or in part, at any time or times, of any security
for any of the Guaranteed Obligations or the addition, substitution or
release, in whole or in part, of the Borrower or any Guarantor. Without
limiting the generality of the foregoing, each of the Guarantors
assents to any other action or delay in acting or failure to act on the
part of the Banks, the Issuing Banks or the Administrative Agent with
respect to the failure by the Borrower or any Guarantor to comply with
its respective Obligations or Guaranteed Obligations, including,
without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws
or regulations thereunder, which might, but for the provisions of this
Section 28, afford grounds for terminating, discharging or relieving
the Guarantors, in whole or in part, from any of the Guaranteed
Obligations under this Section 28, it being the intention of the
Guarantors that, so long as any of the Guaranteed Obligations hereunder
remain unsatisfied, the Guaranteed Obligations of each of the
Guarantors under this Section 28 shall not be discharged except by
performance and then only to the extent of such performance. The
Guaranteed Obligations of each of the Guarantors under this Section 28
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to the Borrower or any of the Guarantors or the
Banks, the Issuing Banks or the Administrative Agent. The joint and
several liability of each of the Guarantors hereunder shall continue in
full force and effect notwithstanding any absorption, merger,
consolidation, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of the Borrower or the
Guarantors, the Banks, the Issuing Banks or the Administrative Agent.
(e) The Guarantors shall be liable under this Section 28 only
for the maximum amount of such liabilities that can be incurred under
applicable law without rendering this Section 28 voidable under
applicable law relating to fraudulent conveyance and fraudulent
transfer, and not for any greater amount. Accordingly, if any
obligation under any
84
78
provision under this Section 28 shall be declared to be invalid or
unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Guarantors, the Administrative Agent,
the Issuing Banks and the Banks that any balance of the obligation
created by such provision and all other obligations of the Guarantors
under this Section 28 to the Banks, the Issuing Banks or the
Administrative Agent shall remain valid and enforceable, and that all
sums not in excess of those permitted under applicable law shall remain
fully collectible by the Banks, the Issuing Banks and the
Administrative Agent from the Borrower or the Guarantors, as the case
may be.
(f) The provisions of this Section 28 are made for the benefit
of the Administrative Agent, the Issuing Banks and the Banks and their
successors and assigns, and may be enforced in good faith by them from
time to time against the Guarantors as often as occasion therefor may
arise and without requirement on the part of the Administrative Agent,
the Issuing Banks or the Banks first to marshal any of their claims or
to exercise any of their rights against the Borrower or the Guarantors
or to exhaust any remedies available to them against the Borrower or
the Guarantors or to resort to any other source or means of obtaining
payment of any of the obligations hereunder or to elect any other
remedy. The provisions of this Section 28 shall remain in effect until
all of the Guaranteed Obligations shall have been paid in full or
otherwise fully satisfied and the Commitments have expired and all
outstanding Letters of Credit have expired, matured or otherwise been
terminated. If at any time, any payment, or any part thereof, made in
respect of any of the Guaranteed Obligations, is rescinded or must
otherwise be restored or returned by the Banks, the Issuing Banks or
the Administrative Agent upon the insolvency, bankruptcy or
reorganization of the Borrower or any of the Guarantors, or otherwise,
the provisions of this Section 28 will forthwith be reinstated in
effect, as though such payment had not been made.
SECTION 28.7. WAIVER. Until the final payment and performance in full
of all of the Obligations, neither of the Guarantors shall exercise and each of
the Guarantors hereby waives any rights such Guarantor may have against the
Borrower or the other Guarantor arising as a result of payment by such Guarantor
hereunder, by way of subrogation, reimbursement, restitution, contribution or
otherwise, and will not prove any claim in competition with the Administrative
Agent, the Issuing Banks or any Bank in respect of any payment hereunder in any
bankruptcy, insolvency or reorganization case or proceedings of any nature; such
Guarantor will not claim any setoff, recoupment or counterclaim against the
Borrower or the other Guarantor in respect of any liability of the Borrower to
such Guarantor; and such Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the Administrative
Agent, the Issuing Banks or any Bank.
SECTION 28.8. SUBROGATION; SUBORDINATION. The payment of any amounts
due with respect to any indebtedness of the Borrower for money borrowed or
credit received now or hereafter owed to either of the Guarantors is hereby
subordinated to the prior payment in full of all of the Obligations. Each of the
Guarantors agrees that, after the occurrence of any default in the payment or
performance of any of the Obligations, such Guarantor will not demand, ▇▇▇ for
or otherwise attempt to collect any such indebtedness of the Borrower or the
other Guarantor to such Guarantor until all of the Obligations shall have been
paid in full. If, notwithstanding the
85
79
foregoing sentence, either of the Guarantors shall collect, enforce or receive
any amounts in respect of such indebtedness while any Obligations are still
outstanding, such amounts shall be collected, enforced and received by such
Guarantor as trustee for the Banks, the Issuing Banks and the Administrative
Agent and be paid over to the Administrative Agent at Default, for the benefit
of the Banks, the Issuing Banks, and the Administrative Agent on account of the
Obligations without affecting in any manner the liability of such Guarantor
under the other provisions hereof.
SECTION 29. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein,
each payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari
passu among the Banks, in accordance with the aggregate outstanding
principal amount of the Obligations owing to each Bank divided by the
aggregate outstanding principal amount of all Obligations.
(b) Following the occurrence and during the continuance of any
Event of Default, each Bank agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against
any Borrower (pursuant to Section 13 or otherwise), including a secured
claim under Section 506 of the Bankruptcy Code or other security or
interest arising from or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or other similar
law or otherwise, obtain payment (voluntary or involuntary) in respect
of the Notes, Loans, Reimbursement Obligations and other Obligations
held by it (other than pursuant to Section 5.5, Section 5.6 or Section
5.8) as a result of which the unpaid principal portion of the Notes and
the Obligations held by it shall be proportionately less than the
unpaid principal portion of the Notes and Obligations held by any other
Bank, it shall be deemed to have simultaneously purchased from such
other Bank a participation in the Notes and Obligations held by such
other Bank, so that the aggregate unpaid principal amount of the Notes,
Obligations and participations in Notes and Obligations held by each
Bank shall be in the same proportion to the aggregate unpaid principal
amount of the Notes and Obligations then outstanding as the principal
amount of the Notes and other Obligations held by it prior to such
exercise of banker's lien, setoff or counterclaim was to the principal
amount of all Notes and other Obligations outstanding prior to such
exercise of banker's lien, setoff or counterclaim; provided, however,
that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 29 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustments restored without interest. The Borrower
expressly consents to the foregoing arrangements and agrees that any
Person holding such a participation in the Notes and the Obligations
deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Person as fully as if such Person
had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 30. TRANSITIONAL ARRANGEMENTS. Upon the Effective Date (a) this
Agreement shall supersede the Existing Credit Agreement in its entirety, and (b)
the parties
86
80
acknowledge and agree that the Pricing Table set forth herein shall be applied
retroactively to October 29, 1999 to the Loans and Letters of Credit outstanding
under the Existing Credit Agreement; and the Borrower hereby agrees to pay on
December 15, 1999 (i) any facility fees due under the Existing Credit Agreement,
(ii) any incremental amounts due as the result of such retroactive increase to
the extent not paid on or before the Effective Date, and (iii) any other amounts
due under the Existing Credit Agreement.
SECTION 31. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
87
81
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first set forth above.
THE BORROWER AND GUARANTORS:
WASTE MANAGEMENT, INC.
(f/k/a USA Waste Services, Inc.)
By:
----------------------------------
Name:
Title:
SANIFILL, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
WASTE MANAGEMENT HOLDINGS, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
88
82
THE BANKS AND ADMINISTRATIVE AGENT:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Administrative Agent
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
----------------------------------
Name:
Title:
ABN AMRO BANK, N.V.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANCA COMMERCIALE ITALIANA, LOS ANGELES
FOREIGN BRANCH
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
89
83
BANK AUSTRIA AKTIENGESELLSCHAFT
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
----------------------------------
Name:
Title:
BANK OF MONTREAL
By:
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
----------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
----------------------------------
Name:
Title:
90
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
----------------------------------
Name:
Title:
BANK ONE, TEXAS, N.A.
By:
----------------------------------
Name:
Title:
PARIBAS
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
COMERICA BANK
By:
----------------------------------
Name:
Title:
CIBC INC.
By:
----------------------------------
Name:
Title:
91
85
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
----------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By:
----------------------------------
Name:
Title:
92
86
FLEET BANK, N.A.
By:
----------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
----------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By:
----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:
----------------------------------
Name:
Title:
KBC BANK N.V.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
93
87
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
----------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
----------------------------------
Name:
Title:
THE SANWA BANK LIMITED
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
----------------------------------
Name:
Title:
94
88
SUNTRUST BANK, ATLANTA
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
CHASE BANK OF TEXAS, N.A.
By:
----------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
----------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
95
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
----------------------------------
Name:
Title:
ABU DHABI INTERNATIONAL BANK INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
CALIFORNIA BANK AND TRUST
(f/k/a Sumitomo Bank of California)
By:
----------------------------------
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LIMITED, NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By:
----------------------------------
Name:
Title:
96
90
ERSTE BANK
By:
----------------------------------
Name:
Title: