EXHIBIT 10.11
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CREDIT AGREEMENT dated as of July 21, 1999,
as amended and restated as of March 21, 2005
Among
ALLIED WASTE INDUSTRIES, INC.,
ALLIED WASTE NORTH AMERICA, INC.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
and
UBS SECURITIES LLC,
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH,
WACHOVIA BANK, NATIONAL ASSOCIATION,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
--------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as
Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................... 2
SECTION 1.02. Classification of Loans and Borrowings............................. 46
SECTION 1.03. Terms Generally.................................................... 46
SECTION 1.04. Accounting Terms; GAAP............................................. 47
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................ 47
SECTION 2.02. Loans and Borrowings............................................... 48
SECTION 2.03. Requests for Borrowings............................................ 48
SECTION 2.04. Swingline Loans.................................................... 49
SECTION 2.05. Letters of Credit.................................................. 51
SECTION 2.06. Funding of Borrowings.............................................. 58
SECTION 2.07. Interest Elections................................................. 58
SECTION 2.08. Termination and Reduction of Commitments; Return of
Tranche A Credit-Linked Deposits........................... 60
SECTION 2.09. Repayment of Loans; Evidence of Debt............................... 61
SECTION 2.10. Amortization of Term Loans and Tranche A Credit-Linked Deposits.... 62
SECTION 2.11. Prepayment of Loans................................................ 63
SECTION 2.12. Fees............................................................... 66
SECTION 2.13. Interest........................................................... 67
SECTION 2.14. Alternate Rate of Interest......................................... 68
SECTION 2.15. Increased Costs.................................................... 69
SECTION 2.16. Break Funding Payments............................................. 70
SECTION 2.17. Taxes.............................................................. 71
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs......... 74
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..................... 76
SECTION 2.20. Credit-Linked Deposit Account...................................... 76
SECTION 2.21. Incremental Term Loans............................................. 77
SECTION 2.22. Funded Letter of Credit Facility................................... 79
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................................... 81
SECTION 3.02. Authorization...................................................... 81
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SECTION 3.03. Enforceability..................................................... 81
SECTION 3.04. Governmental Approvals............................................. 82
SECTION 3.05. Financial Statements............................................... 82
SECTION 3.06. No Material Adverse Change......................................... 82
SECTION 3.07. Title to Properties; Possession Under Leases....................... 83
SECTION 3.08. Subsidiaries; Other Equity Investments............................. 83
SECTION 3.09. Litigation; Compliance with Laws................................... 84
SECTION 3.10. Agreements......................................................... 84
SECTION 3.11. Federal Reserve Regulations........................................ 84
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act......... 84
SECTION 3.13. Tax Returns........................................................ 84
SECTION 3.14. No Material Misstatements.......................................... 85
SECTION 3.15. Employee Benefit Plans............................................. 85
SECTION 3.16. Environmental Matters.............................................. 85
SECTION 3.17. Insurance.......................................................... 86
SECTION 3.18. Labor Matters...................................................... 86
SECTION 3.19. Solvency........................................................... 87
SECTION 3.20. Intellectual Property.............................................. 87
SECTION 3.21. Senior Indebtedness................................................ 87
SECTION 3.22. Security Interests................................................. 87
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date......................................... 88
SECTION 4.02. Each Credit Event.................................................. 92
SECTION 4.03. Determinations Under Section 4.01.................................. 93
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............................... 93
SECTION 5.02. Insurance.......................................................... 94
SECTION 5.03. Obligations and Taxes.............................................. 95
SECTION 5.04. Financial Statements, Reports, Etc................................. 95
SECTION 5.05. Litigation and Other Notices....................................... 97
SECTION 5.06. Employee Benefits.................................................. 98
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.......... 98
SECTION 5.08. Environmental Laws................................................. 98
SECTION 5.09. Preparation of Environmental Reports............................... 99
SECTION 5.10. Further Assurances................................................. 99
SECTION 5.11. Compliance with Terms of Leaseholds................................ 101
SECTION 5.12. Performance of Material Agreements................................. 101
SECTION 5.13. Information Regarding Collateral................................... 102
SECTION 5.14. Casualty and Condemnation.......................................... 102
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SECTION 5.15. Compliance with Laws............................................... 102
SECTION 5.16. Use of Proceeds and Letters of Credit.............................. 102
SECTION 5.17. Interest Rate Protection........................................... 103
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities............................ 103
SECTION 6.02. Liens.............................................................. 107
SECTION 6.03. No Other Negative Pledge........................................... 109
SECTION 6.04. Sale and Lease-Back Transactions................................... 110
SECTION 6.05. Investments, Loans, Guarantees and Acquisitions.................... 110
SECTION 6.06. Mergers, Consolidations, Sales of Assets and Acquisitions.......... 113
SECTION 6.07. Hedging Agreements................................................. 115
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.............. 115
SECTION 6.09. Transactions with Affiliates....................................... 117
SECTION 6.10. Business of Allied Waste, Borrower and Subsidiaries................ 118
SECTION 6.11. Other Indebtedness and Agreements.................................. 119
SECTION 6.12. Amendment of Material Documents.................................... 120
SECTION 6.13. Interest Coverage Ratio............................................ 120
SECTION 6.14. Leverage Ratio..................................................... 121
SECTION 6.15. Capital Expenditures............................................... 121
SECTION 6.16. Designation of Unrestricted Subsidiaries........................... 121
SECTION 6.17. Commingling of Accounts............................................ 122
ARTICLE VII
Events of Default; Right To Cure
SECTION 7.01. Events of Default.................................................. 122
SECTION 7.02. Borrower's Right to Cure........................................... 125
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................ 128
SECTION 9.02. Waivers; Amendments................................................ 129
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................. 132
SECTION 9.04. Successors and Assigns............................................. 134
SECTION 9.05. Survival........................................................... 139
SECTION 9.06. Counterparts; Integration; Effectiveness........................... 140
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SECTION 9.07. Severability....................................................... 140
SECTION 9.08. Right of Setoff.................................................... 140
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process......... 141
SECTION 9.10. WAIVER OF JURY TRIAL............................................... 141
SECTION 9.11. Headings........................................................... 142
SECTION 9.12. Confidentiality.................................................... 142
SECTION 9.13. Interest Rate Limitation........................................... 143
SECTION 9.14. Securitization Vehicles............................................ 143
SECTION 9.15. Patriot Act........................................................ 144
SCHEDULES:
Schedule 2.01 -- Commitments; Tranche A Credit-Linked Deposits
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.07 -- Landfills
Schedule 3.08 -- Subsidiaries; Equity Investments
Schedule 3.09 -- Litigation
Schedule 3.15 -- Employee Benefit Plans
Schedule 3.16 -- Environmental Matters
Schedule 3.17 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Investments
Schedule 6.08 -- Required Joint Venture Restricted Payments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Amended and Restated Collateral
Trust Agreement
Exhibit C -- Form of Amended and Restated Indemnity,
Subrogation and Contribution Agreement
Exhibit D -- Form of Amended and Restated Non-Shared
Collateral Pledge Agreement
Exhibit E -- Form of Amended and Restated Non-Shared
Collateral Security Agreement
Exhibit F -- Form of Amended and Restated Parent
Guarantee Agreement
Exhibit G-1 -- Form of Non-Shared Collateral Perfection
Certificate
Exhibit G-2 -- Form of Shared Collateral Perfection
Certificate
Exhibit H -- Form of Amended and Restated Shared
Collateral Pledge Agreement
Exhibit I -- Form of Amended and Restated Shared
Collateral Security Agreement
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Exhibit J -- Form of Amended and Restated Subsidiary
Guarantee Agreement
Exhibit K-1 -- Form of Legal Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Exhibit K-2 -- Form of Legal Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇
Exhibit L -- Form of Portfolio Exemption Certificate
CREDIT AGREEMENT dated as of July 21, 1999, as amended
and restated as of March 21, 2005, among ALLIED WASTE
INDUSTRIES, INC., ALLIED WASTE NORTH AMERICA, INC., the
LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as
Administrative Agent and Collateral Agent, CITICORP NORTH
AMERICA, INC., as Syndication Agent, and UBS Securities LLC,
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS
BRANCH, Wachovia Bank, National Association, DEUTSCHE BANK
TRUST COMPANY AMERICAS and Fleet National Bank, as
Co-Documentation Agents.
On the Effective Date (such term and each other capitalized term
used but not otherwise defined in this preamble having the meaning assigned to
it in Article I below), the Borrower, Allied Waste, the Administrative Agent and
certain of the Lenders entered into this Agreement pursuant to which certain of
the Lenders thereunder agreed to extend credit to the Borrower on a revolving
credit basis and to make term loans to the Borrower. The parties hereto desire
to amend this Agreement and to restate it in its entirety giving effect to such
amendment.
Between February, 2005 and March, 2005, Allied Waste and the
Borrower consummated a series of transactions pursuant to which (a) Allied Waste
issued common stock in an underwritten public offering (the "Common Equity
Offering") for aggregate gross cash proceeds of $100,725,000, (b) Allied Waste
issued its 6.25% Series D Senior Mandatory Convertible Preferred Stock in a
public offering (the "Mandatory Convertible Offering", and together with the
Common Equity Offering, the "Equity Offerings") for aggregate gross cash
proceeds of $600,000,000, (c) the Borrower issued $600,000,000 aggregate
principal amount of 7.25% Senior Notes due 2015 (the "2005 Senior Notes") in a
private offering (the "Senior Note Offering") and (d) the Borrower repurchased
an aggregate principal amount of $551,060,000 of its outstanding 7.625% Senior
Secured Notes due 2006.
On the Restatement Effective Date, (a) this Agreement will be
amended and restated in the form hereof and (b) all loans outstanding under the
Original Credit Agreement will be repaid or exchanged and the lending
commitments under the Original Credit Agreement will be replaced by the
Commitments. The foregoing transactions described in this and the preceding
paragraph shall be collectively referred to herein as the "Recapitalization".
The Borrower has requested the Lenders to extend credit hereunder in
the form of Term Loans to be made on the Restatement Effective Date in an
aggregate principal amount of $1,350,000,000, Tranche A Credit-Linked Deposits
to be made on the Restatement Effective Date in an aggregate amount of
$500,000,000, Revolving Loans, Revolving Letters of Credit and Swingline Loans
to be made or issued at any time and from time to time on or after the
Restatement Effective Date and prior to the Revolving Maturity Date in an
aggregate principal or face amount at any time outstanding not in excess of
$1,575,000,000 and Tranche A Letters of Credit to be issued
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at any time and from time to time on and after the Restatement Effective Date
and prior to the Tranche A Maturity Date in an aggregate amount at any time
outstanding not in excess of $500,000,000, (subject to the limitations set forth
herein).
The proceeds of the Term Loans will be used solely (i) to repay
amounts due or outstanding under the Original Credit Agreement on the
Restatement Effective Date and (ii) to the extent of any amounts remaining
thereafter, to pay fees and expenses incurred in connection with the
Transactions and for other general corporate purposes. The proceeds of Revolving
Loans will be used solely (i) to repay revolving loans under the Original Credit
Agreement and (ii) for other purposes specified in Section 5.16. The proceeds of
Swingline Loans will be used solely for general corporate purposes. Letters of
Credit will be used solely to support payment obligations of the Borrower and
the Subsidiaries incurred in the ordinary course of business.
The Lenders and the Swingline Lenders are willing to extend such
credit and the Issuing Banks are willing to issue Letters of Credit on the terms
and subject to the conditions set forth herein. Accordingly, in consideration of
the mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree that this Agreement shall, upon satisfaction of the
conditions set forth in Section 4.01, be amended and restated to read in its
entirety as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, means that
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquired Business" means (a) any Person substantially all of the
capital stock or other ownership interests of which is acquired after the
Restatement Effective Date by Allied Waste and/or a Restricted Subsidiary and
(b) any assets constituting a discrete business or operating unit acquired on or
after the Restatement Effective Date by Allied Waste or a Restricted Subsidiary,
in each case in accordance with the terms of this Agreement.
"Acquired Indebtedness" means Indebtedness of an Acquired Business
outstanding on the date such Acquired Business was acquired by Allied Waste
and/or one of its Restricted Subsidiaries.
"Acquisition Consideration" means, with respect to any acquisition,
the aggregate amount of consideration paid by the members of the Allied Group in
connection therewith, including, without duplication:
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(1) the aggregate amount of cash paid and the aggregate fair market
value of noncash property delivered by members of the Allied Group in
connection with such acquisition;
(2) the aggregate amount of Indebtedness retained by the Acquired
Business; and
(3) the aggregate amount of Indebtedness of the Acquired Business or
the sellers thereof (other than as referred to in clause (2) above)
assumed by the members of the Allied Group in connection with such
acquisition,
but in any event shall exclude (x) common stock, Preferred Stock (other than
Cash-Pay Preferred Stock) and other Non-Cash-Pay Equity Interests issued by
Allied Waste in connection with such acquisition, (y) payment obligations of
members of the Allied Group based on post-acquisition performance of the
Acquired Business and (z) liabilities for which members of the Allied Group have
received indemnification or other financial assurances from or on behalf of the
transferor (so long as the obligors on such indemnification or other financial
assurances are, in the reasonable opinions of the Initial Lenders and the
Borrower, creditworthy).
"Additional Funded LC Amendment" has the meaning set forth in
Section 2.22.
"Additional Funded LC Commitment" has the meaning set forth in
Section 2.22.
"Additional Funded LC Facility" has the meaning set forth in Section
2.22.
"Additional Funded LC Facility Notice" has the meaning set forth in
Section 2.22.
"Additional Funded LC Lender" has the meaning assigned to such term
in Section 2.22.
"Additional Term Loan Lender" has the meaning assigned to such term
in Section 2.21(a).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent and collateral agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
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"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Allied Group" means, collectively, Allied Waste and Allied Waste's
Restricted Subsidiaries (including the Borrower), and a "member" of the Allied
Group means Allied Waste or any of Allied Waste's Restricted Subsidiaries.
"Allied Guarantee" means the supplemental indenture dated as of July
21, 1999 among Allied Waste, AWNA and JPMorgan Chase Bank, N.A. (formerly Chase
Bank of Texas, N.A.), as Trustee, pursuant to which Allied Waste and AWNA
guarantee the BFI Indenture Debt.
"Allied Waste" means Allied Waste Industries, Inc., a Delaware
corporation.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate.
"Apollo" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied Group).
"Applicable Margin" means, for any day (a) with respect to any ABR
Term Loan (i) 1.00% per annum at such times when the then current Leverage Ratio
is less than 5.50 to 1.00 and (ii) 1.25% per annum at such times when the then
current Leverage Ratio is equal to or greater than 5.50 to 1.00, (b) with
respect to any Eurodollar Term Loan or Tranche A Participation Fee, (i) 2.00%
per annum at such times when the then current Leverage Ratio is less than 5.50
to 1.00 and (ii) 2.25% per annum at such times when the then current Leverage
Ratio is equal to or greater than 5.50 to 1.00 and (c) with respect to any ABR
Revolving Loan or Eurodollar Revolving Loan, the applicable interest rate margin
per annum set forth below under the caption "ABR Spread" or "Eurodollar Spread",
as the case may be, based upon the Leverage Ratio as of the most recent
determination date; provided that the ABR Spread relating to Swingline Loans,
whenever the Leverage Ratio is in Category 2, 3, 4 or 5, will be .25% lower than
the ABR Spread reflected in the table below:
ABR Eurodollar
Leverage Ratio: Spread Spread
----------------------------------------- ------ ----------
Category 1 2.00% 3.00%
Greater than or equal to 5.25 to 1.00
Category 2 1.75% 2.75%
Greater than or equal to 4.75 to 1.00
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but less than 5.25 to 1.00
Category 3 1.50% 2.50%
Greater than or equal to 4.25 to 1.00 but
less than 4.75 to 1.00
Category 4 1.25% 2.25%
Greater than or equal to 3.75 to 1.00 but
less than 4.25 to 1.00
Category 5 1.00% 2.00%
Less than 3.75 to 1.00
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon Allied Waste's Consolidated financial statements delivered pursuant
to Section 5.04(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such Consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 1 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrower fails to deliver the Consolidated financial statements required
to be delivered by it pursuant to Section 5.04(a) or (b), during the period from
and including the last date for timely delivery thereof (without regard to any
applicable grace period) until the date on which such Consolidated financial
statements are delivered.
"Applicable Percentage" means, (a) with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment and (b) with respect to any Tranche A Lender, the
percentage of the Total Tranche A Credit-Linked Deposit represented by such
Lender's Tranche A Credit-Linked Deposit. If the Revolving Commitments have
terminated or expired, the Applicable Percentages with respect to any Revolving
Lender shall be determined based upon the Revolving Commitments most recently in
effect, giving effect to any assignments. If the Tranche A Credit-Linked
Deposits shall have been applied in full to reimburse Tranche A LC
Disbursements, the Applicable Percentage with respect to any Tranche A Lender
shall be determined based upon the Total Tranche A Credit-Linked Deposit most
recently in effect, giving effect to any assignments.
"Approved Fund" means (a) with respect to any Lender, a CLO managed
by such Lender or by an Affiliate of such Lender and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale" means any sale, lease, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired, whether in
one
6
transaction or a series of related transactions and whether by way of merger or
otherwise) by any member of the Allied Group, including any such sale,
assignment, transfer or other disposition of any capital stock or other
ownership interests of any Subsidiary and any sale or securitization of accounts
receivable (other than assignments of accounts receivable for purposes of
collection in the ordinary course of business), but excluding dispositions of
obsolete inventory or equipment and sales of inventory and equipment, in each
case, in the ordinary course of business.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Assumed RMI Liabilities" means the insurance, capping, closure,
post-closure, environmental and related liabilities, including clean-up and
remediation liabilities, that were assumed by the RMI Subsidiaries from the
Borrower and Restricted Subsidiaries prior to March 30, 2004.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction, the present value (computed in accordance with GAAP as if the
obligations incurred in connection with such Sale and Leaseback Transaction were
Capital Lease Obligations) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination. Any determination of any rate implicit in the terms of the lease
included in such Sale and Leaseback Transaction made in accordance with
generally accepted financial practices by the Borrower shall be binding and
conclusive absent manifest error.
"AWNA" means the Borrower.
"AWNA-BFI Subsidiaries" means the limited liability companies that
are Subsidiaries of AWNA, but not of BFI, and that became parties to the Shared
Collateral Security Agreement in connection with the transfer to them in July
2002 of certain assets and businesses owned by BFI and its Subsidiaries.
"AWNA Senior Note Indenture" means the Indenture dated as of
December 23, 1998, among AWNA, Allied Waste, various Subsidiaries, and U.S. Bank
Trust National Association, as Trustee, including all amendments thereto and all
supplements thereto (other than any 2001 Indenture), as in effect on the
Restatement Effective Date, and as thereafter amended or supplemented in
accordance with the provisions of this Agreement.
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"AWNA Senior Notes" means the senior notes of AWNA issued pursuant
to the AWNA Senior Note Indenture.
"Bank Indebtedness" means any and all amounts payable under or in
respect of this Agreement and the other Loan Documents in respect of the
Obligations, as amended from time to time, including principal, premium, (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Borrower whether or
not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and all other amounts
payable thereunder or in respect thereof.
"Benchmark LIBOR Rate" shall have the meaning assigned to such term
in Section 2.20(b).
"BFI" means ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation.
"BFI Indenture" means the Restated Indenture dated as of September
1, 1991, between BFI and JPMorgan Chase Bank, N.A. (formerly Chase Bank of
Texas, N.A.), as successor trustee to First City Texas-Houston, N.A., including
all supplements, amendments and modifications thereto, as in effect on the
Restatement Effective Date, and as thereafter amended in accordance with the
provisions of this Agreement.
"BFI Indenture Debt" means the senior notes of BFI issued pursuant
to the BFI Indenture and outstanding on the Restatement Effective Date.
"Blackstone" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands
limited partnership, Blackstone Offshore Capital Partners II L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership III L.P.,
a Delaware limited partnership, and Blackstone Family Investment Partnership II
L.P., a Cayman Islands limited partnership (each of the foregoing, a "Blackstone
Fund") and (ii) each Affiliate of any Blackstone Fund that is not an operating
company or Controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee of The
Blackstone Group L.P.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Allied Waste North America, Inc., a Delaware
corporation.
"Borrower's Portion of Excess Cash Flow" in respect of any Excess
Cash Flow Calculation Period means 50% of Excess Cash Flow for such period.
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"Borrowing" means (a) Loans of the same Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or Phoenix, Arizona are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by Allied Waste or any of its Restricted Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs unless such repairs are
required to be capitalized in accordance with GAAP) during such period computed
in accordance with GAAP; provided that Capital Expenditures shall not include
(a) expenditures classified as Permitted Acquisitions, (b) expenditures made by
an Acquired Business prior to the time such Acquired Business was acquired by
Allied Waste or any of its Restricted Subsidiaries pursuant to a Permitted
Acquisition, (c) expenditures made with the proceeds of condemnation awards or
insurance for fixed assets, plant and equipment, (d) expenditures made to
acquire capital assets made with the proceeds of Asset Sales not required to be
applied to the mandatory prepayment of Loans hereunder, (e) interest capitalized
during such period, (f) expenditures that are accounted for as capital
expenditures of such Person and that actually are paid for by a third party
(excluding Allied Waste or any Restricted Subsidiary) and for which neither
Allied Waste nor any Restricted Subsidiary has provided or is required to
provide or incur, directly or indirectly, any consideration or obligation to
such third party or any other person (whether before, during or after such
period) or (g) the book value of any asset owned by such Person prior to or
during such period to the extent such book value is included as a capital
expenditure during such period as a result of such person reusing or beginning
to reuse such asset during such period without a corresponding expenditure
actually having been made in such period; provided that any actual expenditure
necessary in order to permit such asset to be reused shall be included as a
Capital Expenditure during the period that such expenditure actually is made and
such book value shall have been included in Capital Expenditures when such asset
was originally acquired.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
9
"Cash-Pay Preferred Stock" means (a) for purposes of the definition
of Consolidated Interest Expense, Preferred Stock of any member of the Allied
Group that by its terms requires the periodic payment of cash dividends or in
respect of which the issuer has declared or paid cash dividends and (b) for all
other purposes (including the definitions of Indebtedness and Total
Indebtedness), Preferred Stock of any member of the Allied Group to the extent
that (i) such member of the Allied Group has undertaken to redeem or repurchase
for cash or other assets (other than common stock or Preferred Stock of Allied
Waste which, in the case of such Preferred Stock, is Non-Cash-Pay at such time)
at a fixed or determinable date or dates prior to the date that is six months
after the Term Loan Maturity Date, whether by operation of a sinking fund or
otherwise or (ii) such Preferred Stock is required by its terms to be
repurchased or redeemed for cash or other assets (other than common stock or
Preferred Stock of Allied Waste which, in the case of such Preferred Stock, is
Non-Cash-Pay at such time) by such member of the Allied Group on any date or
dates prior to the date that is six months after the Term Loan Maturity Date at
the option of the holder thereof or upon the occurrence of a condition or event
not solely within the control of such member of the Allied Group (other than, in
each such case, upon the occurrence of a change in control of such member of the
Allied Group or any Affiliate thereof).
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking of, such property
for which such Person or any of its subsidiaries receives insurance proceeds,
proceeds of a condemnation award or other compensation to the extent that such
proceeds or other compensation exceeds $10,000,000 with respect to any
individual event or $25,000,000 with respect to all such events, in each case in
any calendar year.
"Change in Control" means:
(a) any Person or group (other than Apollo or Blackstone) (within
the meaning of Rule 13d-5 promulgated under the Securities Exchange Act of
1934 as in effect on the Restatement Effective Date) shall have acquired,
directly or indirectly, beneficial ownership of shares representing more
than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of Allied Waste;
(b) a majority of the seats (other than vacant seats) on the board
of directors of Allied Waste shall at any time be occupied by Persons who
were neither nominated by the board of directors of Allied Waste nor
appointed by directors so nominated;
(c) any change in control (or similar event, however denominated)
with respect to Allied Waste or the Borrower shall occur under and as
defined in any indenture or agreement in respect of Indebtedness in an
aggregate principal amount in excess of $50,000,000; or
(d) Allied Waste shall cease to own and control, directly,
beneficially and of record, 100% of the outstanding capital stock of the
Borrower, free and clear of
10
all Liens (other than Liens under the Non-Shared Collateral Pledge
Agreement and Permitted Encumbrances).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Restatement Effective Date, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the Restatement Effective Date or (c) compliance by
any Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender's or Issuing Bank's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the Restatement
Effective Date.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, Term Loan
Commitment, Swingline Commitment or Tranche A Credit-Linked Deposit.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of a Lender.
"CNAI" means Citicorp North America, Inc.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral" as defined in the
Non-Shared Collateral Security Agreement or "Collateral" as defined in the
Shared Collateral Security Agreement.
"Collateral Agent" means JPMorgan Chase Bank, N.A., in its capacity
as collateral agent for the Lenders under the Loan Documents or in its capacity
as the Collateral Trustee.
"Collateral Trust Agreement" means the Amended and Restated
Collateral Trust Agreement, substantially in the form of Exhibit B, among BFI,
Subsidiary Loan Parties that are Subsidiaries of BFI, AWNA-BFI Subsidiaries and
the Collateral Trustee for the benefit of the Shared Collateral Secured Parties,
as amended, supplemented or otherwise modified from time to time in accordance
with the provisions of this Agreement.
"Collateral Trustee" means JPMorgan Chase Bank, N.A., in its
capacity as collateral trustee under the Collateral Trust Agreement, the Shared
Collateral Pledge Agreement and the Shared Collateral Security Agreement.
11
"Commitment" means the Revolving Commitments, the Term Loan
Commitments, the Swingline Commitments and the Tranche A Credit-Linked Deposits,
or any combination thereof (as the context requires).
"Common Equity Offering" has the meaning assigned to such term in
the preamble of this Agreement.
"Confidential Information Memorandum" means the Confidential
Information Memorandum of Allied Waste and the Borrower dated February, 2005,
provided to prospective Lenders in connection with the syndication of the
Commitments.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Operating
Income for such period, plus, without duplication and to the extent deducted in
determining such Consolidated Operating Income, the sum of:
(a) all amounts attributable to depreciation and amortization for
such period; plus
(b) all Non-Cash Non-Recurring Charges during such period (including
all accruals for closure and post-closure liabilities); plus
(c) all non-recurring management fees paid to Apollo and Blackstone
during such period; plus
(d) all non-recurring cash charges incurred in connection with
Permitted Acquisitions, Investments permitted under Section 6.05(a), (g)
or (h), Indebtedness permitted under Section 6.01 and Securitizations
permitted under Sections 6.05 and 6.06 during such period; plus
(e) all cash losses associated with asset sales during such period;
plus
(f) all fees accrued to Issuing Banks in respect of Letters of
Credit (whether or not actually paid during such period);
and minus, without duplication and to the extent included in determining
Consolidated Operating Income for such period:
(i) all Non-Cash Non-Recurring Gains during such period;
(ii) all cash disbursements made in such period attributable to
Non-Cash Non-Recurring Charges added back in determining Consolidated
EBITDA during a prior period, including cash disbursements made in respect
of prior accruals for closure and post-closure liabilities (provided that,
for purposes of this clause (ii), Allied Waste shall be required to
monitor actual cash disbursements only for
12
those non-cash charges that exceed $1,000,000 individually and $10,000,000
in the aggregate in any fiscal year); and
(iii) all cash gains associated with asset sales during such period,
all as determined on a Consolidated basis with respect to Allied Waste, the
Restricted Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles.
For purposes of Section 6.13 and 6.14, if the Borrower or any of its
Restricted Subsidiaries or RMI Subsidiaries acquires any Acquired Business
during any Rolling Period, Consolidated EBITDA for such Rolling Period will be
determined on a pro forma basis as if such Acquired Business were acquired on
the first day thereof. In determining the pro forma adjustments to Consolidated
EBITDA to be made with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Borrower and its Restricted
Subsidiaries prior to the first anniversary of the related acquisition date that
result in cost savings with respect to such Acquired Business will be deemed to
have been taken on the first day of the Rolling Period for which Consolidated
EBITDA is being determined (with the intent that such cost savings be
effectively annualized by extrapolation from the demonstrated cost savings since
the related acquisition date). Such pro forma adjustments will be subject to
delivery to the Administrative Agent of a certificate of a Financial Officer;
such certificates may be delivered with respect to any Acquired Business at any
time after the last day of the first fiscal quarter of the Borrower to end after
the related acquisition date and may be delivered quarterly (but only once per
fiscal quarter with respect to each Acquired Business). Each such certificate
shall be accompanied by supporting information and calculations demonstrating
the actual cost savings with respect to such Acquired Business and such other
information as any Lender, through the Administrative Agent, may reasonably
request.
"Consolidated Interest Expense" means, for any period, without
duplication, consolidated interest expense of Allied Waste, its Restricted
Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles for such
period, plus the sum, for Allied Waste, its Restricted Subsidiaries, the RMI
Subsidiaries and the Securitization Vehicles (determined on a Consolidated basis
without duplication), of the following, in each case to the extent not otherwise
included in determining consolidated interest expense:
(a) capitalized interest expense for such period of Allied Waste,
its Restricted Subsidiaries, the RMI Subsidiaries and the Securitization
Vehicles; plus
(b) cash interest accrued during such period in respect of
Indebtedness attributable to any assets held for sale during such period
(whether or not actually paid during such period); plus
(c) all fees accrued to Issuing Banks during such period in respect
of Letters of Credit (whether or not actually paid during such period);
plus
13
(d) all cash dividends paid or payable during such period in respect
of Cash-Pay Preferred Stock of members of the Allied Group; plus
(e) all accrued settlement payments in respect of Hedging Agreements
owing by Allied Waste, any Restricted Subsidiary, the RMI Subsidiary or
any Securitization Vehicle during such period;
and minus the sum of, for Allied Waste, its Restricted Subsidiaries, the RMI
Subsidiaries and the Securitization Vehicles (determined on a Consolidated basis
without duplication), in each case to the extent not otherwise deducted in
determining consolidated interest expense, (i) any amortization and other
non-cash charges or expenses incurred during such period to the extent included
in determining consolidated interest expense (other than amounts relating to the
unwinding of any Hedging Agreement), including amortization of deferred debt
origination and issuance costs and amortization of accumulated other
comprehensive income, (ii) all amounts associated with the unwinding of any
Hedging Agreement to the extent such unwinding is the direct result of any
prepayment of the Term Loans occurring within 60 days of the date on which such
amount is incurred, (iii) to the extent included in determining consolidated
interest expense, the amount of any fee or premium paid to repurchase, defease
or redeem any Indebtedness in any Permitted Refinancing Transaction or any
Transaction and (iv) all accrued settlement payments in respect of Hedging
Agreements payable to Allied Waste, any Restricted Subsidiary, any RMI
Subsidiary, or any Securitization Vehicle during such period.
"Consolidated Operating Income" means, for any period, the sum of
(a) operating income (or loss) of Allied Waste, the Restricted Subsidiaries, the
RMI Subsidiaries and the Securitization Vehicles for such period and (b) to the
extent not included as operating income in clause (a) above, operating income
(or loss) attributable to assets held for sale during such period.
"Consolidated Total Assets" means, as at any date of determination,
the aggregate amount of assets reflected on the Consolidated balance sheet of
the Allied Group prepared in accordance with GAAP most recently delivered to the
Administrative Agent pursuant to Section 5.04 on or prior to such date of
determination.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Cure Amount" has the meaning assigned to such term in Section 7.02.
"Cure Right" has the meaning assigned to such term in Section 7.02.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
14
"Designated Excess Cash Expenditures" means the use of the
Borrower's Portion of Excess Cash Flow to (i) make dividend payments pursuant to
Section 6.08(a)(vi); provided that any dividend paid by the Borrower or any
Restricted Subsidiary to Allied Waste in such Section shall not be deemed to be
the payment of a dividend for purposes of this definition, (ii) repurchase
outstanding Allied Waste common stock pursuant to Section 6.08(a)(vii) and (iii)
make prepayments, repurchases or redemptions of Refinanceable Indebtedness
pursuant to Section 6.11(a)(z).
"Designation" shall have the meaning assigned to such term in
Section 6.16.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means a Restricted Subsidiary organized under
the laws of the United States of America, any State thereof or the District of
Columbia.
"Effective Date" means July 30, 1999.
"8.875% Notes" means $600,000,000 aggregate principal amount of
senior notes of the Borrower due April 1, 2008 issued pursuant to the terms of
the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"8.50% Notes" means $750,000,000 aggregate principal amount of
senior notes of the Borrower due December 1, 2008 issued pursuant to the terms
of the 2001 Indenture.
"Environment" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, any building, structure or fixture, or as otherwise defined
in any Environmental Law.
"Environmental Claim" means any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
Person, in any such case for or relating to damages, injunctive or equitable
relief, personal injury (including sickness, disease or death), remedial action
costs, tangible or intangible property damage, natural resource damages,
nuisance, pollution, investigation, closure and post-closure care of any
landfill, any adverse effect on the environment caused by any Hazardous
Material, or for fines, penalties or restrictions, resulting from or based upon
(a) the threat, the existence, or the continuation of the existence, of a
Release (including sudden or nonsudden, accidental or nonaccidental Releases),
(b) exposure to any Hazardous Material, (c) the presence, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material or (d)
the violation or alleged violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices, legally binding agreements or published and
legally binding
15
guidance documents issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the treatment, storage, disposal, management, Release or
threatened Release of any Hazardous Material or to health and safety matters,
including the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Action of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Sections 1251 et seq., the Clean Air Act of 1970, as amended,
42 U.S.C. Sections 7401 et seq., the Toxic Substances Control Act of 1976, 15
U.S.C. Sections 2601 et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. Sections 651 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 et seq., the Safe Drinking
Water Act of 1974, as amended, 42 U.S.C. Sections 300(f) et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 5101 et seq., and all
amendments or regulations promulgated under any of the foregoing.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of Allied Waste, the Borrower or
any Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Environmental Permit" means any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests issued by such Person.
"Equity Offerings" has the meaning assigned to such term in the
preamble of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
16
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA; provided that no
ERISA Event shall be "outstanding" on any date on which such ERISA Event has
been corrected.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Cash Flow" means, with respect to Allied Waste, its
Restricted Subsidiaries, the RMI Subsidiaries and the Securitization Vehicles,
on a Consolidated basis for any Excess Cash Flow Calculation Period, the excess
of (a) the sum (without duplication) of:
(i) Consolidated EBITDA for such Excess Cash Flow Calculation
Period;
(ii) all gains resulting in the receipt of cash by the Allied Group
during such Excess Cash Flow Calculation Period to the extent not included
in Consolidated EBITDA for such Excess Cash Flow Calculation Period; and
(iii) any decrease in Net Working Capital during such Excess Cash
Flow Calculation Period;
over (b) the sum (without duplication) of
(i) Taxes paid or payable in cash during such Excess Cash Flow
Calculation Period;
(ii) Consolidated Interest Expense paid or payable in cash during
such Excess Cash Flow Calculation Period;
17
(iii) Capital Expenditures made in cash and in accordance with
Section 6.15 during such Excess Cash Flow Calculation Period (other than
Required Applications);
(iv) expenditures made in cash for Permitted Acquisitions and for
Investments permitted under Sections 6.05(h) and (k) during such Excess
Cash Flow Calculation Period other than Required Applications and only to
the extent not made with the proceeds of any Indebtedness;
(v) scheduled repayments and mandatory prepayments of Indebtedness
made in cash by Allied Waste, its Restricted Subsidiaries and the RMI
Subsidiaries during such Excess Cash Flow Calculation Period other than
Required Applications and only to the extent not made with the proceeds of
any Indebtedness;
(vi) mandatory prepayments of the principal of Term Loans during
such Excess Cash Flow Calculation Period, but only to the extent such
prepayments do not occur in connection with a refinancing of all or any
portion of such Loans or constitute Required Applications;
(vii) any increase in Net Working Capital during such Excess Cash
Flow Calculation Period;
(viii) dividends or other distributions made by Allied Waste in cash
during such Excess Cash Flow Calculation Period that are permitted by
Section 6.08, other than any such dividends or distributions constituting
Designated Excess Cash Expenditures; and
(ix) repayments and prepayments of Third Party Securities made by
Allied Waste, its Restricted Subsidiaries and the Securitization Vehicles
during such Excess Cash Flow Calculation Period (excluding any repayments
made by Securitization Vehicles from the proceeds from the issuance of
securities by Securitization Vehicles); provided, however, that all such
repayments and prepayments (other than scheduled and mandatory principal
repayments) made pursuant to this clause (b)(ix) may be made only (A) with
the proceeds of collections of accounts receivable and (B) in connection
with the dissolution or winding up of the Securitization Vehicle that
issued such Third Party Securities.
"Excess Cash Flow Calculation Period" means the twelve month period
beginning on April 1 of any year and ending on March 31 of the following year.
"Excess Tranche A Credit-Linked Deposits" means, at any time, the
excess, if any, of the Total Tranche A Credit-Linked Deposit over the Tranche A
LC Exposure at such time.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder or, for purposes of
Section 2.17
18
only, by or on account of any obligation of the Administrative Agent pursuant to
Section 2.20(b), (a) any Taxes (including franchise Taxes and Taxes imposed on
(or measured by) net income, receipts or capital) imposed as a result of a
connection between such recipient and the jurisdiction imposing such Tax,
including any connection arising from such recipient being or having been a
citizen, domiciliary or resident of such jurisdiction, being organized in such
jurisdiction, or having or having had a permanent establishment or fixed place
of business therein, but excluding any such connection arising solely from the
activities of such recipient pursuant to or in respect of this Agreement or
under any other Loan Document, including executing, delivering or performing its
obligations or receiving a payment under, or enforcing, this Agreement or any
other Loan Document, (b) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.19(b)), any Tax that
arises other than as a result of a Change in Law subsequent, in the case of each
Foreign Lender, to the date such Foreign Lender becomes a party to this
Agreement, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower or the
Administrative Agent, as applicable, with respect to any withholding Tax
pursuant to Section 2.17(a) or (b), and (c) any Tax that is attributable to a
Lender's failure to comply with Section 2.17(e).
"Existing Letter of Credit" means each letter of credit issued or
deemed to have been issued under the Original Credit Agreement that is
outstanding on the Restatement Effective Date. The Existing Letters of Credit
are listed in Schedule 2.05.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financial Performance Covenants" means the covenants set forth in
Sections 6.13 and 6.14.
"5.75% Notes" means $400,000,000 aggregate principal amount of
senior notes of the Borrower due February 15, 2011 issued pursuant to the terms
of the 2001 Indenture.
"Foreign Lender" means any Lender that is not a United States person
within the meaning of Section 7701(a)(30) of the Code.
19
"Foreign Subsidiary" means any Restricted Subsidiary that is not a
Domestic Subsidiary.
"Former Properties" has the meaning assigned to such term in Section
3.16.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive substances
or wastes; hazardous or toxic substances or wastes; pollutants; and solid,
liquid or gaseous wastes, including petroleum or petroleum distillates, asbestos
or asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all substances, wastes, pollutants and materials of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any Interest Rate Protection Agreement or
commodity price protection agreement or other commodity price hedging
arrangement.
"Incremental Commitment" has the meaning assigned to such term in
Section 2.21(a).
20
"Incremental Facility Amendment" has the meaning assigned to such
term in Section 2.21(a).
"Incremental Facility Notice" has the meaning set forth in Section
2.21(a).
"Incremental Term Loans" has the meaning assigned to such term in
Section 2.21(a).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable and accrued obligations incurred
in the ordinary course of business and waste disposal based royalties), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (j)
all net payment obligations of such Person in respect of Hedging Agreements, and
(k) all fixed obligations of such Person to pay a determined amount of cash or
other assets (other than common stock or Preferred Stock of Allied Waste which,
in the case of such Preferred Stock, is Non-Cash-Pay at such time) with respect
to Cash Pay Preferred Stock issued by such Person. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Indemnity, Subrogation and Contribution Agreement" means the
Amended and Restated Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit C, among the Borrower, the Subsidiary Loan
Parties and the Administrative Agent, as amended, supplemented or otherwise
modified from time to time in accordance with the provisions of this Agreement.
"Initial Lenders" means JPMorgan Chase Bank, N.A. and CNAI.
"Insurance Subsidiaries" means, collectively, (i) Global Indemnity
Assurance Company, an insurance company organized under the laws of the State of
Vermont and, on the Restatement Effective Date, a wholly owned Subsidiary of the
21
Borrower; and (ii) Saguaro National Captive Insurance Company, an insurance
company organized under the laws of the State of Arizona and, on the Restatement
Effective Date, a wholly owned Subsidiary of the Borrower.
"Intellectual Property" means the "Intellectual Property" as defined
in the Non-Shared Collateral Security Agreement and the "Intellectual Property"
as defined in the Shared Collateral Security Agreement.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
Consolidated EBITDA for the Rolling Period most recently ended on or prior to
such date to (b) Consolidated Interest Expense for such Rolling Period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Loan with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending (i) on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, if available from each Lender, nine or twelve months) thereafter
or (ii) on the date that is 7 or 14 days thereafter (or, if such date is not a
Business Day, the next following Business Day), in each case as the Borrower may
elect; provided, that (1) no Interest Period referred to in clause (ii) above
may end after the date that is 90 days after the Restatement Effective Date, (2)
if any Interest Period referred to in clause (i) above would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (3) any Interest Period referred to in clause
(i) above that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Interest Rate Protection Agreement" means any interest rate
protection agreement or foreign currency exchange agreement or other interest or
currency exchange rate hedging arrangement.
22
"Investment" by any Person in any other Person means (i) any direct
or indirect loan, advance or other extension of credit or capital contribution
to or for the account of such other Person (by means of any transfer of cash or
other property to any Person or any payment for property or services for the
account or use of any Person, or otherwise), (ii) any direct or indirect
purchase or other acquisition of any Equity Interest, bond, note, debenture or
other debt or equity security or evidence of Indebtedness, or any other
ownership interest (including, any option, warrant or any other right to acquire
any of the foregoing), issued by such other Person, whether or not such
acquisition is from such or any other Person, (iii) without duplication, any
direct or indirect payment by such Person on a Guarantee of any obligation of or
for the account of such other Person or any direct or indirect issuance by such
Person of such a Guarantee (provided, however, that for purposes of Section
6.05, payments under Guarantees not exceeding the amount of the Investment
attributable to the issuance of such Guarantee will not be deemed to result in
an increase in the amount of such Investment) or (iv) any other investment of
cash or other property by such Person in or for the account of such other
Person.
"Issuing Banks" means (a) JPMorgan Chase Bank, N.A. and any other
Lender designated as an Issuing Bank in accordance with the provisions of
Section 2.05(b)(vii), in each case in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.05(b)(vii) and (b) in respect of each Existing Letter of Credit, the issuer
thereof. An Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Banks" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"Junior Indebtedness" means (a) Indebtedness of members of the
Allied Group in respect of the Senior Subordinated Notes and other Permitted
Subordinated Debt, and (b) Indebtedness of members of the Allied Group the
payment of which is contractually subordinated to the obligations of such
members as Loan Parties hereunder.
"Large Acquisition" has the meaning assigned to such term in Section
5.04(e).
"LC Disbursement" means a Revolving LC Disbursement or a Tranche A
LC Disbursement.
"LC Exposure" means, at any time, the Revolving LC Exposure and the
Tranche A LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance or otherwise ceases to have any Loans or
Commitments hereunder. Unless the context otherwise requires, the term "Lenders"
includes the Swingline Lenders and the Tranche A Lenders.
23
"Letter of Credit" means any Existing Letter of Credit, any
Revolving Letter of Credit or any Tranche A Letter of Credit.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the Rolling Period
most recently ended on or prior to such date, all determined on a Consolidated
basis in accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Screen, providing rate quotations comparable to those
currently provided on such page of such Screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" means this Agreement, the Security Agreements and
the other Security Documents, as the same may be amended, restated,
supplemented, or otherwise modified from time to time.
"Loan Parties" means Allied Waste, the Borrower and the Subsidiary
Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Losses" has the meaning assigned to such term in Section
2.17(e)(iii).
"Mandatory Convertible Offering" has the meaning assigned to such
term in the preamble of this Agreement.
"Mandatory Convertible Securities" means the 6.25% Series D Senior
Mandatory Convertible Preferred Stock of Allied Waste issued in the Mandatory
Convertible Offering.
24
"Margin Stock" means "margin stock", as such term is defined in
Regulation U of the Board.
"Material Adverse Effect" means (a) a materially adverse effect on
the business, condition (financial or otherwise), operations, performance or
properties of Allied Waste and its Restricted Subsidiaries, taken as a whole,
(b) a material impairment of the ability of Allied Waste or the Borrower to
perform its obligations under the Loan Documents, (c) a material impairment of
the ability of the members of the Allied Group, taken as a whole, to perform
their collective obligations under the Loan Documents, or (d) a material
impairment of the rights of or benefits available to the Administrative Agent
and the Lenders under the Loan Documents.
"Material Agreement" means an agreement that is material to the
conduct of the business of Allied Waste and its Restricted Subsidiaries, taken
as a whole.
"Material Indebtedness" means Indebtedness (other than the Loans,
the Letters of Credit and Indebtedness attributable to any Securitization
Vehicle), or obligations in respect of one or more Hedging Agreements, of any
one or more of Allied Waste and its Restricted Subsidiaries (other than
Indebtedness between Allied Waste and any Restricted Subsidiary or any
Restricted Subsidiary and any other Restricted Subsidiary) in an outstanding
aggregate principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations in respect of
any Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements with the applicable counterparty) that Allied
Waste or such Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Material Lease" means a lease of Allied Waste or a Restricted
Subsidiary with respect to real property (i) having an aggregate book value of
more than $50,000,000 or (ii) providing for annual rental payments in excess of
$10,000,000.
"Material Loan Party" means Allied Waste, the Borrower, BFI and each
other Loan Party that has (i) $50,000,000 in gross revenues in any fiscal year
or (ii) $50,000,000 in total assets.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(a) In the case of any Asset Sale, the aggregate amount of all cash
payments as and when received by the members of the Allied Group directly
or indirectly in connection with such Asset Sale; provided that:
(1) such Net Available Proceeds shall be net of (x) the amount
of any legal, title and recording Tax expenses, commissions and
other
25
reasonable fees and expenses (including reasonable expenses of
preparing the relevant property for sale) paid by the members of the
Allied Group in connection with such Asset Sale, (y) any Federal,
state and local income or other Taxes reasonably estimated in good
faith to be payable by members of the Allied Group with respect to
such Asset Sale and (z) the aggregate amount of reserves taken by
the members of the Allied Group in accordance with GAAP against
indemnification obligations incurred by them in connection with such
Asset Sale; provided that if any such reserves are subsequently
reversed by or released to members of the Allied Group, an amount
equal to the amount of such reversal or release shall be deemed to
constitute Net Available Proceeds;
(2) such Net Available Proceeds shall be net of any repayments
of Indebtedness and related obligations by members of the Allied
Group to the extent that (x) such Indebtedness is secured by a Lien
on the property that is the subject of such Asset Sale and permitted
by Section 6.02 and (y) the transferee of (or holder of a Lien on)
such property requires that such Indebtedness be repaid as a
condition to the purchase of such property;
(3) in the case of an Asset Sale consisting of a substantially
contemporaneous exchange (including by way of a substantially
contemporaneous purchase and sale) of discrete assets of members of
the Allied Group for one or more other assets used for similar
purposes, Net Available Proceeds shall be net of cash payments made
by members of the Allied Group in connection with such exchange; and
(4) in the case of a Securitization permitted by Sections 6.05
and 6.06, such Net Available Proceeds shall be net of, without
duplication, (x) any amounts incurred in connection with such
Securitization by the Borrower or any of its Subsidiaries set forth
in clause (1) of this definition and (y) any other fees, costs or
expenses paid in cash by the applicable Securitization Vehicle in
connection with such Securitization; provided, however, that any
Sellers' Retained Interests shall not be deemed to constitute a cost
or expense for purposes of calculating such Net Available Proceeds.
(b) In the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
in cash by members of the Allied Group in respect of such Casualty Event
net of (1) reasonable cash expenses incurred by them in connection
therewith, (2) contractually required repayments of Indebtedness and
related obligations to the extent secured by a Lien on the property
suffering such Casualty Event and permitted by Section 6.02 and (3) any
income, transfer and other Taxes reasonably estimated to be actually
payable by members of the Allied Group in respect of such Casualty Event;
provided, however, that, in the case of any Casualty Event, if the
Borrower shall deliver a certificate of a Financial Officer to
26
the Administrative Agent at the time of such Casualty Event setting forth
the Borrower's intent to use all or a portion of the proceeds of such
Casualty Event to replace or repair the assets that are the subject of
such Casualty Event commencing within 180 days of receipt of such proceeds
and no Event of Default shall have occurred and shall be continuing at the
time of such certificate or at the proposed time of the application of
such proceeds, such proceeds shall not constitute Net Available Proceeds
except to the extent not so used within 365 days after the commencement of
such repair or replacement, at which time such proceeds shall be deemed
Net Available Proceeds.
(c) In the case of any issuance of Indebtedness or any issuance of
Permitted Cure Securities pursuant to Section 7.02, the aggregate amount
of all cash received by members of the Allied Group in respect of such
issuance, net of underwriting commissions, discounts or placement fees and
other customary fees and expenses directly incurred in connection
therewith.
"Net Working Capital" means, at any date, (a) the Consolidated
current assets of Allied Waste and its Restricted Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the Consolidated current
liabilities of Allied Waste and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"9.25% Notes" means $375,000,000 aggregate principal amount of
senior notes of the Borrower due September 1, 2012 issued pursuant to the terms
of the 2001 Indenture.
"Non-Cash Non-Recurring Charges" means, for any period, all non-cash
non-recurring charges and all other non-cash charges (to the extent such other
non-cash charges are not incurred in the ordinary course of business or do not
constitute ordinary course operating expenses), incurred during such period,
including all non-cash charges in respect of Permitted Acquisitions or
Indebtedness permitted under Section 6.01, all non-cash charges in respect of
goodwill impairment, all accruals for closure and post-closure liabilities and
all non-cash losses in respect of asset sales during such period, but excluding
accruals for bad debt and accruals for expenses incurred in the ordinary course
of business during such period (it being understood that charges shall be deemed
non-cash charges until the period in which cash disbursements attributable to
such charges are made, at which point such charges shall be deemed cash charges;
provided that, for purposes of this definition, Allied Waste shall be required
to monitor actual cash disbursements only for those non-cash charges that exceed
$1,000,000 individually and $10,000,000 in the aggregate in any fiscal year).
"Non-Cash Non-Recurring Gains" means, for any period, all non-cash
non-recurring gains and all other non-cash gains (to the extent such other
non-cash gains are not realized in the ordinary course of business or do not
constitute ordinary course operating income), realized during such period,
including all non-cash gains in respect of
27
Permitted Acquisitions or Indebtedness permitted under Section 6.01 and all
non-cash gains in respect of asset sales during such period.
"Non-Cash-Pay" means:
(a) with respect to any Preferred Stock, that such Preferred Stock
is not Cash-Pay Preferred Stock; and
(b) with respect to any Indebtedness or Equity Interest (other than
Preferred Stock), that such Indebtedness or Equity Interest does not
require any cash payments (whether in respect of principal, interest,
dividends, redemption or repurchase) to be made thereon or in respect
thereof on or prior to the Term Loan Maturity Date (other than upon the
occurrence of a change of control of the issuer or any of its affiliates),
whether by operation of a sinking fund or otherwise.
"Non-Shared Collateral Pledge Agreement" means the Amended and
Restated Non-Shared Collateral Pledge Agreement, substantially in the form of
Exhibit D, among Allied Waste, the Borrower, Subsidiary Loan Parties (other than
BFI and its Subsidiaries) and the Collateral Agent for the benefit of the
Secured Parties, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of this Agreement.
"Non-Shared Collateral Security Agreement" means the Amended and
Restated Non-Shared Collateral Security Agreement, substantially in the form of
Exhibit E, among the Borrower, Allied Waste, Subsidiary Loan Parties (other than
BFI and its Subsidiaries) and the Collateral Agent for the benefit of the
Secured Parties, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of this Agreement.
"Obligations" means (i) the obligations of the Borrower hereunder to
pay the principal of, premium, if any, and interest on the Loans and LC
Disbursements and all other monetary obligations, including fees, costs,
expenses, indemnities and penalties, whether primary, secondary, direct,
contingent, fixed or otherwise, of the Borrower to the Lenders in their
capacities as such under this Agreement or any other Loan Document, and (ii) all
obligations of Loan Parties under the Parent Guarantee Agreement, Subsidiary
Guarantee Agreement, Security Agreements and Pledge Agreements.
"Optional Repurchase" means, with respect to any outstanding
Indebtedness, any optional or voluntary repurchase, redemption or prepayment
made in cash of such Indebtedness, the related payment in cash of accrued
interest to the date of such repurchase, redemption or prepayment on the
principal amount of such Indebtedness repurchased, redeemed or prepaid, the
payment in cash of associated premiums (whether voluntary or mandatory) on such
principal amount and the cash payment of other fees and expenses incurred in
connection with such repurchase, redemption or prepayment.
"Original Credit Agreement" means this Agreement, including all
amendments and waivers hereof effective prior to the Restatement Effective Date,
as in effect immediately prior to the Restatement Effective Date.
28
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales or property or similar Taxes, charges or
similar levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent Guarantee Agreement" means the Amended and Restated Parent
Guarantee Agreement, substantially in the form of Exhibit F, made by Allied
Waste in favor of the Administrative Agent for the benefit of the Secured
Parties, as amended, supplemented or otherwise modified from time to time in
accordance with the provisions of this Agreement.
"Participant" has the meaning specified in Section 9.04(c)(i).
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificates" means certificates in the form of Exhibit
G-1 and Exhibit G-2 or any other form approved by the Collateral Agent.
"Permitted Acquisition" means one or more acquisitions by the
Borrower or any other Loan Party of a business unit (with any associated assets)
located in the United States or capital stock or other ownership interests
(other than Margin Stock) of any other Person organized under the laws of the
United States, any state thereof or the District of Columbia; provided that:
(1) in the case of an acquisition of assets, such assets are to be
used, and in the case of an acquisition of capital stock or other
ownership interests, the Person so acquired is predominately engaged in,
the same line of business as Allied Waste and its Restricted Subsidiaries
or other business activities incidental or related thereto;
(2) the business acquired conducts its business exclusively in the
United States;
(3) in connection with any such acquisition involving a merger of
the Borrower or any Subsidiary Loan Party, (x) the Borrower or a wholly
owned Subsidiary of the Borrower (provided that such wholly owned
Subsidiary is then, or as a result of such acquisition becomes, a
Subsidiary Loan Party concurrently with the consummation of any such
acquisition) shall be the survivor (and if any such acquisition involves a
merger of the Borrower and one of its Subsidiaries, the Borrower shall be
the survivor) and (y) after such merger, Allied Waste shall own, directly
or indirectly, beneficially and of record, Equity Interests in such
Subsidiary Loan Party representing 100% of each of the aggregate ordinary
voting power and the aggregate equity value represented by the issued and
outstanding Equity Interests in such Subsidiary Loan Party and the
Borrower shall continue to be a wholly owned Subsidiary of Allied Waste;
29
(4) immediately prior to and after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing;
(5) in the case of an acquisition of capital stock or other
ownership interests of a Person, the Borrower or a Subsidiary Loan Party
acquires 100% of the capital stock or other ownership interests of such
Person and pledges such capital stock or other ownership interests
pursuant to a Pledge Agreement; and
(6) with respect to such acquisition, the relevant Loan Parties
(including any Specified Subsidiary acquired in connection with such
acquisition) shall enter into Guarantee Agreements and Security Documents
pursuant to Section 5.10 with respect to the Acquired Business (and any
newly acquired Specified Subsidiary) and no agreement, instrument, law,
regulation, order or decree applicable to such Specified Subsidiary or
Acquired Business shall prohibit, restrain or limit its ability to enter
into or perform any such Guarantee Agreement or Security Document or to
pledge its assets and properties pursuant to any Security Document;
provided, however, that the prior written consent of the Required Lenders has
been obtained with respect to any such acquisition (whether effected in one
transaction or a series of related transactions) with respect to which the
aggregate Acquisition Consideration exceeds 40% of Consolidated EBITDA for the
Rolling Period ending on the last day of the most recent fiscal quarter with
respect to which financial statements have been delivered pursuant to Section
5.04.
"Permitted Cure Security" means a Non-Cash-Pay equity security of
Allied Waste issued pursuant to Section 7.02.
"Permitted Encumbrances" means:
(a) Liens imposed by law for Taxes that are not yet due or are being
contested in compliance with Section 5.03;
(b) carriers', warehousemen's, landlord's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 90 days or are being contested in compliance with
Section 5.03;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case incurred in the
ordinary course of business;
30
(e) deposits securing liabilities to insurance carriers under
insurance or self-insurance arrangements;
(f) judgment liens in respect of judgments or awards in respect of
which Allied Waste or its Subsidiaries are in good faith prosecuting an
appeal or proceedings for review and in respect of which a stay of
execution pending such appeal or proceedings for review shall have been
obtained; provided that Allied Waste shall have set aside on its books
adequate reserves in accordance with GAAP with respect thereto;
(g) easements, ground leases, zoning restrictions, building codes,
rights-of-way or defects or irregularities in title and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of Allied Waste or any Restricted
Subsidiary;
(h) statutory and common law landlord liens;
(i) leases or subleases to other Persons of properties or assets
owned or leased by the Borrower or a Restricted Subsidiary; and
(j) Liens arising from the sale of overdue accounts receivable for
purposes of collection in the ordinary course of business,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) Investments in commercial paper maturing within 360 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from ▇▇▇▇▇'▇;
(c) Investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
31
(d) demand deposits made in the ordinary course of business and
consistent with the Borrower's customary cash management policy in any
domestic office of any commercial bank organized under the laws of the
United States of America or any state thereof;
(e) insured deposits issued by commercial banks of the type
described in clause (d) above;
(f) collateralized repurchase obligations with a term of not more
than 90 days for, and secured by, underlying securities of the types
described in clauses (a) through (c) above entered into with a bank
meeting the qualifications described in clause (c) above;
(g) mutual funds whose investment guidelines restrict such funds'
investments primarily to those satisfying the provisions of clause (a)
through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"Permitted LC or Public Notes Financing Transaction" means the
issuance and sale for cash from time to time on or after the Restatement
Effective Date of Qualifying Senior Unsecured Indebtedness pursuant to and
subject to the limitations set forth in Section 6.01(a)(xxiii), the Net
Available Proceeds of which are intended by the Borrower to be applied to (a)
the Optional Repurchase of up to an equal principal amount of Refinanceable
Public Notes or (b) establish cash-collateralized letter of credit facilities of
the Borrower in an aggregate amount equal to such Net Available Proceeds;
provided, however, that (i) a Financial Officer provides a written notice to the
Administrative Agent, not later than the date two Business Days following the
date on which any such Qualifying Senior Unsecured Indebtedness is issued,
specifying in reasonable detail the material economic terms on which such letter
of credit facilities are proposed to be effected and certifying the Borrower's
intention to utilize the Net Available Proceeds of such issuance to consummate
such Optional Repurchase or to establish such letter of credit facilities not
more than 150 days after the date on which such Qualifying Senior Unsecured
Indebtedness is issued and (ii) the full amount of the Net Available Proceeds
from the issuance of such Qualifying Senior Unsecured Indebtedness (other than
amounts theretofore applied to the Optional Repurchase of Refinanceable Public
Notes or to establish such letter of credit facilities) is, not later than the
date that is 150 days after the date of the issuance thereof, applied to the
prepayment of Term Loans pursuant to Section 2.11.
"Permitted Refinancing Transaction" means (i) the incurrence of
Refinancing Indebtedness by means of the extension or renewal of Refinanced Debt
not involving the issuance and sale of Refinancing Indebtedness or (ii) the
issuance and sale for cash of Refinancing Indebtedness the Net Available
Proceeds of which are intended by the Borrower to be applied to the repurchase,
redemption, repayment or, only with
32
respect to not more than $25,000,000 aggregate principal amount of each class,
series or issuance of Refinanced Debt that is Acquired Indebtedness, defeasance
of specified Refinanced Debt; provided, however, that in the case of the
issuance of Refinancing Indebtedness referred to in clause (ii) of this
definition, (x) a Financial Officer provides a written notice to the
Administrative Agent, not later than the second Business Day following the date
on which such Refinancing Indebtedness is issued, specifying in reasonable
detail the material economic terms of such Refinancing Indebtedness and the date
of issuance thereof, identifying the Indebtedness intended to be repurchased,
redeemed, repaid or defeased with such Net Available Proceeds and the material
economic terms on which such refinancing is to be effected, and certifying the
Borrower's intention to consummate such repurchase, redemption, repayment or
defeasance not more than 120 days after the date on which such Refinancing
Indebtedness is issued and (y) the full amount of the Net Available Proceeds
from the issuance of such Refinancing Indebtedness (other than amounts therefor
applied to the repayment, redemption, repurchase or defeasance of the specified
Refinanced Debt) is, not later than the date that is 120 days after the date of
issuance of such Refinancing Indebtedness, applied on such date to the
prepayment of Term Loans pursuant to Section 2.11.
"Permitted Subordinated Debt" means Indebtedness of the Borrower
(and Guarantees of such Indebtedness by Restricted Subsidiaries of the Borrower
and by Allied Waste), the payment of which is subordinated to the Borrower's,
Allied Waste's or such Restricted Subsidiary's obligations in respect of the
Obligations, provided that such Permitted Subordinated Debt (a) accrues interest
at a rate determined in good faith by the board of directors of the Borrower to
be a market rate of interest for such Permitted Subordinated Debt at the time of
issuance thereof, (b) is created under agreements or instruments that do not, as
determined in good faith by the board of directors of the Borrower, (i) impose
covenants on the Borrower and the Borrower's Subsidiaries, (ii) contain a
definition of change of control or (iii) contain events of default and other
provisions, in each case materially more restrictive than the covenants imposed
in, the change of control definition used in and the events of default and other
provisions contained in this Agreement, (c) provides that no scheduled principal
payments are due on such Permitted Subordinated Debt on any date on or prior to
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) is unsecured, (e) is not guaranteed by Allied Waste or any
Subsidiary unless (i) in the case of a Subsidiary, such Subsidiary also has
Guaranteed the Obligations and (ii) in the case of Allied Waste or any such
Restricted Subsidiary, such Guarantee of such Permitted Subordinated Debt is
subordinated to such Guarantee of the Obligations on terms no less favorable to
the Lenders than the subordination provisions of the 10% Notes, (f) does not by
its terms require the maintenance or achievement of any financial performance
standards more restrictive than those contained herein, as determined in good
faith by the board of directors of the Borrower, other than as a condition to
taking specified action and (g) the terms of subordination of such Permitted
Subordinated Debt are no less favorable to the Lenders then the subordination
provisions set forth in the 10% Note Documents (as in effect on or immediately
prior to the Restatement Effective Date).
"Permitted Transferee" means, with respect to any Person: (a) any
Affiliate of such Person; (b) any investment manager, investment advisor, or
constituent
33
general partner of such Person; or (c) any investment fund, investment account,
or investment entity that is organized by such Person or its Affiliates and
whose investment manager, investment advisor, or constituent general partner is
such Person or a Permitted Transferee of such Person.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means the Non-Shared Collateral Pledge Agreement
and the Shared Collateral Pledge Agreement.
"Predecessor Security Documents" means the "Security Documents", as
such term is defined herein immediately prior to the amendment and restatement
hereof on the Restatement Effective Date.
"Preferred Stock" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or priority,
in respect of dividends or distributions upon liquidation, over some other class
of capital stock issued by such corporation.
"Prepayment Event" means:
(a) any Asset Sale (including pursuant to a Sale and Leaseback
Transaction) of any property or asset of Allied Waste or any Restricted
Subsidiary, other than, (i) Asset Sales effected between Loan Parties
permitted by Section 6.06(f), (ii) any Asset Sale made after the
Restatement Effective Date resulting in Net Available Proceeds not
exceeding $25,000,000 and (iii) Securitizations permitted by Sections 6.05
and 6.06 hereunder;
(b) any Casualty Event with respect to any property or asset of
Allied Waste or any Restricted Subsidiary, to the extent that the Net
Available Proceeds thereof are not applied to rebuilding, repairing or
replacing such property or asset within 365 days of such Casualty Event,
as provided in the definition of "Net Available Proceeds";
(c) the incurrence by Allied Waste, the Borrower or any Restricted
Subsidiary of any Indebtedness for borrowed money (other than Refinancing
Indebtedness permitted hereby to the extent the Net Available Proceeds
thereof are used to repay, redeem, repurchase or, subject to the
limitation set forth in the definition of Refinancing Indebtedness,
defease Indebtedness other than the Obligations) pursuant to (A) Section
6.01(a)(xx), except to the extent the Net
34
Available Proceeds thereof are used to make Permitted Acquisitions,
Investments (other than Permitted Investments) permitted by Section 6.05
or Capital Expenditures permitted under Section 6.15 or (B) Section
6.01(a)(xiii), (xiv), (xv), (xviii) or (xxiii); or
(d) any Asset Sale consisting of a Securitization permitted by
Sections 6.05 and 6.06 hereunder.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Issuing Bank" means any Issuing Bank at such times as
such Issuing Bank has issued and outstanding Letters of Credit under this
Agreement exceeding $50,000,000 in the aggregate, or such lesser amount as may
be agreed upon by the Administrative Agent, the Borrower and any applicable
Issuing Bank.
"Properties" shall have the meaning assigned to such term in Section
3.16(a).
"Qualifying Preferred Stock" means Non-Cash-Pay Preferred Stock
issued after the Restatement Effective Date the Net Available Proceeds of which
are used for Optional Repurchases of Refinanceable Indebtedness pursuant to
Section 6.11(a)(u).
"Qualifying Senior Secured Indebtedness" means Senior Secured
Indebtedness issued after the Restatement Effective Date which does not mature
and has no scheduled amortization of principal prior to April 15, 2012.
"Qualifying Senior Unsecured Indebtedness" means senior unsecured
Indebtedness of the Borrower, which may be Guaranteed on an unsecured basis by
the Subsidiary Loan Parties and by Allied Waste, issued after the Restatement
Effective Date, which does not mature and has no scheduled amortization of
principal prior to April 15, 2012, provided that such Qualifying Senior
Unsecured Indebtedness (a) accrues interest at a rate determined in good faith
by the board of directors of the Borrower to be a market rate of interest at the
time of issuance thereof, (b) is created under agreements or instruments that do
not, as determined in good faith by the board of directors of the Borrower, (i)
impose covenants on the Borrower and the Borrower's Subsidiaries, (ii) contain a
definition of change of control or (iii) contain events of default or other
provisions, in each case materially more restrictive than the covenants imposed
in, the change of control definition used in and the events of default and other
provisions contained in this Agreement, (c) is not Guaranteed by any Subsidiary
unless such Subsidiary has also Guaranteed the Obligations and (d) does not by
its terms require the maintenance or achievement of any financial performance
standards more restrictive than those contained herein, as determined in good
faith by the board of directors of the Borrower, other than as a condition to
taking specified action.
35
"Recapitalization" has the meaning assigned to such term in the
preamble of this Agreement.
"Refinanceable Indebtedness" means any Indebtedness for borrowed
money of Allied Waste or any Restricted Subsidiary, including Targeted Senior
Secured Indebtedness, outstanding on the Restatement Effective Date and having a
scheduled maturity date on or prior to December 31, 2011.
"Refinanceable Public Notes" means Refinanceable Indebtedness
consisting of debt securities.
"Refinanced Debt" has the meaning assigned to such term in the
definition of "Refinancing Indebtedness".
"Refinancing Facility Amendment" has the meaning assigned to such
term in Section 2.21(b).
"Refinancing Facility Notice" has the meaning assigned to such term
in Section 2.21(b).
"Refinancing Indebtedness" means Indebtedness issued or incurred
(including by means of the extension or renewal of existing Indebtedness) to
extend, renew or refinance existing Indebtedness ("Refinanced Debt"); provided
that (i) such extending, renewing or refinancing Indebtedness is in an original
aggregate principal amount not greater than the aggregate principal amount of,
and unpaid interest on, the Refinanced Debt plus the amount of any premiums paid
thereon and fees and expenses associated therewith, (ii) such Indebtedness (x)
does not mature or require scheduled payments of principal prior to April 15,
2012 and (y) has a later maturity and a longer weighted average life than the
Refinanced Debt, (iii) such Indebtedness bears a market interest rate (as
determined in good faith by the board of directors of the Borrower) as of the
time of its issuance or incurrence, (iv) if the Refinanced Debt or any
Guarantees thereof are subordinated to the Obligations, such Indebtedness is
subordinated to the Obligations on terms no less favorable in any significant
respect to the holders of the Obligations than the subordination terms of such
Refinanced Debt or Guarantees thereof (and no Loan Party that has not guaranteed
such Refinanced Debt guarantees such Indebtedness), (v) such Indebtedness
contains covenants and events of default and is benefited by Guarantees (if any)
which, taken as a whole, are determined in good faith by the board of directors
of the Borrower to be no less favorable to the Lenders than the covenants and
events of default of or Guarantees (if any) in respect of such Refinanced Debt,
(vi) if such Refinanced Debt or any Guarantees thereof are secured, such
Indebtedness and any Guarantees thereof are either unsecured or secured only by
such assets as secured the Refinanced Debt and Guarantees thereof and (vii) if
such Refinanced Debt and any Guarantees thereof are unsecured, such Indebtedness
and Guarantees thereof are also unsecured.
"Refinancing Term Loans" has the meaning assigned to such term in
Section 2.21(b).
36
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
trustees and advisors of such Person and such Person's Affiliates.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Relevant Percentage" means (a) if the Leverage Ratio is greater
than or equal to 4.00 to 1.00, 100%; (b) if the Leverage Ratio is less than 4.00
to 1.00 but greater than or equal to 3.50 to 1.00, 75%; (c) if the Leverage
Ratio is less than 3.50 to 1.00 but greater than or equal to 3.00 to 1.00, 50%;
(d) if the Leverage Ratio is less than 3.00 to 1.00 but greater than or equal to
2.50 to 1.00, 25%; and (e) if the Leverage Ratio is less than 2.50 to 1.00,
0.0%; provided that, (x) in the case of a Prepayment Event set forth in clause
(a) of the definition of "Prepayment Event", the Leverage Ratio shall be
determined as of the final day of the fiscal quarter most recently ended
immediately prior to the date of consummation of such Asset Sale; (y) in the
case of a Prepayment Event set forth in clause (b) of the definition of
"Prepayment Event", the Leverage Ratio shall be determined as of the date
immediately prior to the date of the receipt or deemed receipt of Net Available
Proceeds of such event; and (z) in the case of a Prepayment Event set forth in
clause (c) of the definition of "Prepayment Event", the Leverage Ratio shall be
determined on a pro forma basis as of the date of the relevant incurrence of
Indebtedness, after giving effect to such incurrence and any concurrent
prepayment of Indebtedness (other than Term Loans) made with the proceeds of
such Indebtedness.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness.
"Required Application" means any application of Net Available
Proceeds to (i) the prepayment of Loans pursuant to Section 2.11(c), (ii) the
repayment, redemption or repurchase of Indebtedness (other than the Loans
permitted by Section 2.11 which, if not effected, would require a prepayment of
Loans under Section 2.11(c)(iv) or (v)) or (iii) the acquisition of real
property, equipment or other tangible assets (including pursuant to a Permitted
Acquisition), in each case, which is required (or in the case of clause (ii) or
(iii) above, specifically permitted) by the provisions of Section 2.11(c).
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans, Tranche A LC Exposure, unused Revolving Commitments and
Excess Tranche A Credit-Linked Deposits representing more than 50% of the sum of
the total Revolving Exposures, outstanding Term Loans, Tranche A LC Exposure,
unused Revolving Commitments and Excess Tranche A Credit-Linked Deposits at such
time.
"Responsible Officer" means any executive officer of Allied Waste or
the Borrower (including any Financial Officer).
37
"Restatement Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is March 21, 2005.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Allied Waste, the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in Allied Waste,
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such Equity Interests in Allied Waste, the Borrower or any Subsidiary.
"Restricted Subsidiary" means the Borrower, BFI and each other
Subsidiary that has not been designated by the Borrower as an Unrestricted
Subsidiary pursuant to and in compliance with Section 6.16. On the Restatement
Effective Date, all Subsidiaries are Restricted Subsidiaries, other than those
Subsidiaries indicated as Unrestricted Subsidiaries on Schedule 3.08.
"Revolving Availability Period" means the period from and including
the Restatement Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Revolving Lender,
the commitment of such Revolving Lender to make Revolving Loans and to acquire
participations in Revolving Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Revolving Lender's Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Revolving Lender
pursuant to Section 9.04. The amount of each Revolving Lender's Revolving
Commitment on the Restatement Effective Date is set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Revolving Lender shall
have assumed its Revolving Commitment, as applicable. The aggregate amount of
the Revolving Lenders' Revolving Commitments on the Restatement Effective Date
is $1,575,000,000.
"Revolving Exposure" means, with respect to any Revolving Lender at
any time, the sum of the outstanding principal amount of such Revolving Lender's
Revolving Loans and its Revolving LC Exposure and Swingline Exposure at such
time.
"Revolving LC Disbursement" means a payment made by an Issuing Bank
pursuant to a Revolving Letter of Credit.
"Revolving LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Revolving Letters of Credit at such
time plus (b) the aggregate amount of all Revolving LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Revolving LC Exposure of any
38
Revolving Lender at any time shall be its Applicable Percentage of the total
Revolving LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Letters of Credit" means, at any time, any Letter of
Credit issued pursuant to Section 2.05 of this Agreement, other than Tranche A
Letters of Credit.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Revolving Maturity Date" means January 15, 2010; provided, however,
that the Revolving Maturity Date will automatically become (a) January 1, 2008
if all the 8.875% Notes are not extended, renewed or refinanced with Refinancing
Indebtedness on or prior to January 1, 2008 or (b) September 1, 2008 if all the
8.50% Notes are not extended, renewed or refinanced with Refinancing
Indebtedness on or prior to September 1, 2008 (it being understood that the
Revolving Maturity Date will be the earliest date required in connection with
any such failure to extend, renew or refinance any such notes with Refinancing
Indebtedness prior to the dates specified in respect of such notes therein).
"RMI Funding Operations" means the loan or advance of funds by the
Borrower or other Restricted Subsidiaries to the RMI Subsidiaries (or by the RMI
Subsidiaries to the Borrower or other Restricted Subsidiaries) at such times and
in such amounts as are necessary to provide for the payment by the RMI
Subsidiaries of Assumed RMI Liabilities when and as they become due and payable.
"RMI Intercompany Notes" means the promissory notes of the Borrower
and/or other Restricted Subsidiaries held by the RMI Subsidiaries on March 30,
2004.
"RMI Subsidiaries" means collectively, (i) BFI Energy Systems of
Boston, Inc., (ii) BFI Services Group, Inc., (iii) BFI Trans River (LP), Inc.,
(iv) BFI Energy Systems of Plymouth, Inc., (v) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries
Europe, Inc., (vi) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Asia Pacific, Inc. and (vii)
Consolidated Processing, Inc.
"Rolling Period" means any period of four consecutive fiscal
quarters of Allied Waste.
"Sale and Leaseback Transaction" means any arrangement whereby
Allied Waste, the Borrower or a Subsidiary shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and in a related transaction rent or lease such property or other
property from the buyer or transferee of the sold or transferred property that
it intends to use for substantially the same purpose or purposes as the property
sold or transferred.
39
"Secured Parties" has the meaning assigned to such term in the
Non-Shared Collateral Security Agreement.
"Securitization" means any transaction or series of transactions
entered into by the Borrower or any Restricted Subsidiary pursuant to which the
Borrower or such Restricted Subsidiary, as the case may be, sells, conveys or
otherwise transfers to a Securitization Vehicle Securitization Assets of the
Borrower or such Restricted Subsidiary (or grants a security interest in such
Securitization Assets transferred or purported to be transferred to such
Securitization Vehicle), and which Securitization Vehicle finances the
acquisition of such Securitization Assets (i) with proceeds from the issuance of
Third Party Securities, (ii) with Sellers' Retained Interests or (iii) with
proceeds from the sale or collection of Securitization Assets previously
purchased by such Securitization Vehicle.
"Securitization Assets" means any accounts receivable owed to the
Borrower or any Restricted Subsidiary (whether now existing or arising or
acquired in the future) arising in the ordinary course of business from the sale
of goods or services, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in respect
of such accounts receivable, all proceeds of such accounts receivable and other
assets (including contract rights) which are of the type customarily transferred
in connection with securitizations of accounts receivable and which are sold,
transferred or otherwise conveyed by the Borrower or a Restricted Subsidiary to
a Securitization Vehicle in connection with a Securitization permitted by
Sections 6.05 and 6.06.
"Securitization Vehicle" means a Person that is a direct wholly
owned Subsidiary of the Borrower or a Restricted Subsidiary formed for the
purpose of effecting one or more Securitizations to which the Borrower or
Restricted Subsidiaries transfer Securitization Assets and which, in connection
therewith, issues Third Party Securities; provided that (i) such Securitization
Vehicle shall engage in no business other than the purchase of Securitization
Assets pursuant to Securitizations permitted by Sections 6.05 and 6.06, the
issuance of Third Party Securities or other funding of such Securitizations and
any activities reasonably related thereto, (ii) such Securitization Vehicle is
an Unrestricted Subsidiary under this Agreement and an "Unrestricted Subsidiary"
under each of the AWNA Senior Note Indenture and the 2001 Indenture and (iii)
such Securitization Vehicle shall not be a Subsidiary of BFI or any Restricted
Subsidiary that is or becomes a party to the Shared Collateral Pledge Agreement
or the Shared Collateral Security Agreement.
"Security Agreements" means the Non-Shared Collateral Security
Agreement and the Shared Collateral Security Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with the provisions of
this Agreement.
"Security Documents" means the Security Agreements, the Pledge
Agreements, the Subsidiary Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Collateral Trust Agreement and each other security
40
agreement or other instrument or document executed and delivered pursuant to
Section 5.10 to secure any of the Obligations, as amended, supplemented or
otherwise modified from time to time in accordance with the provisions of this
Agreement.
"Sellers' Retained Interests" means the debt or equity interests
held by the Borrower or any Restricted Subsidiary in a Securitization Vehicle to
which Securitization Assets have been transferred in a Securitization permitted
by Sections 6.05 and 6.06, including any such debt or equity received in
consideration for the Securitization Assets transferred.
"Senior Indebtedness" means the following obligations, whether
outstanding on the date of this Agreement or thereafter issued:
(i) all obligations consisting of the Bank Indebtedness;
(ii) all obligations consisting of the principal of and premium, if
any, and accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization
relating to the Borrower regardless of whether post-filing interest is
allowed in such proceeding) in respect of (A) indebtedness of the Borrower
for money borrowed and (B) indebtedness evidenced by notes, debentures,
bonds or other similar instruments for the payment of which the Borrower
is responsible or liable;
(iii) all Capitalized Lease Obligations of the Borrower;
(iv) all obligations of the Borrower (A) for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (B) under interest rate swaps, caps, collars, options and
similar arrangements and foreign currency ▇▇▇▇▇▇ entered into in respect
of any obligations described in clauses (i), (ii) and (iii) or (C) issued
or assumed as the deferred purchase price of property and all conditional
sale obligations of the Borrower and all obligations of the Borrower under
any title retention agreement;
(v) all obligations of other persons of the type referred to in
clauses (ii), (iii) or (iv) and all dividends of other persons for the
payment of which, in either case, the Borrower is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
guarantees of such obligations and dividends; and
(vi) all obligations of the Borrower consisting of modifications,
renewals, extensions, replacements and refundings of any obligations
described in clauses (i), (ii), (iii), (iv) or (v);
provided, however, that, notwithstanding anything to the contrary set forth
above, Senior Indebtedness shall not include (1) any obligation of the Borrower
to any Subsidiary, (2) any liability for Federal, state, local or other Taxes
owed or owing by the Borrower, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities),
41
(4) any Junior Indebtedness or any indebtedness, guarantee or obligation of the
Borrower that is subordinate or junior to any other indebtedness, guarantee or
obligation of the Borrower or (5) any Indebtedness that is incurred in violation
of this Agreement.
"Senior Note Offering" has the meaning assigned to such term in the
preamble of this Agreement.
"Senior Secured Indebtedness" means Indebtedness of Allied Waste or
any Subsidiary secured by the Collateral under (and as defined in) the Shared
Collateral Security Agreement and the Shared Collateral Pledge Agreement on a
pari passu basis with the Obligations.
"Series C Mandatory Convertible Securities" means the 6-1/4% Series
C Senior Mandatory Convertible Preferred Stock of Allied Waste.
"Shared Collateral Pledge Agreement" means the Amended and Restated
Shared Collateral Pledge Agreement, substantially in the form of Exhibit H,
among BFI, Subsidiaries of BFI that are Subsidiary Loan Parties and the
Collateral Trustee for the benefit of the Shared Collateral Secured Parties, as
amended, supplemented or otherwise modified from time to time in accordance with
the provisions of this Agreement.
"Shared Collateral Secured Parties" means the "Secured Parties" as
defined in the Shared Collateral Security Agreement.
"Shared Collateral Security Agreement" means the Amended and
Restated Shared Collateral Security Agreement, substantially in the form of
Exhibit I, among BFI, Subsidiaries of BFI that are Subsidiary Loan Parties and
the Collateral Trustee for the benefit of the Shared Collateral Secured Parties,
as amended, supplemented or otherwise modified from time to time in accordance
with the provisions of this Agreement.
"6.375% Notes" means $275,000,000 aggregate principal amount of
senior notes of the Borrower due April 15, 2011 issued pursuant to the terms of
the 2001 Indenture.
"S&P" means Standard & Poor's Corporation.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person on a going concern basis is not less than the amount that will be
required to pay the probable liability of such Person on its Indebtedness as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur Indebtedness or liabilities beyond such Person's
ability to pay as such Indebtedness and liabilities mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would constitute an
unreasonably small amount of capital. The portion of contingent liabilities of
any Person at any time that shall be included for purposes of the above
determinations shall be the amount of such
42
contingent liabilities that, in light of all facts and circumstances existing at
such time, could reasonably be expected to become actual matured liabilities of
such Person.
"Specified Subsidiary" means a Domestic Subsidiary (including
Domestic Subsidiaries formed or acquired pursuant to Permitted Acquisitions),
but in any event excluding Insurance Subsidiaries.
"Sponsors" means Blackstone and Apollo.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentage shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled or
held, by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Allied Waste.
"Subsidiary Guarantee Agreement" means the Amended and Restated
Subsidiary Guarantee Agreement, substantially in the form of Exhibit J, made by
the Subsidiary Loan Parties in favor of the Collateral Agent for the benefit of
the Secured Parties, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions of this Agreement.
"Subsidiary Loan Party" means each Specified Subsidiary, including
BFI.
"Swingline Commitment" means, as to any Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans, as set forth on
Schedule 2.01. The aggregate amount of Swingline Commitments on the Restatement
Effective Date is $50,000,000.
43
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lenders" means JPMorgan Chase Bank, N.A. and any other
Lender designated as a Swingline Lender in accordance with Section 2.04(d), in
each case in its capacity as a lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Targeted Senior Secured Indebtedness" means Senior Secured
Indebtedness outstanding on the Restatement Effective Date having a scheduled
maturity date prior to December 31, 2011.
"10% Note Documents" means the indenture dated as of July 30, 1999
among the Borrower, certain Subsidiaries and U.S. Bank Trust National
Association, as trustee, and all other instruments, agreements and other
documents evidencing or governing the 10% Notes or providing for any Guarantee
or other right in respect thereof.
"10% Notes" means $2,000,000,000 aggregate principal amount of
senior subordinated notes of the Borrower due August 1, 2009 issued pursuant to
the terms of the 10% Note Documents.
"Term Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan" means any term loan made hereunder on the Restatement
Effective Date.
"Term Loan Commitment" means, with respect to each Term Lender, the
commitment of such Term Lender to make Term Loans hereunder. The amount of each
Term Lender's Term Loan Commitment to make Term Loans is set forth on Schedule
2.01 or in the Assignment and Acceptance pursuant to which such Term Lender
assumed its Term Loan Commitment. The aggregate amount of the Term Loan
Commitments on the Restatement Effective Date is $1,350,000,000.
"Term Loan Maturity Date" means January 15, 2012; provided, however,
that the Term Loan Maturity Date will automatically become (a) January 1, 2008
if all the 8.875% Notes are not extended, renewed or refinanced with Refinancing
Indebtedness on or prior to January 1, 2008; (b) September 1, 2008 if all the
8.50% Notes are not extended, renewed or refinanced with Refinancing
Indebtedness on or prior to September 1, 2008; (c) November 15, 2010 if all the
5.75% Notes are not extended, renewed or refinanced with
44
Refinancing Indebtedness on or prior to November 15, 2010 or (d) January 15,
2011, if all the 6.375% Notes are not extended, renewed or refinanced with
Refinancing Indebtedness on or prior to January 15, 2011 (it being understood
that the Term Loan Maturity Date will be the earliest date required in
connection with any such failure to extend, renew or refinance any such notes
with Refinancing Indebtedness prior to the dates specified in respect of such
notes therein).
"Third Party Securities" means, with respect to any Securitization,
notes, bonds or other debt instruments, beneficial interests in a trust,
undivided ownership interests in receivables or other securities issued for cash
consideration by the relevant Securitization Vehicle to banks, financing
conduits, investors or other financing sources (other than Allied Waste and the
Subsidiaries) the proceeds of which are used to finance, in whole or in part,
the purchase by such Securitization Vehicle of Securitization Assets in a
Securitization. The amount of any Third Party Securities shall be deemed to
equal the aggregate principal, stated or invested amount of such Third Party
Securities which are outstanding at such time.
"Total Indebtedness" means, at any date, the sum (without
duplication) of:
(a) all Indebtedness (other than Indebtedness described in clauses
(e), (f) and (j) of the definition of the term "Indebtedness") of members
of the Allied Group which on such date would be required to be reflected
as liabilities for borrowed money on a Consolidated balance sheet of
Allied Waste and its Subsidiaries prepared as of such date in accordance
with GAAP;
(b) the face amount of Cash-Pay Preferred Stock of members of the
Allied Group outstanding on such date; and
(c) the aggregate principal, stated or invested amount of any Third
Party Securities outstanding at such time.
"Total Tranche A Credit-Linked Deposit" means, at any time, the sum
of all Tranche A Credit-Linked Deposits at such time, as the same may be (i)
reduced from time to time pursuant to Section 2.05(b)(iii)(B) or Section 2.08
and (ii) increased from time to time pursuant to Section 2.05(b)(iii).
"Tranche A Availability Period" means the period from and including
the Restatement Effective Date to but excluding the earlier of the Tranche A
Maturity Date and the date on which all of the Tranche A Credit-Linked Deposits
are returned to the Tranche A Lenders.
"Tranche A Credit-Linked Deposit" means, as to each Tranche A
Lender, the cash deposit made by such Lender pursuant to Section 2.05(b)(ii)(B),
as such deposit may be (a) reduced from time to time pursuant to Section
2.05(b)(iii)(B) or Section 2.08, (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04 and (c)
increased from time to time pursuant to Section 2.05(b)(iii). The amount of each
Tranche A Lender's Tranche A Credit-Linked Deposit on the Restatement Effective
Date is set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Tranche A Lender shall have acquired its Tranche A Credit-Linked
Deposit, as applicable. The aggregate amount of
45
the Tranche A Credit-Linked Deposits on the Restatement Effective Date is
$500,000,000.
"Tranche A Credit-Linked Deposit Account" means the account
established by the Administrative Agent under its sole and exclusive control
maintained at the office of JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, designated as the "Tranche A Credit-Linked Deposit Account" that
shall be used solely to hold the Tranche A Credit-Linked Deposits.
"Tranche A LC Disbursement" means any payment made by an Issuing
Bank pursuant to a Tranche A Letter of Credit.
"Tranche A LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Tranche A Letters of Credit at such
time plus (b) the aggregate amount of all Tranche A LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Tranche A LC Exposure of any Tranche A Lender at any time shall be its
Applicable Percentage of the total Tranche A LC Exposure at such time.
"Tranche A Lender" means a Lender having a Tranche A Credit-Linked
Deposit.
"Tranche A Letters of Credit" means, at any time, Letters of Credit
in an amount equal to the lesser of (i) the Total Tranche A Credit-Linked
Deposit and (ii) the aggregate amount of outstanding Letters of Credit at such
time. Letters of Credit will from time to time be deemed to be Tranche A Letters
of Credit or Revolving Letters of Credit in accordance with the provisions of
Section 2.05(a).
"Tranche A Maturity Date" means the Term Loan Maturity Date.
"Tranche A Participation Fee" means the participation fee payable to
the Tranche A Lenders pursuant to Section 2.12(c).
"Transactions" means (i) the Recapitalization and the other
transactions described in the preamble to this Agreement, (ii) the execution,
delivery and performance by the Borrower of this Agreement, the borrowing of
Loans and the use of proceeds thereof, (iii) the execution, delivery and
performance by each other Loan Party of each Loan Document to which it is a
party, and (iv) the repurchase by the Borrower of an aggregate principal amount
of $125,000,000 of the 9.25% Notes, an aggregate principal amount of
$195,000,000 of the 10% Notes and an aggregate principal amount of $48,940,000
of its 7.625% Senior Secured Notes due 2006.
"2005 Senior Notes" has the meaning assigned to such term in the
preamble of this Agreement.
"2001 Indenture" means (i) one or more supplemental indentures,
dated on or after January 25, 2001, to the AWNA Senior Note Indenture and (ii)
any other indenture governing Senior Indebtedness entered into on or after
January 25, 2001.
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"2001 Senior Notes" means senior secured notes of AWNA or Allied
Waste issued on or after January 25, 2001 pursuant to the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
provided that any 2001 Senior Notes issued on or after the Restatement Effective
Date do not have a maturity date or any scheduled amortization until after April
15, 2012.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code (and any
similar law) in effect in any applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary that has been
designated by the board of directors of the Borrower as an "Unrestricted
Subsidiary" pursuant to and in accordance with the provisions of Section 6.16.
Each of the Unrestricted Subsidiaries on the Restatement Effective Date is
identified on Schedule 3.08.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001.
"Voting Stock" of any Person means capital stock of such Person that
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"wholly owned subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the ordinary voting power or 100%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held by such Person or one or more wholly owned
subsidiaries of such Person or by such Person and one or more wholly owned
subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing" or "Term Borrowing") or by
Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be
47
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights, (f) all references to
the "date hereof" or the "date of this Agreement" shall be deemed to refer to
July 21, 1999 and (g) all references to "redemption" of Indebtedness shall be
construed to include the giving of any redemption notice with respect to such
Indebtedness by the issuer thereof and any deposit with the trustee for the
holders of such Indebtedness, not earlier than the date of such notice, of funds
necessary to effect such redemption, in each case pursuant to the indenture
governing such Indebtedness.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided that
if the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Restatement Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, (a) each Term Lender has agreed to make Term Loans to the Borrower
on the Restatement Effective Date in an aggregate principal amount not exceeding
its Term Loan Commitments and (b) each Revolving Lender agrees to make Revolving
Loans to the Borrower from time to time during the Revolving Availability Period
in an aggregate principal amount that will not result in such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid in respect of
Term Loans may not be reborrowed.
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SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(a) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall comply with Section 2.17 and
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(b) At the commencement of each Interest Period for any new
Eurodollar Borrowing (but not any renewal or extension of any outstanding
Eurodollar Borrowing), such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000; provided that a
Eurodollar Borrowing may be in an aggregate amount that is equal to (i) the
entire unused balance of the total Revolving Commitments or (ii) the amount
required to reimburse any LC Disbursement as contemplated by Section
2.05(b)(iii), in each case in the event that such entire unused balance or such
required reimbursement amount is less than $10,000,000. At the time that each
ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(b)(iii). Each Swingline Loan shall be in an amount that is an
integral multiple of $100,000 and not less than $1,000,000. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 35 Eurodollar Borrowings
outstanding.
(c) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, on the day of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved
49
by the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender severally agrees to make
Swingline Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of such Swingline
Lender's outstanding Swingline Loans exceeding its Swingline Commitment, (ii)
the aggregate principal amount of outstanding Swingline Loans exceeding
$50,000,000 or (iii) the sum of the total Revolving Exposures exceeding the
total Revolving Commitments; provided that such Swingline Lender may, but shall
not be required to, make a Swingline Loan to refinance an outstanding Swingline
Loan. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan and
the location and number of the Borrower's account to which funds are to be
disbursed, which account shall comply with the requirements of Section 2.06. The
Administrative Agent will promptly advise
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the Swingline Lenders of any such notice received from the Borrower. Each
Swingline Lender shall make each Swingline Loan available to the Borrower (pro
rata, in accordance with the Swingline Commitments of the Swingline Lenders) by
means of a credit or wire transfer to the account specified in writing by the
Borrower in such notice (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(b)(iii), by
remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on
the requested date of such Swingline Loan.
(c) Each Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the outstanding Swingline Loans made by such
Swingline Lender. Such notice shall specify the aggregate amount of Swingline
Loans in which Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Revolving
Lender, specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the applicable Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Swingline Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall promptly notify the Borrower in writing of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the applicable Swingline Lender. Any amounts received by any Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Lenders that shall have
made their payments pursuant to this paragraph and to such Swingline Lender, as
their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
(d) Addition of a Swingline Lender. A Revolving Lender may become an
additional Swingline Lender hereunder upon the delivery of (i) a written
agreement among the Borrower, the Administrative Agent, each Swingline Lender
and such Revolving Lender and (ii) an Assignment and Acceptance Agreement (or
Agreements, if
51
more than one Swingline Lender) pursuant to Section 9.04(b) with respect to an
amount of Swingline Commitments and Swingline Loans to be agreed upon between
such Revolving Lender and each assigning Swingline Lender. The Administrative
Agent shall notify the Revolving Lenders of any such additional Swingline
Lender.
SECTION 2.05. Letters of Credit. (a) General. On the Restatement
Effective Date, the Existing Letters of Credit will automatically, without any
action on the part of any Person, be deemed to be Letters of Credit issued
hereunder for the account of the Borrower for all purposes of this Agreement and
the other Loan Documents. In addition, subject to the terms and conditions set
forth herein (including, with respect to issuances of Tranche A Letters of
Credit, Section 2.20), the Borrower may request the issuance of (and the
applicable Issuing Bank, as specified by the Borrower, shall issue) (i) Tranche
A Letters of Credit, at any time and from time to time during the Tranche A
Availability Period, and (ii) Revolving Letters of Credit, at any time and from
time to time during the Revolving Availability Period, in each case for the
Borrower's own account or for the account of any other member of the Allied
Group (provided that the Borrower will be a co-applicant and a co-obligor with
respect to each Letter of Credit issued for the account of any other member of
the Allied Group), in a form reasonably acceptable to the Administrative Agent
and the relevant Issuing Bank. For purposes hereof, (i) Letters of Credit shall
at all times and from time to time be deemed to be Tranche A Letters of Credit
in the amount specified in clause (i) of the definition of Tranche A Letters of
Credit and be deemed to be Revolving Letters of Credit only to the extent, and
in an amount by which, the aggregate amount of outstanding Letters of Credit
exceeds such amount specified in clause (i) of the definition of Tranche A
Letters of Credit, (ii) drawings under any Letter of Credit shall be deemed to
have been made under Revolving Letters of Credit for so long as, and to the
extent that, there are any undrawn Revolving Letters of Credit outstanding (and
thereafter shall be deemed to have been made under Tranche A Letters of Credit)
and (iii) any Letter of Credit that expires or terminates will be deemed to be a
Revolving Letter of Credit, for so long as, and to the extent that, there are
outstanding Revolving Letters of Credit immediately prior to such expiration or
termination; provided, however, that, at any time during which an Event of
Default shall have occurred and be continuing, (A) Letters of Credit shall be
deemed to be Revolving Letters of Credit and Tranche A Letters of Credit, (B)
drawings under Letters of Credit shall be deemed to have been made under
Revolving Letters of Credit and Tranche A Letters of Credit and (C) any Letter
of Credit that expires or terminates shall be deemed to be a Revolving Letter of
Credit and a Tranche A Letter of Credit, in each case pro rata based upon (1)
the Revolving LC Exposure immediately prior to such Event of Default determined
in accordance with the foregoing provisions of this Section 2.05(a) and (2) the
Tranche A LC Exposure immediately prior to such Event of Default determined in
accordance with the foregoing provisions of this Section 2.05(a). To the extent
necessary to implement the foregoing, the identification of a Letter of Credit
as a Revolving Letter of Credit or a Tranche A Letter of Credit may change from
time to time and a portion of a Letter of Credit may be deemed to be a Tranche A
Letter of Credit and the remainder be deemed to be a Revolving Letter of Credit.
Notwithstanding the foregoing, the entire face amount of any Letter of Credit
with an expiration date after the Revolving Maturity Date shall at all times be
deemed to be a Tranche A Letter of Credit, subject to the limitations set forth
in clause (i) of the third sentence of this paragraph (a).
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In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the relevant Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with subparagraph
(i) of this Section), the amount of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by an
Issuing Bank, the Borrower (and any other member of the Allied Group for whose
account such Letter of Credit is issued) shall also submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (x) the LC
Exposure shall not exceed the sum of the total Revolving Commitments and the
Total Tranche A Credit-Linked Deposit, (y) the total Revolving Exposures shall
not exceed the total Revolving Commitments and (z) the Tranche A LC Exposure
shall not exceed the Total Tranche A Credit-Linked Deposit.
(i) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on (A) with respect to any Revolving Letter of
Credit, the date that is five Business Days prior to the Revolving
Maturity Date and (B) with respect to any Tranche A Letter of Credit, the
date that is five Business Days prior to the Tranche A Maturity Date.
(ii) Participations. (A) By the issuance of a Revolving Letter of
Credit (or an amendment to a Revolving Letter of Credit increasing the
amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to
each Revolving Lender, and each Revolving Lender hereby acquires from the
applicable Issuing Bank, a participation in such Letter of Credit
(including each Existing Letter of Credit) equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the
applicable Issuing Bank, such Lender's Applicable Percentage of each
Revolving LC Disbursement made by such Issuing Bank and not reimbursed by
the Borrower or
53
any other account party on the date due as provided in paragraph (b)(iii)
of this Section, or of any reimbursement payment required to be refunded
to the Borrower or any other account party for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Revolving Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Revolving
Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(B) Each Tranche A Lender shall pay to the Administrative Agent its
Tranche A Credit-Linked Deposit in full on the Restatement Effective Date.
By the issuance of a Tranche A Letter of Credit (or an amendment to a
Tranche A Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Tranche A
Lenders, such Issuing Bank hereby grants to each Tranche A Lender, and
each Tranche A Lender hereby acquires from such Issuing Bank, a
participation in such Tranche A Letter of Credit (including each Existing
Letter of Credit) equal to such Tranche A Lender's Applicable Percentage
of the aggregate amount available to be drawn under such Tranche A Letter
of Credit. In consideration and in furtherance of the foregoing, each
Tranche A Lender hereby absolutely and unconditionally agrees that if an
Issuing Bank makes a Tranche A LC Disbursement which is not reimbursed by
the Borrower on the date due as provided in paragraph (b)(iii) of this
Section, or is required to refund any reimbursement payment in respect of
a Tranche A LC Disbursement to the Borrower for any reason, the
Administrative Agent shall reimburse the applicable Issuing Bank for the
amount of such Tranche A LC Disbursement from such Tranche A Lender's
Tranche A Credit-Linked Deposit on deposit in the Tranche A Credit-Linked
Deposit Account. In the event the Tranche A Credit-Linked Deposit Account
is charged by the Administrative Agent to reimburse the applicable Issuing
Bank for an unreimbursed Tranche A LC Disbursement, the Borrower shall
have the right, at any time prior to the Tranche A Maturity Date, to pay
over to the Administrative Agent in reimbursement thereof an amount equal
to the amount so charged, and such payment shall be deposited by the
Administrative Agent in the Tranche A Credit-Linked Deposit Account. Each
Tranche A Lender acknowledges and agrees that its obligation to acquire
and fund participations in respect of Tranche A Letters of Credit pursuant
to this subparagraph (B) is unconditional and irrevocable and shall not be
affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Tranche A Letter of Credit or the occurrence and
continuance of a Default or the return of the Tranche A Credit Linked
Deposits, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Without limiting the
foregoing, each Tranche A Lender irrevocably authorizes the Administrative
Agent to apply amounts of its Tranche A Credit-Linked Deposit as provided
in this subparagraph (B).
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(iii) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying (or causing any other account
party in respect of such Letter of Credit to pay) to the Administrative
Agent an amount equal to such LC Disbursement not later than the Business
Day immediately following the day that the Borrower receives notice that
an LC Disbursement has been made; provided that, if such LC Disbursement
is not less than $1,000,000, the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan.
(A) If the Borrower fails to make (or cause another account
party to make) any payment due under paragraph (b)(iii) above with
respect to a Revolving Letter of Credit when due, the Administrative
Agent shall notify each Revolving Lender of the applicable Revolving
LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment
then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly
pay to the relevant Issuing Bank the amounts so received by it from
the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such
payment to the appropriate Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and such Issuing
Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse an Issuing Bank for
any Revolving LC Disbursement (other than the funding of ABR
Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower (or any other
account party in respect of the relevant Revolving Letter of Credit)
of its obligation to reimburse such LC Disbursement.
(B) If the Borrower fails to make (or cause another account
party to make) any payment due under paragraph (b)(iii) above with
respect to a Tranche A Letter of Credit, the Administrative Agent
shall notify each Tranche A Lender of the applicable Tranche A LC
Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof, and the
Administrative Agent shall promptly pay to the applicable Issuing
Bank each Tranche A Lender's Applicable Percentage of such Tranche A
LC Disbursement from such
55
Tranche A Lender's Tranche A Credit-Linked Deposit. Promptly
following receipt by the Administrative Agent of any payment by the
Borrower in respect of any Tranche A LC Disbursement, the
Administrative Agent shall distribute such payment to the applicable
Issuing Bank or, to the extent payments have been made from the
Tranche A Credit-Linked Deposits, to the Tranche A Credit-Linked
Deposit Account to be added to the Tranche A Credit-Linked Deposits
of the Tranche A Lenders in accordance with their Applicable
Percentages. The Borrower acknowledges that each payment made
pursuant to this subparagraph (B) in respect of any Tranche A LC
Disbursement is required to be made for the benefit of the
distributees indicated in the immediately preceding sentence. Any
payment made from the Tranche A Credit-Linked Deposit Account, or
from funds of the Administrative Agent, pursuant to this paragraph
to reimburse an Issuing Bank for any Tranche A LC Disbursement shall
not constitute a Loan and shall not relieve the Borrower (or any
other account party in respect of the relevant Tranche A Letter of
Credit) of its obligation to reimburse such LC Disbursement.
(iv) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (b)(iii) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (1) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (2) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect, (3) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit (except as otherwise provided below), or
(4) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower's obligations hereunder. Neither the Administrative
Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Bank; provided that the
foregoing shall not be construed to excuse such Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by
the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank's failure to exercise care
when
56
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree
that, in the absence of gross negligence or willful misconduct on the part
of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, an Issuing Bank may, in
its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice
or information to the contrary, or refuse to accept and make payment upon
such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(v) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The applicable
Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment
and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Revolving Lenders or Tranche A Lenders with respect
to any such LC Disbursement.
(vi) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower (or any other account party) reimburses such LC Disbursement, at
(1) in the case of a Revolving LC Disbursement, the rate per annum then
applicable to ABR Revolving Loans and (2) in the case of a Tranche A LC
Disbursement, the rate per annum then applicable to ABR Term Loans;
provided that, if the Borrower fails to reimburse (or cause another
account party to reimburse) such LC Disbursement when due pursuant to
paragraph (b)(iii) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Revolving Lender pursuant to paragraph (b)(iii)(A)
of this Section or from the Tranche A Credit-Linked Deposit of any Tranche
A Lender pursuant to paragraph (b)(iii)(B) of this Section to reimburse
such Issuing Bank shall be for the account of such Lender to the extent of
such payment.
(vii) Addition and Replacement of an Issuing Bank. An Issuing Bank
may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Revolving Lenders and the
Tranche A Lenders of any such replacement of an Issuing Bank. At the time
any such
57
replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (1)
the successor Issuing Bank shall have all the rights and obligations of
the relevant Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (2) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters
of Credit. A Revolving Lender may become an additional Issuing Bank
hereunder pursuant to a written agreement among the Borrower, the
Administrative Agent and such Revolving Lender. The Administrative Agent
shall notify the Revolving Lenders of any such additional Issuing Bank.
Notwithstanding the foregoing, the Borrower shall not designate any
Revolving Lender as an Issuing Bank hereunder if, after giving effect
thereto, there would be more than fifteen Issuing Banks (other than
Issuing Banks with no outstanding Letters of Credit other than Existing
Letters of Credit).
(viii) Cash Collateralization. If any Event of Default under Section
7.01 (i), (ii), (vii)(A), (viii) or (ix) shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Tranche A Lenders and Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (viii) or (ix) of Section 7.01. Each such
deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Tranche A Lenders and Revolving
58
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to
the Borrower within three Business Days after all Events of Default have
been cured or waived. If the Borrower is required to provide an amount of
cash collateral hereunder pursuant to Section 2.11(b), such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower as and
to the extent that, after giving effect to such return, the Borrower would
remain in compliance with Section 2.11(b) and no Default shall have
occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(b)(iii) shall be remitted by the
Administrative Agent to the relevant Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower each agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section.
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The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted
or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so
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notifies the Borrower, then, so long as an Event of Default is continuing, (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as
a Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would end after a date on which any principal of the Loans of such
Class is scheduled to be repaid and (ii) the sum of the aggregate principal
amount of outstanding Eurodollar Borrowings of such Class with Interest Periods
ending on or prior to such scheduled repayment date plus the aggregate principal
amount of outstanding ABR Borrowings of such Class would be less than the
aggregate principal amount of Loans of such Class required to be repaid on such
scheduled repayment date.
SECTION 2.08. Termination and Reduction of Commitments; Return of
Tranche A Credit-Linked Deposits. (a) Unless previously terminated, (i) the Term
Loan Commitments shall terminate at 5:00 p.m., New York City time, on the
Restatement Effective Date and (ii) the Revolving Commitments shall terminate at
5:00 p.m., New York City time, on the Revolving Maturity Date. If any Tranche A
Letter of Credit remains outstanding on the Tranche A Maturity Date, the
Borrower will deposit with the Administrative Agent an amount in cash equal to
100% of the aggregate undrawn amount of such Letter of Credit to secure the
Borrower's reimbursement obligations with respect to any drawings that may occur
thereunder. Subject only to the Borrower's compliance with its obligations under
the preceding sentence, any amount of the Tranche A Credit-Linked Deposits held
in the Tranche A Credit-Linked Deposit Account will be returned to the Tranche A
Lenders on the Tranche A Maturity Date pursuant to Section 2.10(d).
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving, Swingline or Term Loan Commitments; provided that (i)
each reduction of the Revolving, Swingline or Term Loan Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the sum of the Revolving
Exposures would exceed the total Revolving Commitments. The Borrower may at any
time or from time to time direct the Administrative Agent to reduce the Total
Tranche A Credit-Linked Deposits; provided that (i) each reduction of the
Tranche A Credit-Linked Deposits shall be in an amount that is an integral
multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall
not direct the Administrative Agent to reduce the Tranche A Credit-Linked
Deposits if, after giving effect to such reduction (and to the provisions of
Section 2.05(a)), the aggregate Tranche A LC Exposure would exceed the Total
Tranche A Credit-Linked Deposit or the Revolving Exposure would exceed the total
Revolving Commitments. In the event the Tranche A Credit-Linked Deposits shall
be reduced as provided in the preceding sentence, the Administrative Agent will
return all amounts in the Tranche A Credit-Linked Deposit Account in excess of
the reduced Total Tranche A Credit-Linked Deposit to the Tranche A Lenders,
ratably in accordance with their Applicable Percentages of the
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Total Tranche A Credit-Linked Deposit (as determined immediately prior to such
reduction).
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving, Swingline or Term Loan
Commitments or the Total Tranche A Credit-Linked Deposit under paragraph (b) of
this Section, or any required reduction of the Revolving Commitments under
paragraph (b) of this Section, at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination of the
Revolving, Swingline or Term Loan Commitments or reduction of the Total Tranche
A Credit-Linked Deposit shall be permanent. Each termination of the Revolving,
Swingline or Term Loan Commitments or reduction of the Total Tranche A
Credit-Linked Deposit shall be made ratably among the applicable Lenders in
accordance with their Applicable Percentages.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Revolving Lender the then unpaid principal amount of each
Revolving Loan of such Revolving Lender on the Revolving Maturity Date, (ii) to
the Administrative Agent for the account of each Term Lender (A) the then unpaid
principal amount of each Term Loan of such Term Lender as provided in Section
2.10 and (B) the then unpaid principal amount of each Term Loan of such Term
Lender on the Term Loan Maturity Date and (iii) to the Administrative Agent for
the account of each Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least ten Business Days after such Swingline Loan is made;
provided that on each date that a Revolving Borrowing is made, the Borrower
shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
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(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Amortization of Term Loans and Tranche A Credit-Linked
Deposits. (a) The Borrower shall repay Term Borrowings in an aggregate principal
amount of $13,500,000 on September 30 of each year, beginning on September 30,
2005.
(b) If the initial aggregate amount of the Lenders' Term Loan
Commitments exceeds the aggregate principal amount of Term Loans that are made
on the Restatement Effective Date, then the scheduled repayments of Term
Borrowings to be made pursuant to this Section shall be reduced ratably by an
aggregate amount equal to such excess. Any prepayment of a Term Borrowing shall
be applied to reduce the subsequent scheduled repayments of the Term Borrowings
to be made pursuant to this Section ratably; provided that, at the option of the
Borrower, any prepayment made pursuant to Section 2.11(a) may be applied either
(a) first to reduce the next scheduled repayments of the Term Borrowings to be
made pursuant to this Section in order of maturity or (b) ratably. All Excess
Cash Flow to be applied at any time to prepay Term Borrowings pursuant to
Section 2.11(d) shall be applied, at the Borrower's option, (a) first to reduce
the next scheduled repayments of the Term Borrowings to be made pursuant to this
Section in order of maturity or (b) ratably.
(c) Each payment of Borrowings pursuant to this Section 2.10 shall
be accompanied by accrued interest on the principal amount paid to but excluding
the date of payment.
(d) The Administrative Agent shall return Tranche A Credit-Linked
Deposits in the aggregate amount of $5,000,000 to the Tranche A Lenders on
September 30 of each year, beginning on September 30, 2005. To the extent not
previously returned, all Tranche A Credit-Linked Deposits shall be returned to
the Tranche A Lenders on the Tranche A Maturity Date. Any optional return of
Tranche A Credit-Linked Deposits effected pursuant to Section 2.08 shall be
applied to reduce the subsequent scheduled returns of Tranche A Credit-Linked
Deposits to be effected
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pursuant to this Section ratably. Each return of Tranche A Credit-Linked
Deposits pursuant to this Section 2.10(d) shall be accompanied by accrued
interest on the amount of Tranche A Credit-Linked Deposits paid to but excluding
the date of return.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(b)(viii)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Available
Proceeds are received by or on behalf of Allied Waste, the Borrower or any
Restricted Subsidiary in respect of any Prepayment Event, the Borrower shall,
within three Business Days after such Net Available Proceeds are received,
prepay Term Borrowings in an aggregate amount equal to the amount of the
Relevant Percentage of such Net Available Proceeds; provided that
(i) in the case of Net Available Proceeds arising out of the sale of
Securitization Assets, the issuance of Permitted Cure Securities or the
issuance or incurrence of Indebtedness pursuant to Section 6.01(a)(xv) or
Section 6.01(a)(xviii), the Borrower shall prepay Term Borrowings in an
aggregate amount equal to 100% of such Net Available Proceeds; provided,
however, that the Borrower shall not be required to prepay Term Borrowings
with Net Available Proceeds received in connection with the sale of
Securitization Assets unless the Net Available Proceeds received in
connection with all such sales exceeds $5,000,000 in the aggregate in any
fiscal year of the Borrower (in which case the Borrower shall be required
to prepay Term Borrowings in an amount equal to 100% of such Net Available
Proceeds received);
(ii) subject to clause (iv) below, in the case of the issuance of
Qualifying Senior Secured Indebtedness pursuant to Section 6.01(a)(xiii),
(A) the Net Available Proceeds received in connection with the issuance
after the Restatement Effective Date of up to $1,500,000,000 of the
initial aggregate principal amount of such Qualifying Senior Secured
Indebtedness may (to the extent such Net Available Proceeds are not
applied to prepay Term Borrowings pursuant to this Section 2.11(c)) be
applied to the repayment, redemption or repurchase of Targeted Senior
Secured Indebtedness, (B) the Net Available Proceeds of additional
issuances of such Qualifying Senior Secured Indebtedness shall be applied
(x) if received when the Leverage Ratio is 3.75 to 1.00 or greater, up to
50% to the repayment, redemption or repurchase of Targeted Senior
Secured Indebtedness (with the remaining portion of which applied to the
prepayment of the Term Loans) and (y) if received when the Leverage Ratio
is less than 3.75 to 1.00, up to 100% to the repayment, redemption or
repurchase of Targeted Senior
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Secured Indebtedness (with the remaining portion of which, if any, applied
to the prepayment of the Term Loans);
(iii) subject to clause (iv) below, 100% of the Net Available
Proceeds from the issuance of Permitted Subordinated Debt pursuant to
Section 6.01(a)(xiv) may be applied to the repayment, redemption or
repurchase of Refinanceable Indebtedness;
(iv) notwithstanding the foregoing, 100% of any Net Available
Proceeds from the issuance in a Permitted Refinancing Transaction of
Qualifying Senior Secured Indebtedness or Permitted Subordinated Debt
pursuant to Section 6.01(a)(xiii) or (xiv) which have not been applied to
the repayment, repurchase or redemption of the relevant Targeted Senior
Secured Indebtedness or Refinanceable Indebtedness by the 120th day
following such issuance, shall be applied to the prepayment of Term Loans
on such 120th day; and
(v) in the case of the issuance of Qualifying Senior Unsecured
Indebtedness pursuant to Section 6.01(a)(xxiii), the Net Available
Proceeds thereof may be applied to the Optional Repurchase of
Refinanceable Public Notes or to the creation of cash-collateralized
letter of credit facilities in a Permitted LC or Public Notes Financing
Transaction, provided that 100% of such Net Available Proceeds which have
not been so applied by the 150th day following such issuance shall be
applied, not later than such 150th day, to the prepayment of Term Loans.
For purposes of determining the amount of Indebtedness that is permitted or
required to be repaid, redeemed or repurchased pursuant to clause (ii), (iii),
(iv) or (v) above in circumstances where the determination of such amount is
based on the Net Available Proceeds of a separate issuance of Indebtedness, the
Net Available Proceeds of such separate issuance of Indebtedness shall be deemed
to equal the Net Available Proceeds thereof without giving effect to any
deduction of fees or expenses of such separate issuance of Indebtedness that are
paid with the proceeds of Revolving Loans or Swingline Loans in accordance with
Section 5.16. Notwithstanding the foregoing, in the case of any event described
in clause (a) of the definition of the term Prepayment Event, if the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer
to the effect that the Borrower or any Subsidiary intends to apply the Net
Available Proceeds from such event, within one year after receipt of such Net
Available Proceeds, to acquire real property, equipment or other tangible assets
(including pursuant to Permitted Acquisitions) to be used in the business of the
Borrower and the Subsidiaries, and certifying that no Event of Default has
occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of Net Available Proceeds so applied by the end of
such one-year period. The amount of the Relevant Percentage of such Net
Available Proceeds not so applied by the end of such one-year period shall be
applied to the prepayment of Term Borrowings at such time. Notwithstanding any
other provision of this Agreement, including the provisions of Sections 2.10 and
2.11, any and all proceeds, including any Net Available Proceeds, from the sale
or disposition of Collateral subject to Liens under the Security Agreements or
the
65
Pledge Agreements at the time of such sale or disposition and made pursuant to
the exercise of remedies under such Security Documents shall be applied in
accordance with the provisions of the applicable Security Agreement or Pledge
Agreement rather than the provisions of this Agreement. Notwithstanding any
provision of this Agreement to the contrary, in the case of a Prepayment Event
referred to in clause (d) of the definition of "Prepayment Event", the Borrower
and/or any applicable Restricted Subsidiary will for purposes hereof (i) be
deemed to have received a cash payment in respect of such Prepayment Event to
the extent that the Borrower or such Restricted Subsidiary, as the case may be,
receives a cash payment in respect of the applicable Securitization Assets from
the applicable Securitization Vehicle and such cash payment is derived from
proceeds from the issuance of Third Party Securities and (ii) will not be deemed
to have received a cash payment from such Prepayment Event to the extent that
such Prepayment Event occurs in connection with ongoing sales of Securitization
Assets to such Securitization Vehicle that are purchased by it with the proceeds
from collections of Securitization Assets previously purchased by it pursuant to
such Securitization.
(d) Following the end of each Excess Cash Flow Calculation Period,
commencing with the Excess Cash Flow Calculation Period ending March 31, 2005,
the Borrower shall prepay Term Loans in an aggregate amount equal to 50% of
Excess Cash Flow for such Excess Cash Flow Calculation Period minus the
aggregate amount of any voluntary prepayments of the Term Loans and Revolving
Loans (to the extent accompanied by a corresponding permanent reduction of the
Revolving Commitment) during such Excess Cash Flow Calculation Period. Each
prepayment pursuant to this paragraph shall be made on or before the date on
which financial statements are delivered pursuant to Section 5.04(b) with
respect to the most recent fiscal quarter included in the Excess Cash Flow
Calculation Period in respect of which Excess Cash Flow is being calculated (and
in any event within 60 days after the end of such fiscal quarter).
(e) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lenders) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing or a reduction of the Total Tranche A
Credit-Linked Deposits, not later than 1:00 p.m., New York City time, three
Business Days before the date of prepayment or reduction, (ii) in the case of
prepayment of an ABR Borrowing, not later than 1:00 p.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time, on
the date of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date, the principal amount of each Borrowing or portion thereof
to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.08, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Loan or a Borrowing of the same Type as provided in
Section 2.02, except as
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necessary to apply fully the required amount of a mandatory prepayment. Except
as otherwise set forth herein, (i) each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing and (ii) each
reduction of the Total Tranche A Credit-Linked Deposit shall be applied ratably
to the Tranche A Credit-Linked Deposits of the Tranche A Lenders. Each optional
prepayment of Borrowings made pursuant to Section 2.11(a) shall be in an amount
that is an integral multiple of $1,000,000 and not less than $5,000,000 (or the
entire outstanding principal amount of any Class of Borrowings, if such amount
is less than $5,000,000). Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the rate of 0.75% per annum on the daily unused amount of the
Revolving Commitment of such Lender, during the period from and including the
Restatement Effective Date to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the Restatement Effective Date. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees, a Revolving Commitment of a Lender shall be deemed
to be used to the extent of the outstanding Revolving Loans and LC Exposure of
such Lender (and the Swingline Exposure of such Lender shall be disregarded for
such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Revolving Letters of Credit, which shall accrue at the
Applicable Margin from time to time in effect in respect of Eurodollar Revolving
Loans on the daily amount of such Lender's Revolving LC Exposure (excluding any
portion thereof attributable to unreimbursed Revolving LC Disbursements) during
the period from and including the Restatement Effective Date to but excluding
the date on which such Lender ceases to have any Revolving LC Exposure, and (ii)
to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and such Issuing Bank, not to
exceed 0.25% per annum, on the outstanding amount of each Revolving Letter of
Credit issued by such Issuing Bank during the period from and including the date
of issuance thereof to but excluding the date of termination, expiration or
drawing in full of such Revolving Letter of Credit, as well as such Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Revolving Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees in respect of Revolving Letters
of Credit accrued through and including the last day of March, June, September
and December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Restatement
Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to an Issuing Bank pursuant to this paragraph shall be
payable
67
within 10 days after demand. All participation fees and fronting fees in respect
of Revolving Letters of Credit shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(c) The Borrower agrees to pay (i) in addition to the fees payable
to the Tranche A Lenders pursuant to Section 2.20(b), to the Administrative
Agent for the account of each Tranche A Lender a participation fee with respect
to its participations in Tranche A Letters of Credit, which shall accrue at the
Applicable Margin from time to time in effect with respect to the Tranche A
Participation Fee on the daily amount of such Tranche A Lender's Tranche A
Credit-Linked Deposit during the period from and including the Restatement
Effective Date to but excluding the date on which the entire amount of such
Lender's Tranche A Credit-Linked Deposit is returned to it and (ii) to each
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and such Issuing Bank, not to exceed
0.25% per annum, on the outstanding amount of each Tranche A Letter of Credit
(including each Existing Letter of Credit that is a Tranche A Letter of Credit)
issued by such Issuing Bank from and including the date of issuance thereof to
but excluding the date of termination, expiration or drawing in full of such
Tranche A Letter of Credit, as well as such Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Tranche A Letter
of Credit or processing of drawings thereunder. Participation fees and fronting
fees in respect of Tranche A Letters of Credit accrued through and including the
last day of March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first such
date to occur after the Restatement Effective Date; provided that all such fees
shall be payable on the date on which the Tranche A Credit-Linked Deposits are
returned to the Tranche A Lenders and any such fees accruing after the date on
which the Tranche A Credit-Linked Deposits are returned to the Tranche A Lenders
shall be payable on demand. Any other fees payable to any Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees in respect of Tranche A Letters of Credit
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(d) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to an Issuing Bank,
in the case of fees payable to it) for distribution, in the case of commitment
fees and participation fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Margin.
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(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or Tranche A LC Disbursement or any fee or other amount payable by
the Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section, (ii) in the case of
overdue unreimbursed amounts with respect to any Tranche A LC Disbursement, 2%
plus the rate otherwise applicable to such Tranche A LC Disbursement as provided
in Section 2.05(b) or (iii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate and
interest on Tranche A Credit-Linked Deposits shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to (i) the
commencement of any Interest Period for a Eurodollar Borrowing or (ii) the
determination of the Benchmark LIBOR Rate (as defined in Section 2.20(b)) on any
day:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest Period
or the Benchmark LIBOR Rate for such day; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period or the Benchmark LIBOR
Rate for
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such day will not adequately and fairly reflect the cost to such Lenders
of making or maintaining their Loans included in such Borrowing or such
Tranche A Credit-Linked Deposit, as applicable, for such Interest Period
or such day, as the case may be;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) the Tranche A Credit-Linked Deposits
shall be invested so as to earn a return equal to the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or the Administrative Agent (except
any such reserve requirement reflected in the Adjusted LIBO Rate, where
applicable) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the Administrative
Agent or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein or any Tranche A Credit-Linked Deposit;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank or the Administrative Agent of participating in, issuing or
maintaining any Letter of Credit or any Tranche A Credit-Linked Deposit or to
reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or Issuing Bank or the Administrative Agent, as the case
may be, such additional amount or amounts as will compensate such Lender or
Issuing Bank or the Administrative Agent, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank or the Administrative Agent
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Bank's or the Administrative Agent's capital or on the capital of such Lender's
or Issuing Bank's or the Administrative Agent's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender or the Administrative Agent, or the Letters of
Credit issued by such Issuing Bank, to a level
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below that which such Lender or such Issuing Bank or the Administrative Agent or
such Lender's or Issuing Bank's or the Administrative Agent's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or Issuing Bank's or the Administrative Agent's policies and the
policies of such Lender's or Issuing Bank's or the Administrative Agent's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or Issuing Bank or the Administrative Agent, as
the case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank or the Administrative Agent or such Lender's or Issuing
Bank's or the Administrative Agent's holding company for any such reduction
suffered.
(c) A certificate of a Lender or Issuing Bank or the Administrative
Agent setting forth the amount or amounts necessary to compensate such Lender or
Issuing Bank or the Administrative Agent or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender or Issuing Bank or the Administrative Agent, as the case may be,
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank or
the Administrative Agent to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's or Issuing Bank's or the Administrative
Agent's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or an Issuing Bank or the Administrative
Agent pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender or Issuing Bank or the
Administrative Agent, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
Issuing Bank's or the Administrative Agent's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 90-day period referred to
above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing, Section 2.17, and not this
Section 2.15, is the only section of this Agreement that deals with increased
costs with respect to Taxes.
SECTION 2.16. Break Funding Payments. In the event of
(a) the payment of any principal of any Eurodollar Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(e) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a
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Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
consist solely of an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the Eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Any and all payments by or on account of any obligation of the
Administrative Agent pursuant to Section 2.20(b) hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Administrative Agent shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the Administrative
Agent shall so notify the Borrower and advise it of the additional amount
required to be paid so that the sum payable by the Administrative Agent pursuant
to Section 2.20(b) after making all required deductions (including deductions
applicable to additional sums payable under this Section) to the Tranche A
Lenders is an amount from the Administrative Agent equal to the sum they would
have received from the Administrative Agent had no deductions been made, (ii)
the Borrower shall pay such additional amount to the Administrative Agent, (iii)
the Administrative Agent shall make all required deductions, (iv) the
Administrative Agent shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law and (v) the Borrower
shall indemnify, within 10 days after written demand therefor, the
Administrative Agent for the full amount of any deductions paid by the
Administrative Agent with respect to any payments made on account of any
obligation of the Administrative Agent pursuant to Section 2.20(b).
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the applicable Issuing Bank, within 10 days after written demand
therefor, for the full
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amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability, providing a
reasonably detailed explanation and calculation thereof, prepared in good faith
and delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Foreign Lender (and, where required by applicable law,
such Foreign Lender's beneficial owners) shall deliver to the Borrower (with a
copy to the Administrative Agent) two copies of either United States Internal
Revenue Service Form W-8BEN or Form W-8ECI or any subsequent versions thereof or
successors thereto, or, in the case of a Foreign Lender claiming exemption from
U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8BEN, or any subsequent
versions thereof or successors thereto (and, if such Foreign Lender (and, as
applicable, such Foreign Lender's beneficial owners) delivers a Form W-8BEN, a
certificate in the form of the certificate attached hereto as Exhibit L (the
"Portfolio Exemption Certificate") representing, inter alia, that such Foreign
Lender (and, as applicable, such Foreign Lender's beneficial owners) is not a
bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder
of the Borrower (within the meaning of Section 871(h)(3)(B) of the Code) and is
not a controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Code)), and such other forms or statements
reasonably requested by the Borrower, in the case of all the foregoing, properly
completed and duly executed by such Foreign Lender (and, as applicable, such
Foreign Lender's beneficial owners) claiming complete exemption from, or reduced
rate of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement or any other Loan Document. Such forms shall be delivered by each
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners) on
or before the date it becomes a party to this Agreement or designates a new
lending office. In addition, each Foreign Lender (and, as applicable, such
Foreign Lender's beneficial owners) shall deliver such forms promptly upon the
obsolescence, expiration or invalidity of any form previously delivered by such
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners). In
the case of a Foreign Lender (and, as applicable, such Foreign Lender's
beneficial owners) that delivers a Portfolio Interest Exemption Certificate,
such Foreign Lender (and, as applicable, its beneficial
73
owners) shall deliver such certificate and other forms as reasonably requested
by the Borrower on a biannual basis. In addition, each Foreign Lender agrees to
notify promptly the Borrower and the Administrative Agent if it (or, as
applicable, its beneficial owners) is no longer able to deliver, or if it is
required to withdraw or cancel, any form or statement previously delivered by it
pursuant to this Section 2.17(e). Notwithstanding any other provision of this
Section 2.17, a Foreign Lender (and, as applicable, such Foreign Lender's
beneficial owners) shall not be required to deliver any form pursuant to this
Section 2.17(e) that such Foreign Lender (and, as applicable, such Foreign
Lender's beneficial owners) is not legally able to deliver (it being understood
and agreed that the Borrower shall withhold or deduct such amounts from any
payments made to such Foreign Lender that the Borrower reasonably determines are
required by law).
(ii) Each Lender that is not a Foreign Lender and the Administrative
Agent shall deliver to the Borrower (with a copy to the Administrative Agent)
two copies of United States Internal Revenue Service Form W-9, or any subsequent
versions thereof or successors thereto, unless such Lender otherwise establishes
that such Lender is otherwise eligible for an exemption from backup withholding
tax or any other applicable withholding tax. Such forms shall be delivered by
such Lender on or before the date it becomes a party to this Agreement or
designates a new lending office and such Lender shall deliver such forms
promptly upon the obsolescence, expiration or invalidity of any form previously
delivered by such Lender.
(iii) Each Lender (and each former Lender) agrees to indemnify and
hold harmless the Borrower and the Administrative Agent from and against any
Taxes imposed by or on behalf of the United States or any taxing jurisdiction
thereof (including any interest, penalty, addition to tax or additional amount
due) and reasonable expenses arising therefrom or with respect thereto
("Losses") incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes imposed by or on behalf of the
United States or any taxing jurisdiction thereof from any payments made pursuant
to this Agreement which failure resulted from the Borrower's or the
Administrative Agent's reliance on any representation, covenant, form,
statement, certificate or other information provided to it by such Lender
pursuant to this Section 2.17(e) including, for the avoidance of doubt, (x) any
Losses arising by virtue of such Lender being a "conduit entity" within the
meaning of Treasury Reg. Section 1.881-3 or any successor provision thereto and
(y) in the case of a Lender which sells a participation, any Losses which arise
as a result of such participation but, in all cases, excluding Losses resulting
solely from any action or failure to act by the Borrower (other than the
Borrower's reliance on any such representation, covenant, form, statement or
certificate or any such action as required by applicable law or by this
Agreement).
(f) If the Administrative Agent or a Lender or any Issuing Bank
determines, in its reasonable, good faith judgment that it has received a refund
of or with respect to any Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.17 with respect
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to the Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender or such Issuing Bank and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, however, that the Borrower, upon the
request of the Administrative Agent or such Lender or such Issuing Bank, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender or such Issuing Bank in the event the
Administrative Agent or such Lender or such Issuing Bank is required to repay
such refund to such Governmental Authority. Nothing contained in this Section
2.17 shall require the Administrative Agent or any Lender or any Issuing Bank to
make available its tax returns (or any other information relating to its Taxes
which it deems confidential) to the Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 2:00 p.m., New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the reasonable discretion
of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except payments to be made directly to an
Issuing Bank or a Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the Persons specified therein. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments under each Loan Document shall be
made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, to payment of interest and fees then due in respect of Loans,
Letters of Credit and Commitments hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties and (ii) second, to payment of principal of Loans and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
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(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans or
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans or participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or such Issuing
Bank, as the case may be, the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders or such Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(b)(ii) or (b)(iii), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
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SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans or Tranche A Credit-Linked Deposits hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15 or 2.17, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans or Tranche A
Credit-Linked Deposits hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, each Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.20. Credit-Linked Deposit Account. (a) The Tranche A
Credit-Linked Deposits shall be held by the Administrative Agent in the Tranche
A Credit-Linked Deposit Account, and no party other than the Administrative
Agent shall have a right of withdrawal from the Tranche A Credit-Linked Deposit
Account or any other right or power with respect to the Tranche A Credit-Linked
Deposits, except as expressly set forth in Section 2.05, 2.08 or 2.11.
Notwithstanding any provision in this Agreement to the contrary, the sole
funding obligation of each Tranche A Lender in respect of its participation in
Tranche A Letters of Credit shall be satisfied in full upon the funding of its
Tranche A Credit-Linked Deposit on the Restatement Effective Date.
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(b) Each of the Borrower, the Administrative Agent, each Issuing
Bank issuing any Tranche A Letter of Credit and each Tranche A Lender hereby
acknowledges and agrees that each Tranche A Lender is funding its Tranche A
Credit-Linked Deposit to the Administrative Agent for application in the manner
contemplated by Section 2.05(b) and that the Administrative Agent has agreed to
invest the Tranche A Credit-Linked Deposits so as to earn a return (except
during periods when, and to the extent to which, such Tranche A Credit-Linked
Deposits are used to cover unreimbursed Tranche A LC Disbursements, and subject
to Section 2.14) for the Tranche A Lenders equal to a rate per annum, reset
daily on each Business Day for the period until the next following Business Day,
equal to (i) such day's rate for one month LIBOR deposits (the "Benchmark LIBOR
Rate") minus (ii) 0.10% (calculated on the basis of a 365-day or 366-day year,
as applicable). Such amount will be paid to the Tranche A Lenders by the
Administrative Agent quarterly in arrears when Letter of Credit fees are payable
pursuant to Section 2.12. In addition to the foregoing payments by the
Administrative Agent, the Borrower agrees to make payments to the Tranche A
Lenders quarterly in arrears when Letter of Credit fees are payable pursuant to
Section 2.12 with respect to any period (and together with the payment of such
fees) in an amount equal to 0.10% of the daily amount of the Tranche A Lenders'
Tranche A Credit-Linked Deposits during such period.
(c) The Borrower shall have no right, title or interest in or to the
Tranche A Credit-Linked Deposits and no obligations with respect thereto (except
for the reimbursement obligations provided in Section 2.05), it being
acknowledged and agreed by the parties hereto that the making of the Tranche A
Credit-Linked Deposits by the Tranche A Lenders, the provisions of this Section
2.20 and the application of the Tranche A Credit-Linked Deposits in the manner
contemplated by Section 2.05(b) constitute agreements among the Administrative
Agent, each Issuing Bank issuing any Tranche A Letter of Credit and each Tranche
A Lender with respect to the funding obligations of each Tranche A Lender in
respect of its participation in Tranche A Letters of Credit and do not
constitute any loan or extension of credit to the Borrower.
(d) Subject to the Borrower's compliance with the
cash-collateralization requirements set forth in Section 2.05(b)(viii) the
Administrative Agent shall return any remaining Tranche A Credit-Linked Deposits
to the Tranche A Lenders following the occurrence of the Tranche A Maturity
Date.
SECTION 2.21. Incremental Term Loans. (a) At any time prior to the
Term Loan Maturity Date, the Borrower may, by notice to the Administrative
Agent, which shall promptly deliver a copy thereof to each of the Lenders (the
"Incremental Facility Notice"), request the addition of a new tranche of term
loans hereto (the "Incremental Term Loans"); provided, however, that both (x) at
the time of any such request and (y) after giving effect to any such Incremental
Term Loans, no Default shall exist and the Borrower shall be in compliance with
each Financial Performance Covenant (calculated, in the case of clause (y), on a
pro forma basis to give effect to any borrowing of Incremental Term Loans). The
Incremental Term Loans shall (i) be in an aggregate principal amount not in
excess of $250,000,000 but in no event less than $50,000,000, (ii) rank pari
passu in right of payment and of security with the other Loans (and the
Additional Funded LC Facility (if any)), (iii) mature and amortize in a manner
reasonably
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acceptable to the Initial Lenders, but in any event have an average weighted
life equal to or longer than the Term Loans and mature on a date no earlier than
the Term Loan Maturity Date, (iv) have such pricing as may be agreed by the
Borrower and the Persons providing such Incremental Term Loans; provided, that
the yield with respect to the Incremental Term Loans (taking into account
upfront fees paid to Incremental Term Loan lenders) may be no more than 0.25%
per annum greater than the then-current yield with respect to the Term Loans,
the Tranche A Letters of Credit and the Additional Funded LC Facility (if any)
at the time the Incremental Facility Amendment (as defined below) becomes
effective pursuant to its terms (it being understood that the pricing of the
Term Loans, the Tranche A Letters of Credit and/or the Additional Funded LC
Facility (if any) will be increased and/or additional fees will be paid to the
Term Lenders, the Tranche A Lenders or Additional Funded LC Facility lenders (if
any) to the extent necessary to satisfy such requirement), and (v) otherwise be
treated hereunder substantially the same as (and in any event no more favorably
than) the Term Loans (including with respect to the voluntary and mandatory
prepayment provisions); provided, that the terms and provisions applicable to
the Incremental Term Loans may provide for financial or other covenants
different or in addition to those applicable to the Term Loans, the Tranche A
Letters of Credit and the Additional Funded LC Facility (if any) only to the
extent that such terms and provisions are applicable only during periods after
the Term Loan Maturity Date. The Incremental Facility Notice shall (i) set forth
the requested amount of Incremental Term Loans, (ii) offer each Lender the
opportunity to offer a commitment (the "Incremental Commitment") to provide
Incremental Term Loans by giving written notice of such offered commitment to
the Administrative Agent and the Borrower prior to the termination of the
general syndication of the Incremental Term Loans and (iii) be provided to each
existing Lender not less than five Business Days prior to the commencement of
the general syndication of the Incremental Term Loans; provided, however, that
no existing Lender will be obligated to subscribe for any portion of such
commitments. At any point during or after the general syndication of the
Incremental Term Loans, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an "Additional Term Loan Lender") to extend commitments
to provide Incremental Term Loans; provided that the Additional Term Loan
Lenders shall be offered the opportunity to provide the Incremental Term Loans
only on terms previously offered to the existing Lenders pursuant to the
Incremental Facility Notice. Each Commitment in respect of Incremental Term
Loans shall become a Commitment under this Agreement and the facility for the
Incremental Term Loans shall be implemented hereunder pursuant to an amendment
to this Agreement (an "Incremental Facility Amendment") executed by each of the
Borrower, Allied Waste, each other Loan Party, each Lender agreeing to provide
an Incremental Commitment, if any, each Additional Term Loan Lender, if any, and
the Administrative Agent, which Incremental Facility Amendment will not require
the consent of any other Lender. The effectiveness of any Incremental Facility
Amendment shall (in addition to any other conditions specified therein) be
subject to the satisfaction on the date thereof and, if different, on the date
on which the Incremental Term Loans are made, of each of the conditions set
forth in Section 4.02.
(b) At any time prior to the Term Loan Maturity Date, the Borrower
may, by notice to the Administrative Agent, which shall promptly deliver a copy
thereof to
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each of the Lenders (a "Refinancing Facility Notice"), request the addition of a
new tranche of term loans under this Agreement ("Refinancing Term Loans"), 100%
of the proceeds of which will be applied by the Borrower on the date of receipt
to the prepayment of all then outstanding Term Loans pursuant to Sections
2.11(a) and (e); provided, however, that both (x) at the time of any such
request and (y) after giving effect to any such Refinancing Term Loans, no
Default shall exist and the Borrower shall be in compliance with each Financial
Performance Covenant. Refinancing Term Loans shall not constitute Incremental
Term Loans for purposes of this Section (or reduce the amounts of any
Incremental Term Loans that could be effected pursuant to paragraph (a) of this
Section), and all proceeds of Refinancing Term Loans shall be applied on their
date of Borrowing to the prepayment in full of all then outstanding Term Loans.
The aggregate principal amount of Refinancing Term Loans requested in a
Refinancing Facility Notice or thereafter borrowed shall equal the outstanding
amount of Term Loans at the time of such notice or on the date of such
Borrowing, as the case may be. The Refinancing Term Loans shall (i) rank pari
passu in right of payment and of security with the other Loans (and the
Additional Funded LC Facility (if any)), (ii) mature and amortize in a manner
reasonably acceptable to the Administrative Agent, but in any event have an
average weighted life equal to or longer than the then outstanding Term Loans
and mature on a date no earlier than the Term Loan Maturity Date, (iii) have
such pricing as may be agreed by the Borrower and the Persons providing such
Refinancing Term Loans and (iv) otherwise be treated hereunder substantially the
same as (and in any event no more favorably than) the then outstanding Term
Loans (including with respect to the voluntary and mandatory prepayment
provisions); provided, that the terms and provisions applicable to the
Refinancing Term Loans may provide for financial or other covenants different or
in addition to those applicable to the Term Loans and the Additional Funded LC
Facility (if any) only to the extent that such terms and provisions are
applicable only during periods after the Term Loan Maturity Date. Each
commitment in respect of Refinancing Term Loans will become a Commitment under
this Agreement and the facility for the Refinancing Term Loans will be
implemented hereunder pursuant to an amendment to this Agreement (a "Refinancing
Facility Amendment") executed by each of the Borrower, Allied Waste, each other
Loan Party, each Lender (including any new Lender) agreeing to provide a
Commitment in respect of Refinancing Term Loans and the Administrative Agent,
which Refinancing Facility Amendment will not require the consent of any other
Lender. The effectiveness of any Refinancing Facility Amendment will (in
addition to any other conditions specified therein) be subject to the
satisfaction on the date thereof and, if different, on the date on which the
Refinancing Term Loans are made, of each of the conditions set forth in Section
4.02.
SECTION 2.22. Funded Letter of Credit Facility. At any time prior to
the Tranche A Maturity Date, the Borrower may, by notice to the Administrative
Agent which shall promptly deliver a copy thereof to each of the Lenders (the
"Additional Funded LC Facility Notice"), request the addition of a new
pre-funded letter of credit facility (the "Additional Funded LC Facility");
provided, however, that both (x) at the time of any such request and (y) upon
effectiveness of the Additional Funded LC Facility Amendment referred to below,
no Default shall exist and the Borrower shall be in compliance with each
Financial Performance Covenant. The Additional Funded LC Facility shall (i) be
in an aggregate principal amount not in excess of $500,000,000 and in
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no event less than $50,000,000 and (ii) have such pricing as may be agreed by
the Borrower and the Persons providing such Additional Funded LC Facility. The
obligations in respect of letters of credit issued under the Additional Funded
LC Facility shall (i) rank pari passu in right of payment and of security with
the other Loans (including the Incremental Term Loans (if any)), (ii) have such
pricing as may be agreed by the Borrower and the Persons providing the
Additional Funded LC Facility; provided, that the yield with respect to the
Additional Funded LC Facility (taking into account upfront fees paid to
Additional Funded LC Facility lenders) may be no more than 0.25% per annum
greater than the then-current yield with respect to the Tranche A Letters of
Credit, the Term Loans and the Incremental Term Loans (if any) at the time the
Additional Funded LC Facility Amendment becomes effective pursuant to its terms
(it being understood that the pricing of the Tranche A Letters of Credit, the
Term Loans and/or the Incremental Term Loans (if any) will be increased and/or
additional fees will be paid to the Tranche A Lenders, the Term Lenders or
Incremental Term Loan lenders (if any) to the extent necessary to satisfy such
requirement) and (iii) otherwise be treated hereunder substantially the same as
(and in any event no more favorably than) the Tranche A Letters of Credit.
Letters of credit issued under the Additional Funded LC Facility shall be used
solely to support payment obligations of the Borrower and the Subsidiaries
incurred in the ordinary course of business. The Additional Funded LC Facility
Notice shall (i) set forth the requested size of the Additional Funded LC
Facility, (ii) offer each Lender the opportunity to offer a commitment (the
"Additional Funded LC Commitment") to provide a portion of the Additional Funded
LC Facility by giving written notice of such offered commitment to the
Administrative Agent and the Borrower prior to the termination of the general
syndication of the Additional Funded LC Facility and (iii) be provided to each
existing Lender not less than five Business Days prior to the commencement of
the general syndication of the Additional Funded LC Facility; provided, however,
that no existing Lender will be obligated to subscribe for any portion of such
commitments. At any point during or after the general syndication of the
Additional Funded LC Facility, the Borrower shall have the right to arrange for
one or more banks or other financial institutions (any such bank or other
financial institution being called an "Additional Funded LC Lender") to extend
commitments to provide a portion of the Additional Funded LC Facility; provided
that the Additional Funded LC Lenders shall be offered the opportunity to
provide a portion of the Additional Funded LC Facility only on terms previously
offered to the existing Lenders pursuant to the Additional Funded LC Facility
Notice. Each Commitment in respect of the Additional Funded LC Facility shall
become a Commitment under this Agreement and the Additional Funded LC Facility
shall be implemented hereunder pursuant to an amendment to this Agreement (an
"Additional Funded LC Facility Amendment") executed by each of the Borrower,
Allied Waste, each other Loan Party, each Lender agreeing to provide an
Additional Funded LC Commitment, if any, each Additional Funded LC Lender, if
any, and the Administrative Agent, which Additional Funded LC Facility Amendment
will not require the consent of any other Lender. The effectiveness of any
Additional Funded LC Facility Amendment shall (in addition to any other
conditions specified therein) be subject to the satisfaction on the date thereof
and, if different, on the date on which the Additional Funded LC Facility
becomes effective, of each of the conditions set forth in Section 4.02.
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ARTICLE III
Representations and Warranties
Each of Allied Waste and the Borrower jointly and severally
represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Allied Waste, its
Restricted Subsidiaries and the Securitization Vehicles (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and (d) has the requisite power and authority to execute,
deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated hereby to which it is or will be a
party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by each Loan Party of each of the Loan Documents to which such Loan Party is or
will be a party and the other Transactions:
(a) have been duly authorized by all requisite corporate and, if
required, stockholder action; and
(b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of its certificate or articles of incorporation or other
constitutive documents or by-laws, (B) any material order of any
Governmental Authority or (C) any material provision of any indenture or
other Material Agreement or instrument to which any of them is a party or
by which any of them or any of their property is or may be bound, (ii)
result in a breach of or constitute (alone or which notice or lapse of
time or both) a default under, or give rise to any right to accelerate or
to require the prepayment, repurchase or redemption of any obligation
under any such indenture or other Material Agreement or instrument or
(iii) result in the creation or imposition of any material Lien upon or
with respect to any property or assets now owned or hereafter acquired by
any of them (other than any Lien created hereunder or under the Security
Documents), in each case other than violations, conflicts and breaches
referred to in clauses (i) and (ii) above that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect
or result in any liability of the Administrative Agent or any Lender.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by each of Allied Waste and the Borrower and constitutes, and each
other Loan Document when executed and delivered by each Loan Party party thereto
will constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against
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such Loan Party in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
SECTION 3.04. Governmental Approvals. Except as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, no action, consent or approval of, registration or filing with
or any other action by any Governmental Authority is or will be required in
connection with the Transactions, except for (a) the filing of Uniform
Commercial Code financing statements and other similar filings to perfect the
interests of the Secured Parties in the Collateral, (b) such as will have been
made or obtained and will be in full force and effect as of the later of the
Restatement Effective Date and the date on which such action, consent, approval,
registration or filing is required to be obtained in connection with the
Transactions, (c) such as may be required in the ordinary course of business in
connection with the performance of the obligations of Allied Waste and the
Borrower hereunder and (d) such as may be required in connection with sales of
capital stock or other ownership interests under the Security Documents.
SECTION 3.05. Financial Statements. (a) Allied Waste has, on or
prior to the Restatement Effective Date, furnished to the Administrative Agent
for distribution to the Lenders the Consolidated balance sheet and statements of
income, stockholders' equity and cash flows of Allied Waste and its Subsidiaries
on a Consolidated basis (including consolidating notes with respect to the
Restricted Subsidiaries and other applicable consolidating information) as of
and for the fiscal year ended December 31, 2004, reported on by
PricewaterhouseCoopers LLP, independent public accountants. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of Allied Waste and its Subsidiaries as of
such dates and for such periods in accordance with GAAP consistently applied.
(b) Allied Waste has, on or prior to the Restatement Effective Date,
furnished to the Administrative Agent for distribution to the Lenders (i) its
unaudited pro forma Consolidated balance sheet as of December 31, 2004 and (ii)
projected Consolidated statements of income, stockholders' equity and cash flows
of Allied Waste and its Subsidiaries (covering the period ending on December 31,
2010), in each case prepared giving effect to the Transactions as if the
Transactions had occurred as of December 31, 2004 and including consolidating
notes with respect to the Restricted Subsidiaries and other applicable
consolidating information. Such pro forma and projected financial statements
have been prepared in good faith by Allied Waste based on the assumptions and
estimates used to prepare the pro forma and projected financial information in
the Confidential Information Memorandum (which assumptions and estimates are
believed by Allied Waste on the date thereof to be reasonable), are based on the
best information available to Allied Waste after due inquiry and accurately
reflect all material adjustments required to be made to give effect to the
Transactions.
SECTION 3.06. No Material Adverse Change. Since December 31, 2004,
there has been no material adverse change in the business, condition (financial
or
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otherwise), operations, performance or properties of Allied Waste and its
Subsidiaries, taken as a whole.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each
member of the Allied Group has good title to, or valid leasehold interests in,
all properties and assets which are material to the conduct of the business of
the Allied Group, taken as a whole, except for defects that could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. All such material properties and assets are free and clear of
Liens, other than Liens expressly permitted by the Loan Documents.
(b) Schedule 3.07 sets forth the address of each landfill that is
owned or leased by Allied Waste or any of its Restricted Subsidiaries as of the
Restatement Effective Date.
(c) As of the Restatement Effective Date, neither Allied Waste nor
any of its Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any landfill set forth on
Schedule 3.07 or any sale or disposition thereof in lieu of condemnation. As of
the Restatement Effective Date, except as set forth on Schedule 3.07, neither
any landfill set forth on Schedule 3.07 nor any interest therein is subject to
any right of first refusal, option or other contractual right to purchase such
landfill or interest therein.
(d) Each member of the Allied Group has complied with all
obligations under all leases which are material to the Allied Group, taken as a
whole, to which it is a party and all such leases are in full force and effect,
except where failure to do so or failure of such leases to be in full force and
effect could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Each member of the Allied Group enjoys peaceful
and undisturbed possession under all such material leases, except where failure
to do so could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
SECTION 3.08. Subsidiaries; Other Equity Investments.
(a) Part (a) of Schedule 3.08 sets forth as of the Restatement Effective Date a
list of all Subsidiaries. Each such Subsidiary is a wholly owned Subsidiary
except as otherwise indicated on Schedule 3.08. The shares of capital stock or
other ownership interests issued by the Borrower and the other Subsidiaries and
owned by members of the Allied Group are fully paid and non-assessable and are
owned by Allied Waste, directly or indirectly, free and clear of all Liens
(other than Liens permitted by the Loan Documents).
(b) Part (b) of Schedule 3.08 sets forth as of the Restatement
Effective Date a list of all equity Investments (other than equity Investments
in Subsidiaries referred to in Part (a) of Schedule 3.08) held by Allied Waste
or any Subsidiary in any Person, and, for each such Investment (i) the identity
of the Person or Persons holding such Investment and (ii) the nature of such
Investment.
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SECTION 3.09. Litigation; Compliance with Laws.
(a) Except as set forth on Schedule 3.09, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of Allied Waste or the Borrower, threatened against
or affecting any member of the Allied Group or any business, property or rights
of any such member (i) that involve any Loan Document or any of the Transactions
or (ii) as to which there is a reasonable likelihood of an adverse determination
and that, if adversely determined, could reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(b) No member of the Allied Group or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any Environmental Law, or, to
the knowledge of Allied Waste or the Borrower any zoning, building ordinance,
code or approval or any building permits), or is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental Authority, where
such violation or default could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.10. Agreements. No member of the Allied Group is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other Material Agreement to which it
is a party or by which it or any of its properties or assets are or may be
bound, where such default could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) No member of the
Allied Group is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will
be used by any member of the Allied Group, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of Regulations U or X
of the Board.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. No member of the Allied Group is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.13. Tax Returns. Each of Allied Waste and its Subsidiaries
has timely filed or caused to be filed all Tax returns, extensions or materials
required to have been filed by it (other than those not yet delinquent) and has
paid or caused to be paid all Taxes due and payable by it and all assessments
received by it, except (a) any Taxes and assessments that are being contested in
good faith by appropriate proceedings and for which Allied Waste or the
applicable Subsidiary shall have set aside on its books
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adequate reserves in accordance with GAAP or (b) to the extent that the failure
to do so could not, individually or in the aggregate, after giving effect to the
Transactions, reasonably be expected to result in a Material Adverse Effect.
SECTION 3.14. No Material Misstatements. To the knowledge of the
Loan Parties, on or prior to the Restatement Effective Date, none of (a) the
Confidential Information Memorandum or (b) any other information, report,
financial statement, exhibit or schedule furnished by or on behalf of Allied
Waste and its Restricted Subsidiaries to the Administrative Agent or any Lender
in connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, as of the date of such statements and in the light of the
circumstances under which they were made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast, projection or expression of opinion,
each of Allied Waste and its Subsidiaries represents only that (i) it acted in
good faith and utilized assumptions believed to be reasonable at the time and
due care in the preparation of such information, report, financial statement,
exhibit or schedule and (ii) nothing has come to its attention which would cause
it not to so believe.
SECTION 3.15. Employee Benefit Plans. Except as set forth on
Schedule 3.15, each of the Borrower and its ERISA Affiliates is in compliance in
all material respects with the applicable provisions of ERISA and the Code and
the regulations and published interpretations thereunder, except for such
non-compliance as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as set forth on Schedule
3.15, no ERISA Event has occurred and is outstanding or is reasonably expected
to occur that, when taken together with all other such outstanding ERISA Events,
could, individually or in the aggregate, reasonably be expected to result in
material liability of the Borrower or any of its ERISA Affiliates, except where
such liability, individually or in the aggregate, could not reasonably be
expected to have to a Material Adverse Effect. The present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed by more
than $25,000,000 the fair market value of the assets of such Plan, and the
aggregate present value of all benefit liabilities of all underfunded Plans
(based on those assumptions used to fund each such Plan) did not, as of the last
annual valuation dates applicable thereto, exceed by more than $25,000,000 the
aggregate fair market value of the assets of all such underfunded Plans.
SECTION 3.16. Environmental Matters. Except as set forth on Schedule
3.16:
(a) the facilities and properties owned, leased or operated by each
member of the Allied Group (the "Properties") do not contain and to the
Borrower's knowledge have not previously contained, any Hazardous
Materials in amounts or concentrations which (i) constitute, or
constituted a violation of, (ii) require remedial action under, or (iii)
could give rise to liability under, Environmental
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Laws, which violations, remedial actions and liabilities, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(b) the Properties and all operations of each member of the Allied
Group are in compliance, and in the last five years have been in
compliance, with all Environmental Laws and Environmental Permits, and all
necessary Environmental Permits have been obtained and are in effect,
except to the extent that such non-compliance or failure to obtain any
such Environmental Permits, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(c) there have been no Releases or threatened Releases at, from,
under or proximate to the Properties or properties formerly owned, leased
or operated by any member of the Allied Group (the "Former Properties") or
otherwise in connection with the operations of any member of the Allied
Group, which Releases or threatened Releases, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect;
(d) no member of the Allied Group has received any notice of an
Environmental Claim in connection with the Properties or Former Properties
or the operations of any member of the Allied Group or with regard to any
Person whose liabilities arising under Environmental Law any member of the
Allied Group has retained or assumed, in whole or in part, contractually,
by operation of law or otherwise, which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect; and
(e) Hazardous Materials have not been transported from the
Properties or Former Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the
Properties or Former Properties in violation of any Environmental Law, nor
has any member of the Allied Group retained or assumed any liability,
contractually, by operation of law or otherwise, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or
assumed liabilities, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.17. Insurance. Schedule 3.17 sets forth a true, complete
and correct description of all material insurance maintained by Allied Waste and
the Borrower (including insurance maintained by Allied Waste or the Borrower for
any Subsidiary) as of the Restatement Effective Date. As of the Restatement
Effective Date, such insurance is in full force and effect and all premiums
which have become due and payable have been fully paid. The Allied Group
maintains insurance in such amounts and covering such risks and liabilities as
are in accordance with normal industry practice.
SECTION 3.18. Labor Matters. Except as disclosed in the periodic
reports of Allied Waste most recently filed under the Securities Exchange Act of
1934 prior to the Restatement Effective Date, as of the Restatement Effective
Date, there are
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no strikes, lockouts or slowdowns against any member of the Allied Group pending
or, to the knowledge of Allied Waste or the Borrower, threatened, which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked by and payments made to employees of
the Allied Group do not violate the Fair Labor Standards Act of 1983 or any
other applicable Federal, state, local or foreign law dealing with such matters,
in a manner which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. All payments due from members of the
Allied Group, or for which any claim may be made against any member of the
Allied Group, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of such
member, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.19. Solvency. Immediately after the consummation of the
Transactions to occur on the Restatement Effective Date and immediately
following the making of each Loan and after giving effect to the application of
the proceeds thereof, and taking into account all rights of indemnity,
subrogation and contribution of the Loan Parties under applicable law and the
Indemnity, Contribution and Subrogation Agreement, each Material Loan Party is
and will be Solvent.
SECTION 3.20. Intellectual Property. Each member of the Allied Group
owns, or has valid rights to use, all Intellectual Property necessary for the
conduct of its business as currently conducted, except for any failure to so own
or license Intellectual Property which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. To the knowledge
of Allied Waste and the Borrower, no claim has been asserted and is pending
against any member of the Allied Group challenging or questioning the use of any
Intellectual Property by them or the validity or effectiveness of any
Intellectual Property used by them, except for any claims, which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of Allied Waste and the Borrower, the use of
Intellectual Property by the members of the Allied Group does not infringe on
the rights of any Person in any material respect and in any manner which could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.21. Senior Indebtedness. The Obligations constitute
"Senior Indebtedness" under and as defined in the 10% Note Documents.
SECTION 3.22. Security Interests. (a) Each of the Non-Shared
Collateral Pledge Agreement and the Shared Collateral Pledge Agreement is
effective to create in favor of the Collateral Agent and the Collateral Trustee,
respectively, for the ratable benefit of the Secured Parties and the Shared
Collateral Secured Parties, respectively, a valid and enforceable security
interest in the "Collateral" (as defined in the Non-Shared Collateral Pledge
Agreement) and the "Collateral" (as defined in the Shared Collateral Pledge
Agreement), respectively, and, when the portion of the Collateral constituting
certificated securities (as defined in the Uniform Commercial Code) is delivered
to the Collateral Agent thereunder, and, when financing statements in
appropriate form are filed in the offices specified on Schedule D to each of the
Perfection
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Certificates, such security interest shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other Person.
(b) Each of the Non-Shared Collateral Security Agreement and the
Shared Collateral Security Agreement is effective to create in favor of the
Collateral Agent and the Collateral Trustee, respectively, for the ratable
benefit of the Secured Parties and the Shared Collateral Secured Parties,
respectively, a legal, valid and enforceable security interest in the
"Collateral" (as defined in the Non-Shared Collateral Security Agreement) and
the "Collateral" (as defined in the Shared Collateral Security Agreement),
respectively, and, when financing statements in appropriate form are filed in
the offices specified on Schedule D to each of the Perfection Certificates, such
security interest shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral, to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements, other than the Intellectual Property, in
which a security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02.
(c) The security interest created under each of the Non-Shared
Collateral Security Agreement and the Shared Collateral Security Agreement
constitutes a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in the Intellectual Property in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 6.02 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired or registered by the Loan Parties after the Restatement
Effective Date).
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date. Without affecting the
rights of Allied Waste or any Restricted Subsidiary hereunder at all times prior
to the Restatement Effective Date, the amendment and restatement of the Original
Credit Agreement in the form hereof and obligations of the Lenders to make Loans
and acquire participations in Letters of Credit, the obligations of Tranche A
Lenders to fund their Tranche A Credit-Linked Deposits and the obligations of an
Issuing Bank to issue Letters of Credit under this Agreement shall become
effective on the date on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02):
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(a) The following documents, each dated the Restatement Effective
Date (unless otherwise specified) are received by the Administrative Agent in
form and substance satisfactory to the Initial Lenders:
(i) for Allied Waste, the Borrower and each other Material Loan
Party, a copy of the organizational documents, as amended and in effect,
of such Material Loan Party certified (as of a date reasonably close to
the Restatement Effective Date) by the Secretary of State of the
jurisdiction of organization of such Material Loan Party; a certificate
from such Secretary of State dated as of a date reasonably close to the
Restatement Effective Date as to the good standing of and organizational
documents filed by such Material Loan Party; and evidence from each
Material Loan Party that it is qualified to do business in each
jurisdiction where such qualification is required and where the failure so
to qualify could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(ii) for each of Allied Waste, the Borrower and each other Material
Loan Party, a certificate of the Secretary or an Assistant Secretary of
such Material Loan Party, dated the Restatement Effective Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws (or operating or partnership agreement, where applicable) of such
Material Loan Party as amended and in effect at all times from the date on
which the resolutions referred to in clause (B) were adopted to and
including the date of such certificate, (B) that attached thereto is a
true and complete copy of resolutions (or consent by members or partners,
where applicable, to the extent required) duly adopted by the board of
directors (or members or partners, where applicable) of such Material Loan
Party authorizing the execution, delivery and performance of such of the
Loan Documents to which such Material Loan Party is or is intended to be a
party and the extensions of credit hereunder, and that such resolutions
(or consent by members or partners, where applicable, to the extent
required) have not been modified, rescinded or amended and are in full
force and effect, (C) that the organizational documents of such Material
Loan Party have not been amended since the date of the certification
thereto furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer (or member or partner,
where applicable) of such Material Loan Party executing such of the Loan
Documents to which such Material Loan Party is intended to be a party and
each other document to be delivered by such Material Loan Party from time
to time in connection therewith (and the Administrative Agent and each
Lender may conclusively rely on such certificate until it receives notice
to the contrary in writing from such Material Loan Party); and
(iii) for each Material Loan Party, a certificate of another officer
(or member or partner, where applicable) of such Material Loan Party,
dated the Restatement Effective Date, as to the incumbency and specimen
signature of the Secretary or Assistant Secretary, as the case may be, of
such Material Loan Party;
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(b) The Administrative Agent shall have received the Security
Documents, or reaffirmation agreements in respect thereof, duly executed by each
of the intended parties thereto, together with:
(i) such appropriately completed copies of Uniform Commercial Code
financing statements as the Administrative Agent or any Lender shall have
requested covering the Collateral described therein;
(ii) documents for recordation and filing of or with respect to such
Security Documents that the Administrative Agent or any Lender may deem
reasonably necessary or desirable in order to perfect the Liens created
thereby; and
(iii) completed Perfection Certificates dated the Restatement
Effective Date and signed by an executive officer of the Borrower or a
Financial Officer, together with all attachments contemplated thereby.
(c) The Administrative Agent shall have received a legal opinion of
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in substantially
the form of Exhibit K-1 and otherwise reasonably satisfactory to the Initial
Lenders and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Allied Waste, in
substantially the form of Exhibit K-2 and otherwise reasonably satisfactory to
the Initial Lenders;
(d) The Initial Lenders shall have received a certificate of a
Financial Officer to the effect that:
(x) the representations and warranties (other than the
representation and warranty contained in Section 3.06) are true and
correct in all material respects on and as of the Restatement Effective
Date or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date (except, in
the case of representations and warranties relating to the business,
operations or condition of Allied Waste and its Subsidiaries, to the
extent any such failures to be true and correct, individually or in the
aggregate, could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect); and
(y) no event has occurred and is continuing that constitutes a
Default or an Event of Default.
(e) The Administrative Agent shall have received evidence of the
existence of all insurance required to be maintained by Allied Waste and its
Restricted Subsidiaries hereunder, together with evidence that the Collateral
Agent on behalf of the Secured Parties or Shared Collateral Secured Parties is
an additional insured or loss payee (in each case, to the extent required under
Section 5.02).
(f) The Administrative Agent shall have received the results of a
recent lien search in each of the jurisdictions requested by the Administrative
Agent, and such
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searches shall reveal no Liens on any of the assets of any Loan Party except for
Liens permitted by Section 6.02.
(g) The Administrative Agent shall have received evidence that the
Borrower shall have paid all fees required to be paid, and all reasonable
expenses for which invoices have been presented, on or before the Restatement
Effective Date (including the reasonable fees and expenses of a single New York
counsel and a single local counsel in each applicable jurisdiction to the
Administrative Agent and the Initial Lenders).
(h) The Administrative Agent shall have received evidence that the
Borrower shall have repaid (or is simultaneously repaying) all Loans or other
amounts outstanding under the Original Credit Agreement on the Restatement
Effective Date (other than Existing Letters of Credit), and that any breakage or
indemnity payments in connection with such repayment, to the extent invoiced
pursuant to the terms of the Original Credit Agreement, have been (or are
simultaneously being) paid.
(i) All requisite material governmental authorities shall have
approved or consented to the Transactions to be consummated on the Restatement
Effective Date (except to the extent the failure to obtain any such approvals or
consents could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect) and there shall be no governmental or
judicial action, actual or threatened, that has or could have a reasonable
likelihood of restraining, preventing or imposing burdensome conditions (except
as previously disclosed to the Initial Lenders) that could, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
The Administrative Agent shall have received a certificate of an executive
officer of the Borrower confirming that all material governmental consents and
approvals required in connection with the Transactions to be consummated on the
Restatement Effective Date have been received, except such consents and
approvals that, if not obtained, could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(j) The Equity Offerings shall have been consummated in accordance
with applicable law and Allied Waste shall have received therefrom aggregate
gross cash proceeds of not less than $500,000,000. The material terms and
conditions of each of the Common Equity Offering, the Mandatory Convertible
Offering and the securities issued in connection therewith and the provisions of
the agreements and documents executed in connection with each of the Common
Equity Offering and the Mandatory Convertible Offering shall be reasonably
satisfactory to the Initial Lenders, and each of the Initial Lenders shall have
received copies of all such agreements and documents, certified by a Financial
Officer as being complete and correct in all material respects.
(k) The Lenders shall be reasonably satisfied with (i) the material
terms and conditions of all agreements and documents executed and delivered in
connection with the other Transactions (to the extent consummated on or before
the Restatement Effective Date), (ii) the capitalization, structure and equity
ownership of Allied Waste
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and its subsidiaries after giving effect to the Transactions and (iii) all
material legal, accounting, Tax and other matters relating to the Transactions.
(l) Immediately after giving effect to the Transactions to be
consummated on the Restatement Effective Date and the other transactions
contemplated by this Agreement to occur on the Restatement Effective Date,
Allied Waste and its Restricted Subsidiaries shall have outstanding no
Indebtedness or Preferred Stock other than (a) Indebtedness outstanding under
this Agreement, (b) the 2005 Senior Notes and (c) Indebtedness and Preferred
Stock set forth on Schedule 6.01.
(m) The Lenders shall have received a detailed financial model of
Allied Waste and its Restricted Subsidiaries, broken down by quarters, for the
years 2005 through 2010 in form and substance reasonably satisfactory to the
Initial Lenders.
(n) The Lenders shall have received the pro forma consolidated
balance sheet of Allied Waste referred to in Section 3.05(b), and such pro forma
consolidated balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders. The
Administrative Agent shall have received a certificate of a Financial Officer to
the effect that such pro forma consolidated balance sheet fairly presents, in
all material respects, the pro forma financial position of Allied Waste and its
Subsidiaries in accordance with GAAP.
(o) There shall be no material litigation against any member of the
Allied Group or defaults under any provision of any indenture or other agreement
or instrument evidencing Indebtedness, or any other Material Agreement to which
any member of the Allied Group is a party or by which it or any of its
properties or assets are or may be bound, which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
The Administrative Agent shall notify Allied Waste, the Borrower and the Lenders
of the Restatement Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on March
31, 2005 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time). It is understood and agreed that no
term of the amendment and restatement contemplated hereby shall be effective
until the Restatement Effective Date occurs, and that this Agreement and the
Predecessor Security Documents shall continue in full force and effect in the
form applicable prior to the amendment and restatement contemplated hereby until
the Restatement Effective Date.
SECTION 4.02. Each Credit Event. The obligation of each Revolving
Lender to make a Revolving Loan on the occasion of any Borrowing after the
Restatement Effective Date, and of each Issuing Bank to issue, amend, renew or
extend any Letter of Credit after the Restatement Effective Date, is subject to
receipt of the request therefor in accordance herewith and to the satisfaction
of the following conditions
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(each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by Allied
Waste and the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Borrowing or issuance, before and after giving effect to such
Borrowing or issuance and to the application of the proceeds therefrom, as
though made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(b) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default or an Event of Default.
SECTION 4.03. Determinations Under Section 4.01. For purposes of
determining compliance with the conditions specified in Section 4.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received written notice from such Lender prior to the
Restatement Effective Date specifying its objection thereto and such Lender
shall not have made available to the Administrative Agent such Lender's ratable
portion of the Borrowings made on the Restatement Effective Date.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable to Lenders and
Issuing Banks hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Allied Waste and the Borrower covenants and agrees with the
Lenders that:
SECTION 5.01. Existence; Businesses and Properties. It will, and
will cause each of its Restricted Subsidiaries to:
(a) Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.06 and except for failures by
Restricted Subsidiaries to do so which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain, preserve,
or renew licenses, permits, franchises, authorizations, patents,
copyrights,
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trademarks and trade names material to the conduct of the business of
Allied Waste and its Restricted Subsidiaries, taken as a whole; maintain
and operate such business in substantially the manner in which it is
presently conducted and operated (provided that nothing set forth in this
Section 5.01(b) shall in any way limit the ability of Allied Waste and its
Restricted Subsidiaries to consummate any acquisition or disposition
permitted under this Agreement or otherwise make changes in the conduct of
their business not prohibited by Section 6.10); comply with all applicable
laws, rules, regulations and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except for failures
to comply which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and at all times maintain and
preserve all property material to the conduct of such business and keep
such property in good repair, working order and condition and from time to
time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that
the business carried on in connection therewith may be properly conducted
at all times, except for failures to maintain and preserve property that
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
SECTION 5.02. Insurance. It will, and will cause each of its
Restricted Subsidiaries to:
(a) Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, or by way of adequate
self-insurance; maintain such other insurance or self-insurance, to such
extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same
or similar businesses operating in the same or similar locations,
including public liability insurance or self-insurance against claims for
personal injury or death or property damage occurring upon, in, about or
in connection with the use of any properties owned, occupied or controlled
by it; and maintain such other insurance or self-insurance as may be
required by law. All insurance policies may provide for reasonable
deductible amounts.
(b) Cause all such policies (other than in respect of self
insurance) to be endorsed or amended to include a "standard" or "New York"
lender's loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent, which endorsement shall provide
that, from and after the Restatement Effective Date, if the insurance
carrier shall have received written notice from the Administrative Agent
of the occurrence of an Event of Default, the insurance carrier shall pay
all proceeds otherwise payable to any member of the Allied Group under
such policies directly to the Administrative Agent; and deliver original
or certified copies of all such policies to the Administrative Agent.
(c) If any separate or additional property, casualty or "umbrella"
insurance policy is known by a Responsible Officer to have been obtained
by any member of the Allied Group after the Restatement Effective Date,
notify the
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Administrative Agent thereof promptly, and promptly deliver to the
Administrative Agent a duplicate original copy of such policy.
SECTION 5.03. Obligations and Taxes. It will, and will cause each of
its Subsidiaries to, pay its Indebtedness and other obligations promptly and in
accordance with their terms and pay and discharge promptly when due all Taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided that (x) such payment of Indebtedness
or claims for labor, material or supplies shall not be required pursuant to this
Section 5.03 to the extent failure to so pay could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (y)
such payment and discharge shall not be required with respect to any such Tax,
assessment, charge, levy or claim so long as either (i) the validity or amount
thereof shall be contested in good faith by appropriate proceedings and Allied
Waste or the relevant Subsidiary shall have set aside on its books adequate
reserves with respect thereto in accordance with GAAP and such contest operates
to suspend collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien or (ii) such amount not so paid or discharged is less than
$50,000,000 in the aggregate.
SECTION 5.04. Financial Statements, Reports, Etc. Allied Waste shall
furnish to the Administrative Agent (and the Administrative Agent shall furnish
to each Lender):
(a) within ten days after the filing with the Securities and
Exchange Commission of Allied Waste's Annual Report on Form 10-K with
respect to each fiscal year (and in any event within 105 days after the
end of such fiscal year), (x) its Consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows showing the
financial condition of Allied Waste and its Subsidiaries as of the close
of such fiscal year and the results of its operations and the operations
of such Subsidiaries during such year (together with consolidating notes
with respect to the Restricted Subsidiaries and other applicable
consolidating information), all audited by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing
acceptable to the Administrative Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect) to
the effect that such Consolidated financial statements fairly present the
financial condition and results of operations of Allied Waste and its
Subsidiaries on a Consolidated basis in accordance with GAAP (it being
understood that such financial statements and opinion may be delivered, if
included therein, in the form of such Annual Report on Form 10-K and any
related Annual Report to Stockholders); and (y) a calculation of the
Leverage Ratio and Interest Coverage Ratio as at the last day of and for
such fiscal year;
(b) within seven days after the filing with the Securities and
Exchange Commission of Allied Waste's Quarterly Report on Form 10-Q with
respect to
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each of the first three fiscal quarters of each fiscal year (and in any
event within 60 days after the end of each such fiscal quarter), (x) its
Consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
Allied Waste and its Subsidiaries as of the close of such fiscal quarter
and the results of its operations and the operations of such Subsidiaries
during such fiscal quarter and the then elapsed portion of the fiscal year
(together with consolidating notes with respect to the Restricted
Subsidiaries and other applicable consolidating information), all
certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of Allied Waste and its
Subsidiaries on a Consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and lack of footnote disclosures (it
being understood that such financial statements may be delivered, if
included therein, in the form of such Quarterly Report on Form 10-Q); and
(y) a calculation of the Leverage Ratio and the Interest Coverage Ratio as
at the last day of such fiscal quarter and for the Rolling Period then
ended;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer (i)
certifying that in making its examination in connection with rendering
such opinion or certificate with respect to such statements, such Person
has not obtained knowledge that an Event of Default or a Default has
occurred or, if such Person has obtained knowledge that an Event of
Default or Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect
thereto, (ii) setting forth computations in reasonable detail satisfactory
to the Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.04, 6.05, 6.06, 6.08, 6.13, 6.14 and 6.15 and
(iii) identifying in reasonable detail, and setting forth the amounts of,
all Designated Excess Cash Expenditures made during the periods covered by
such financial statements;
(d) promptly upon request by the Administrative Agent (on its own
behalf or at the request of any Lender), but only after the same become
publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by any member of the Allied Group
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed to its shareholders, as the
case may be;
(e) at the time required for delivery of financial statements
pursuant to paragraph (a) or (b) of this Section, (x) a report in form and
substance reasonably satisfactory to the Administrative Agent of all
Permitted Acquisitions consummated during the most recent fiscal quarter
covered by such financial statements, which report shall identify, inter
alia, each Permitted Acquisition having total Acquisition Consideration of
$25,000,000 or more (a "Large Acquisition") and, for each Large
Acquisition, a description of the total
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Acquisition Consideration therefor; and (y) a list of all entities that
became or ceased to be Domestic Subsidiaries of Allied Waste during such
fiscal quarter;
(f) promptly from time to time, such other information regarding the
operations, business affairs and financial condition of members of the
Allied Group, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender acting through the Administrative Agent
may reasonably request; and
(g) within 90 days after the beginning of each fiscal year, a copy
of the annual forecasts of Allied Waste, prepared by management of Allied
Waste, in each case in form and detail reasonably satisfactory to the
Administrative Agent, consisting of Consolidated balance sheets and
related statements of operations and cash flows of Allied Waste and its
Restricted Subsidiaries for such fiscal year and for each of the following
fiscal years occurring in whole or in part during the term of this
Agreement.
Notwithstanding anything to the contrary in paragraphs (a) or (b) of this
Section, the Borrower may satisfy its obligations to deliver financial
statements thereunder by delivering consolidated financial statements
including the results of operations, assets and liabilities of
consolidated Unrestricted Subsidiaries that are Insurance Subsidiaries or
RMI Subsidiaries.
SECTION 5.05. Litigation and Other Notices. It will, and will cause
each of its Restricted Subsidiaries to, furnish to the Administrative Agent:
(a) as soon as possible and in any event within five Business Days
after any Responsible Officer has knowledge thereof, written notice that a
Default or Event of Default has occurred, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) as soon as possible and in any event within five Business Days
after any Responsible Officer has knowledge thereof, written notice of the
filing or commencement of, or of any notice of intention of any Person to
file or commence, any action, suit or proceeding, whether at law or in
equity or by or before any Governmental Authority, against any member of
the Allied Group that could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect;
(c) prompt written notice of any development known to any
Responsible Officer that has had, or could, individually or in the
aggregate, reasonably be expected to have, a Material Adverse Effect; and
(d) as soon as possible and in any event within five Business Days
after any Responsible Officer has knowledge thereof, written notice that a
Change in Control has occurred or is reasonably likely to occur.
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SECTION 5.06. Employee Benefits. It will, and will cause each of its
Subsidiaries to:
(a) comply with the applicable provisions of ERISA and the Code
(excluding, however, noncompliance that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect); and
(b) furnish to the Administrative Agent as soon as possible after,
and in any event within 10 days after any Responsible Officer has
knowledge that, any ERISA Event has occurred and is then outstanding that,
alone or together with any other ERISA Event, could reasonably be expected
to result in liability of any member of the Allied Group in an aggregate
amount exceeding $5,000,000 or requiring payments by any member of the
Allied Group exceeding $2,500,000 in any year, a statement of a Financial
Officer, setting forth details as to such ERISA Event and the action, if
any, that Allied Waste proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. It will, and will cause each of its Restricted Subsidiaries to,
keep proper books of record and account sufficient to permit the preparation of
financial statements in conformity with GAAP. Each of Allied Waste and the
Borrower will, and will cause each of its Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender that are
informed of the confidentiality provisions set forth in Section 9.12 of this
Agreement and agree to be bound by such provisions to visit and inspect (at the
expense of the Lenders unless an Event of Default has occurred and is
continuing, in which case at the expense of the Borrower) the records, books,
accounts and the properties of members of the Allied Group at reasonable times,
with reasonable notice and without causing material disruption, and as often as
reasonably requested and to make extracts from and copies of such records, books
and accounts and permit any representatives designated by the Administrative
Agent or any Lender to discuss the affairs, finances and condition of members of
the Allied Group with the officers thereof and independent accountants therefor
(subject to reasonable requests of confidentiality, including requirements
imposed by law or contract).
SECTION 5.08. Environmental Laws. It will, and will cause each of
its Subsidiaries to:
(a) comply, and use commercially reasonable efforts to cause all
lessees and other Persons occupying its Properties to comply, in all
respects with all Environmental Laws and Environmental Permits applicable
to its operations and Properties; obtain and renew all Environmental
Permits necessary for its operations and Properties; maintain appropriate
financial assurance mechanisms in connection with its landfill operations
as required under Environmental Law; and conduct any remedial action in
accordance with Environmental Laws, except where such noncompliance or
failure to obtain or renew Environmental Permits, maintain financial
assurance mechanisms or to conduct any remedial action could not,
individually or in the aggregate, reasonably be expected to have a
Material
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Adverse Effect; provided that no member of the Allied Group shall be
required to conduct remedial actions to the extent that any applicable
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances; and
(b) with respect to any Permitted Acquisition having Acquisition
Consideration in excess of $50,000,000, and any acquisition of any other
ownership or leasehold interest in, or the entry into any agreement to
conduct operations of, any landfill, transfer station or other waste
treatment or disposal facility the total value of which is in excess of
$50,000,000, prior to consummating any such acquisition or commencement of
any operations under any such agreement or lease, obtain and review a
written assessment, prepared by an environmental consulting firm
recognized within the municipal solid waste industry and among
environmental professionals as competent and reputable and which the
Borrower has reasonably determined to be suitable, that reasonably
addresses compliance with Environmental Law and material Environmental
Liabilities associated with the subject of such acquisition, agreement or
lease.
SECTION 5.09. Preparation of Environmental Reports. If a Default or
Event of Default caused by reason of a breach of Section 3.16 or 5.08 shall have
occurred and be continuing, the Administrative Agent is authorized to engage an
environmental consulting firm selected by the Administrative Agent reasonably
acceptable to Allied Waste to prepare, on behalf of the Administrative Agent,
the Lenders and the Issuing Banks but at the sole cost and expense of the
Borrower, an environmental site assessment report for the Properties which are
the subject of such Default or Event of Default, which environmental site
assessment report shall estimate the cost of any compliance or remedial action
(if such costs are reasonably ascertainable) and evaluate potentially material
Environmental Claims and potentially material Environmental Liabilities in
connection with such Properties. Each of Allied Waste and the Borrower will, and
will cause each of its Subsidiaries to, cooperate fully with the Administrative
Agent and such environmental consulting firms in their preparation of such
environmental assessment reports, including permitting any representatives
designated by the Administrative Agent or such environmental consulting firms
that are informed of the confidentiality provisions set forth in Section 9.12
and agree to be bound by such provisions to visit and inspect the related
Properties at reasonable times and as often as reasonably requested and to make
extracts from and copies of environmental records of the members of the Allied
Group. If requested by the Borrower, the Borrower shall be entitled to have
access to the data relating to such environmental assessment reports.
SECTION 5.10. Further Assurances. It will, and will cause each of
its Restricted Subsidiaries (other than inactive Subsidiaries) to:
(a) Authorize or execute any and all further documents, financing
statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements)
that the Required Lenders or the Administrative Agent may reasonably
request in order to effectuate the transactions contemplated by the Loan
Documents and in order to
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grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Security
Documents (subject to Liens permitted by the Loan Documents).
(b) Take such action from time to time as shall be necessary to
ensure that all Specified Subsidiaries (including Specified Subsidiaries
formed or acquired pursuant to Permitted Acquisitions) are parties to the
Subsidiary Guarantee Agreement hereunder, that all of the capital stock or
other ownership interests of Specified Subsidiaries owned by the Borrower
or the Specified Subsidiaries is pledged to the Collateral Agent or the
Collateral Trustee pursuant to the applicable Security Document and that
substantially all of the personal property of the Borrower and the
Specified Subsidiaries (including assets acquired pursuant to Permitted
Acquisitions) is pledged to the Collateral Agent or the Collateral Trustee
pursuant to the applicable Security Document; provided, however, that the
foregoing shall not apply to Subsidiaries with unaffiliated minority
holders of Voting Stock which do not provide the required consent to such
Subsidiary Guarantee Agreement or such other applicable Security Document;
provided, further, that Allied Waste and the Borrower shall use
commercially reasonable efforts to obtain any such required consents.
Without limiting the generality of the foregoing, in the event that Allied
Waste or any of the Specified Subsidiaries shall form or acquire any new
Subsidiary after the Restatement Effective Date that shall constitute a
Specified Subsidiary, and in connection with each Permitted Acquisition,
Allied Waste and the Specified Subsidiaries will, promptly after such
formation or Permitted Acquisition (but subject to the first proviso set
forth in the immediately preceding sentence):
(i) cause each new Specified Subsidiary to become party to the
Subsidiary Guarantee Agreement, a "Grantor" under the Non-Shared
Collateral Security Agreement or, if a subsidiary of BFI, the Shared
Collateral Security Agreement, and, if applicable, a "Pledgor" under
the Non-Shared Collateral Pledge Agreement or the Shared Collateral
Pledge Agreement;
(ii) take and cause each new Specified Subsidiary to take such
action (including delivering such shares of stock or other
certificated ownership interests and delivering such Uniform
Commercial Code financing statements) as shall be necessary to
create and perfect valid and enforceable first priority Liens
(subject only to Liens permitted by the Loan Documents) on
substantially all of the personal property of such new Specified
Subsidiary and on substantially all of the personal property
acquired pursuant to each Permitted Acquisition, as collateral
security for the Obligations hereunder and under the other Loan
Documents;
(iii) deliver all certificates evidencing capital stock or
other ownership interests in such new Specified Subsidiary owned by
members of the Allied Group, each accompanied by undated stock
powers executed in blank; and
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(iv) deliver such proof of corporate or other Borrower action,
incumbency of officers, opinions of counsel and other documents as
is consistent with those delivered by each Loan Party pursuant to
Section 4.01 on the Restatement Effective Date.
(c) At its own cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected
security interests with respect to such of its assets and properties
(other than Securitization Assets sold or purported to be sold in a
Securitization permitted under this Agreement) as the Collateral Agent or
the Required Lenders shall designate (it being understood that it is the
intent of the parties that the Obligations shall be secured by, among
other things, substantially all the assets of the Loan Parties and other
properties acquired subsequent to the Restatement Effective Date, except
for assets of a type that are not subject to a Lien granted under the
Security Documents on the Restatement Effective Date). Such security
interests and Liens will be created under Security Documents in form and
substance satisfactory to the Collateral Agent, and shall be accompanied
by all such instruments and documents (including legal opinions and lien
searches) as the Collateral Agent or Collateral Trustee shall reasonably
request.
Notwithstanding the foregoing provisions of this Section 5.10, no Loan Party
shall be required to pledge or create security interests in (i) landfills or
vehicles covered by a certificate of title unless the Administrative Agent
acting at the direction of the Required Lenders shall specifically request the
same (which requests may be given from time to time and may relate to all or
only specified landfills owned by members of the Allied Group), (ii) any assets
(subject to the first proviso of clause (b) above, excluding capital stock of
subsidiaries) of such Loan Party with respect to which the creation of such
pledge or such security interest is prohibited by a contract or other agreement
of such Loan Party (x) existing on the Restatement Effective Date or (y) entered
into after the Restatement Effective Date in compliance with the provisions
hereof, (iii) capital stock of any Foreign Subsidiary in excess of 65% thereof
or (iv) capital stock of any Unrestricted Subsidiary (other than a
Securitization Vehicle).
SECTION 5.11. Compliance with Terms of Leaseholds. It will make, and
will cause each of its Restricted Subsidiaries to make, all payments and
otherwise perform all material obligations in respect of all Material Leases to
which a member of the Allied Group is a party, keep such Material Leases in full
force and effect and not allow such Material Leases to lapse or be terminated or
any rights to renew such Material Leases to be forfeited or canceled, notify the
Administrative Agent of any default by any party with respect to such Material
Leases and cooperate with the Administrative Agent in all respects to cure any
such default and cause each of Allied Waste's Restricted Subsidiaries to do so,
except, in any case, where the failure to do any of the foregoing, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.12. Performance of Material Agreements. It will, and will
cause each of its Restricted Subsidiaries to, perform and observe all of the
terms and
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provisions of each Material Agreement, maintain each such Material Agreement in
full force and effect, and enforce such Material Agreement in accordance with
its terms, except, in any case, where the failure to do any of the foregoing
could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
SECTION 5.13. Information Regarding Collateral.
(a) Allied Waste and the Borrower will furnish to the Administrative Agent
quarterly, within 15 days after the end of each fiscal quarter, a report setting
forth any change (i) in any corporate name of a Loan Party, (ii) in the location
of any Loan Party's jurisdiction of incorporation or formation, (iii) in any
Loan Party's corporate structure or (iv) in any Loan Party's Federal Taxpayer
Identification Number or other identification number assigned by such Loan
Party's jurisdiction of incorporation or formation.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.04, Allied Waste and the Borrower shall deliver to the Administrative
Agent a certificate of a Financial Officer setting forth the information
required pursuant to Sections 1, 2, 7, 8, 9 and 10 of the Perfection
Certificates or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Restatement
Effective Date or the date of the most recent report delivered pursuant to
paragraph (a) of this Section.
SECTION 5.14. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Available
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Loan Documents.
SECTION 5.15. Compliance with Laws. It will, and will cause each of
its Restricted Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.16. Use of Proceeds and Letters of Credit. The proceeds of
the Term Loans will be used solely (i) to repay amounts due or outstanding under
the Original Credit Agreement on the Restatement Effective Date and (ii) to the
extent of any amounts remaining thereafter, to pay fees and expenses incurred in
connection with the Transactions and for other general corporate purposes. The
proceeds of Revolving Loans made on the Restatement Effective Date will be used
solely to repay revolving loans under the Original Credit Agreement. The
proceeds of Revolving Loans and Swingline Loans made after the Restatement
Effective Date will be used solely for Permitted
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Acquisitions, Investments permitted by Section 6.05, the payment of premiums,
accrued interest, and fees and expenses in connection with any Permitted
Refinancing Transaction or Permitted LC or Public Notes Financing Transaction
allowed hereunder, the payment of accrued interest, and reasonable fees and
expenses in excess of fees and expenses previously disclosed to the
Administrative Agent by the Borrower in connection with the repurchase of the
9.25% Notes allowed hereunder, and for general corporate purposes, including
working capital. The proceeds of issuances of Indebtedness which are required or
permitted by this Agreement to be applied to the refinancing or repayment of
other Indebtedness may be used to temporarily prepay Revolving Loans pending
such application and may be subsequently reborrowed as Revolving Loans (subject
to satisfaction of applicable conditions) and applied to such refinancing or
repayment, and any such reborrowing and application will be deemed a use of such
original proceeds for purposes hereof. Letters of Credit will be used solely to
support payment obligations of Allied Waste, the Borrower and the Subsidiaries
incurred in the ordinary course of business. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of Regulations U or X of the Board.
SECTION 5.17. Interest Rate Protection. As promptly as practicable,
and in any event within 90 days after the Restatement Effective Date, the
Borrower will enter into, and thereafter for a period of not less than 3 years
will maintain in effect, one or more interest rate protection agreements on such
terms and with such parties as shall be reasonably satisfactory to the Initial
Lenders, the effect of which shall be to fix or limit the interest cost to the
Borrower with respect to at least 50% of the total Indebtedness for borrowed
money of Allied Waste and its Restricted Subsidiaries (including the Loans) at
the time outstanding.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable to the Lenders and Issuing
Banks hereunder have been paid in full and all Letters of Credit have expired or
been terminated and all LC Disbursements shall have been reimbursed, each of
Allied Waste and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities.
(a) Allied Waste and the Borrower will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Indebtedness or any
Attributable Debt in respect of Sale and Leaseback Transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness (including Guarantees) existing on the
Restatement Effective Date and set forth on Schedule 6.01 and any
Indebtedness of any Subsidiary formed or acquired after the
Restatement
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Effective Date that guarantees such Indebtedness in accordance with
the terms thereof;
(iii) Hedging Agreements permitted pursuant to Section 6.07;
(iv) Acquired Indebtedness of a Restricted Subsidiary acquired
after the Restatement Effective Date and Acquired Indebtedness of a
corporation merged or consolidated with or into the Borrower or a
Restricted Subsidiary after the Restatement Effective Date, which
Indebtedness in each case exists at the time of such acquisition,
merger, consolidation or conversion into a Restricted Subsidiary and
is not created in contemplation of such event and where such
acquisition, merger or consolidation is permitted by this Agreement;
provided that the Borrower and the Restricted Subsidiaries comply
with the provisions of Section 5.10 with respect to any such
acquired or newly formed Restricted Subsidiary;
(v) unsecured Indebtedness of Allied Waste, the Borrower or
any Restricted Subsidiary that is issued to a seller of an Acquired
Business and incurred in connection with a Permitted Acquisition;
(vi) unsecured Guarantees in respect of Indebtedness permitted
pursuant to subparagraphs (i), (ii), (iv), (v), (ix), (xii), (xiii),
(xiv), (xv), (xvii), (xviii), (xx) and (xxiii) of this Section
6.01(a); provided that any Guarantees in respect of Indebtedness
that is subordinated to any of the Obligations or to Guarantees of
the Obligations shall also be subordinated to the Obligations or to
the Guarantees in favor of the Lenders under the Loan Documents, as
the case may be, to the same extent as such Indebtedness is
subordinated to any of the Obligations;
(vii) Indebtedness of the Borrower or any Subsidiary Loan
Party to any other Subsidiary or the Borrower, so long as such
Indebtedness is subordinated to all Obligations pursuant to terms
substantially the same as those set forth on Annex A hereto;
(viii) (A) Indebtedness (i) of Allied Waste to the Borrower or
any wholly owned Subsidiary, provided that the use of the proceeds
thereof is not in contravention of Section 6.10, or (ii) of the
Borrower or any wholly owned Restricted Subsidiary to Allied Waste;
provided that all Indebtedness issued pursuant to this clause
(viii)(A) shall be subordinated to the Obligations pursuant to terms
substantially the same as those set forth on Annex A hereto, and (B)
Indebtedness of Allied Waste, the Borrower or any Restricted
Subsidiary to any Insurance Subsidiary; provided that the aggregate
amount of Indebtedness incurred pursuant to this clause (viii)(B) at
any time outstanding shall not exceed $375,000,000;
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(ix) Indebtedness of the Borrower and Allied Waste under the
Allied Guarantee;
(x) Indebtedness (including Tax exempt financings and Capital
Lease Obligations) and Attributable Debt of the Borrower or the
Restricted Subsidiaries incurred after the Restatement Effective
Date to finance Capital Expenditures permitted under Section 6.15 or
in connection with Sale and Leaseback Transactions permitted by
Section 6.04; provided that (A) such Indebtedness or Attributable
Debt is incurred prior to or within 120 days after the acquisition,
completion of construction, refurbishment or improvement of the
fixed or capital assets being financed and does not exceed 100% of
the cost thereof (including related financing fees and costs) and
(B) the aggregate principal amount of Indebtedness and Attributable
Debt incurred pursuant to this paragraph (x) outstanding at any time
shall not exceed the greater of (I) $700,000,000 and (II) an amount
equal to 5% of Consolidated Total Assets;
(xi) Indebtedness of Allied Waste or any Restricted Subsidiary
that may be deemed to exist in connection with agreements providing
for indemnification, purchase price adjustments, earn-outs and
similar obligations in connection with acquisitions or sales of
assets and/or businesses effected in accordance with the
requirements of this Agreement;
(xii) Refinancing Indebtedness (other than Qualifying Senior
Secured Indebtedness or other Senior Secured Indebtedness) in
respect of Indebtedness permitted under subparagraph (ii), (iv),
(xiii), (xiv), (xv), (xviii) or (xxiii) of this Section 6.01(a);
(xiii) Qualifying Senior Secured Indebtedness; provided that
the Net Available Proceeds thereof are (x) to the extent required by
Section 2.11, applied to the prepayment of Term Loans and (y) to the
extent not required to be applied to the prepayment of Term Loans,
obtained in a transaction constituting a Permitted Refinancing
Transaction in respect of Targeted Senior Secured Indebtedness and
used to repay, redeem or repurchase such Targeted Senior Secured
Indebtedness;
(xiv) Permitted Subordinated Debt constituting Refinancing
Indebtedness in respect of Refinanceable Indebtedness and issued in
a Permitted Refinancing Transaction; provided that any Net Available
Proceeds not applied to the repurchase, redemption, repayment or,
subject to the limitation set forth in the definition of Refinancing
Indebtedness, defeasance of such Refinanceable Indebtedness shall be
applied to the prepayment of Term Loans to the extent required by
Section 2.11;
(xv) Qualifying Senior Secured Indebtedness or Permitted
Subordinated Debt (in addition to Qualifying Senior Secured
Indebtedness
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and Permitted Subordinated Debt that is incurred pursuant to clause
(xiii) or (xiv) of this Section 6.01(a)) issued for cash
consideration; provided that 100% of the Net Available Proceeds from
the issuance thereof are applied to the prepayment of Term Loans in
accordance with Section 2.11;
(xvi) Indebtedness consisting of reimbursement obligations
under surety, indemnity, performance, release and appeal bonds and
guarantees thereof, in each case securing obligations not
constituting Indebtedness for borrowed money and obtained in the
ordinary course of business;
(xvii) Indebtedness of Foreign Subsidiaries, Insurance
Subsidiaries, and other Restricted Subsidiaries that are not
Subsidiary Loan Parties incurred after the Restatement Effective
Date in an aggregate principal amount outstanding at any time not
exceeding the greater of (1) $280,000,000 and (2) 2% of Consolidated
Total Assets;
(xviii) unsecured Indebtedness of the Borrower or Allied Waste
in addition to Indebtedness permitted by paragraphs (i) through
(xvii) above; provided that (x) such Indebtedness is issued for cash
consideration, has a longer weighted average life than the Term
Loans hereunder, is not Guaranteed by any Restricted Subsidiary of
the Borrower and is permitted pursuant to Section 6.14 and (y) 100%
of the Net Available Proceeds of such Indebtedness are utilized to
prepay Term Loans in accordance with Section 2.11;
(xix) contingent liabilities arising out of endorsements of
checks and other negotiable instruments for deposit or collection in
the ordinary course of business;
(xx) other Indebtedness of Allied Waste, the Borrower and the
Restricted Subsidiaries in an aggregate principal amount outstanding
at any time not exceeding the greater of (1) $420,000,000 and (2) 3%
of Consolidated Total Assets;
(xxi) all premiums (if any), interest (including post-petition
interest and other than capitalized interest), fees, expenses,
indemnities, charges and additional or contingent interest on
obligations described in clauses (i) through (xx) above and (xxiii)
below;
(xxii) Indebtedness consisting of representations, warranties,
covenants and indemnities made by, and repurchase and other
obligations of, the Borrower or any Restricted Subsidiary in
connection with Securitizations permitted by Sections 6.05 and 6.06;
provided that such representations, warranties, covenants,
indemnities and repurchase and other obligations are of the type
customarily included in securitizations of accounts receivable
intended to constitute true sales of such accounts receivable to a
securitization vehicle; and
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(xxiii) (A) Qualifying Senior Unsecured Indebtedness issued in
Permitted LC or Public Notes Financing Transactions in an aggregate
principal amount not in excess of $500,000,000, provided that the
Net Available Proceeds thereof not applied to the repurchase of
Refinanceable Public Notes or to establish cash-collateralized
letter of credit facilities shall be applied to the prepayment of
Term Loans as required by Section 2.11; and (B) Indebtedness in
respect of letters of credit issued under cash-collateralized letter
of credit facilities established pursuant to Permitted LC or Public
Notes Financing Transactions.
(b) Neither Allied Waste nor the Borrower will, nor will they permit
any Restricted Subsidiary to, issue any Preferred Stock or other preferred
Equity Interests, other than the Mandatory Convertible Securities, the Series C
Mandatory Convertible Securities and Non-Cash-Pay Preferred Stock of Allied
Waste or the Borrower.
SECTION 6.02. Liens. Neither Allied Waste nor the Borrower will, nor
will it cause or permit any of the Restricted Subsidiaries to, create, incur,
assume or permit to exist any Lien on any property or assets (including stock or
other securities of any Person, including any Subsidiary of Allied Waste) now
owned or hereafter acquired by it or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on properties or assets of members of the Allied Group
existing on the Restatement Effective Date and set forth in Schedule 6.02;
provided that such Liens shall secure only those obligations (and
extensions, renewals and refinancings thereof permitted hereby) which they
secure on the Restatement Effective Date;
(b) Liens created under the Loan Documents (including under any Loan
Document prior to the amendment and restatement thereof);
(c) Permitted Encumbrances;
(d) purchase money security interests in, and security interests
arising in connection with a Sale and Leaseback Transaction involving,
real property, improvements thereto, equipment or other fixed assets
hereafter acquired (or, in the case of improvements, equipment or other
fixed assets, constructed or refurbished) by the Borrower or any
Subsidiary (including such security interests arising out of Capital Lease
Obligations); provided that (i) such security interests secure
Indebtedness or Attributable Debt permitted by Section 6.01(a)(x), (ii)
such security interests are incurred, and the Indebtedness or Attributable
Debt secured thereby is created, within 120 days after such acquisition
(or completion of such construction) or refurbishment, (iii) the
Indebtedness or Attributable Debt secured thereby does not exceed 100% of
the cost of such real property, improvements or equipment at the time of
such acquisition (or construction or refurbishment) and (iv) such security
interests do not apply to any other property or assets of the Borrower or
any Restricted Subsidiary (other than the proceeds of
108
the real property, improvements, equipment or other fixed assets subject
to the Lien);
(e) Liens securing Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was originally secured in accordance with
this Section 6.02, provided that such Lien does not apply to any
additional property or assets of Allied Waste, the Borrower or any
Subsidiary (other than (i) property or assets acquired after the issuance
or incurrence of such Refinancing Indebtedness that would have been
subject to the Lien securing the Indebtedness that such Refinancing
Indebtedness refinanced if such Indebtedness had not been refinanced, (ii)
additions to the property or assets subject to the Lien and (iii) the
proceeds of the property or assets subject to the Lien);
(f) any Lien on the property or assets of an Acquired Business
(other than on the stock or Equity Interests of a Subsidiary) securing
Indebtedness permitted by Section 6.01(a)(iv); provided that such Lien
existed at the time of and was not created in contemplation of the
acquisition of such Acquired Business;
(g) Liens arising from Uniform Commercial Code financing statements
and similar documents filed on a precautionary basis in respect of
operating leases intended by the parties to be true leases (other than any
such leases entered into in violation of this Agreement);
(h) any Lien on the property or assets of any Foreign Subsidiary,
Insurance Subsidiary or other Restricted Subsidiary that is not a
Subsidiary Loan Party securing Indebtedness permitted by Section
6.01(a)(xvii);
(i) (A) additional Liens on property (but not on the capital stock
or other ownership interests of any Subsidiary owned by the Borrower,
Allied Waste or any Subsidiary Loan Party) so long as the aggregate book
value of assets subject to such Liens at any time does not exceed
$25,000,000 and (B) additional Liens on property (but not on (1) the
capital stock or other ownership interests of any Subsidiary owned by the
Borrower, Allied Waste or any Subsidiary Loan Party or (2) landfills of
the Borrower, Allied Waste or any Subsidiary; provided that, this clause
(2) shall not be deemed to prohibit any Liens on such landfills existing
on the Restatement Effective Date to the extent that such Liens are
otherwise permitted by this clause (i)) to secure Indebtedness (including
Capital Lease Obligations in addition to those permitted by paragraph (d)
of this Section 6.02) so long as neither the outstanding aggregate
principal amount of such Indebtedness nor the aggregate book value of
assets subject to such Liens, taken together with the aggregate book value
of assets subject to liens permitted under the immediately preceding
clause (A), at any time exceeds the greater of (1) $350,000,000 and (2)
2.5% of Consolidated Total Assets;
(j) any Lien pursuant to Environmental Law for costs or damages
which are not yet due (by virtue of a written demand for payment by a
Governmental Authority) or which are being contested in compliance with
the standard set forth
109
in section 5.08(a), or on property that the Borrower or a Subsidiary has
determined to abandon if the sole recourse for such costs or damages is to
such property; provided that the liability of the Borrower and the
Subsidiaries with respect to the matters giving rise to all such Liens
shall not, in the reasonable estimate of the Borrower (in light of all
attendant circumstances, including the likelihood of contribution by third
parties), exceed the greater of (i) $280,000,000 and (ii) 2% of
Consolidated Total Assets;
(k) all Liens created under the Shared Collateral Security Agreement
and the Shared Collateral Pledge Agreement securing obligations in respect
of the Qualifying Senior Secured Indebtedness permitted to be issued
pursuant to Section 6.01(a); provided that such obligations are initially
secured under such agreements at or about the time of the issuance
thereof;
(l) Liens in favor of any Securitization Vehicle or any collateral
agent on Securitization Assets transferred or purported to be transferred
to such Securitization Vehicle in connection with Securitizations
permitted by Sections 6.05 and 6.06;
(m) Liens on any assets securing any premium, interest expense, fee,
indemnity, charge or other expense permitted by Section 6.01(a)(xxi), but
only to the extent that the underlying Indebtedness is also secured by
such assets; and
(n) Liens on bank accounts (including any cash and cash equivalents
on deposit therein) securing cash-collateralized letters of credit issued
pursuant to letter of credit facilities established in Permitted LC or
Public Notes Financing Transactions.
Neither Allied Waste, the Borrower, nor any Restricted Subsidiary will issue or
assume any Indebtedness (other than Indebtedness issued pursuant to any 2001
Indenture secured only by the Shared Collateral) under the AWNA Senior Note
Indenture (other than the AWNA Senior Notes outstanding on the date hereof), the
BFI Indenture (other than the BFI Indenture Debt outstanding on the date hereof)
or any supplement or amendment thereto if such Indebtedness would be entitled to
be secured on a pari passu basis with the Obligations or otherwise by any Lien
on any Collateral securing the Obligations.
SECTION 6.03. No Other Negative Pledge. Allied Waste will not, nor
will it cause or permit any of its Restricted Subsidiaries to, enter into any
agreement prohibiting or conditioning (including pursuant to any pari passu
security requirement) the creation or perfection of any Lien upon any of its
property or assets, other than:
(i) in favor of the Lenders, the Issuing Banks or the Secured
Parties;
(ii) in favor of the holders of Permitted Subordinated Debt;
provided that such agreement does not so restrict Liens securing the
Obligations;
110
(iii) in connection with Indebtedness that may be secured by a
Lien or in connection with obligations secured by Permitted
Encumbrances in compliance with ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇),
(▇), (▇), (▇), (▇), (▇) or (n); provided that such prohibition or
condition does not apply to any property or assets now or hereafter
in existence not subject to such Lien;
(iv) in connection with any lease permitted under Section 6.04
solely to the extent that such lease prohibits a Lien on the lease
or the property subject to such lease;
(v) pursuant to any agreement entered into by any member of
the Allied Group in connection with an Asset Sale for the period
beginning with the date such agreement is entered into through the
date such Asset Sale is consummated; provided that (x) such negative
pledge shall only relate to the property being sold pursuant to such
Asset Sale and (y) such Asset Sale is permitted hereunder;
(vi) pursuant to Section 9.14 of this Agreement;
(vii) pursuant to any other agreement; provided that (x) no
landfills or vehicles covered by a certificate of title shall be
subject to such prohibition or condition and (y) the aggregate fair
market value of all assets that are subject to such prohibition or
condition shall not exceed $25,000,000 at any time; or
(viii) in connection with obligations secured by a Lien
permitted under Section 6.02(i)(A); provided that such prohibition
or condition does not apply to any property or assets now or
hereafter in existence not subject to such Lien.
SECTION 6.04. Sale and Lease-Back Transactions. Allied Waste will
not, nor will it cause or permit any of its Restricted Subsidiaries to, enter
into any Sale and Leaseback Transaction; provided that the Borrower or any
Restricted Subsidiary may enter into any such transaction that (i) does not
result in Capital Lease Obligations or Attributable Debt not permitted by
Section 6.01(a)(x) and (ii) does not result in any Liens other than Liens
permitted by Section 6.02(d).
SECTION 6.05. Investments, Loans, Guarantees and Acquisitions.
Allied Waste will not, and will not permit any of its Restricted Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Restricted Subsidiary prior to such merger) any
Investment in any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Investments by Allied Waste and the Borrower in the capital
stock or other ownership interests of the Borrower and entities that,
prior to and after such investments, are Loan Parties; loans or advances
by the Borrower
111
or any Loan Party to the Borrower or any Loan Party; and loans or advances
by the Borrower or any Loan Party to Allied Waste or by Allied Waste to
the Borrower or any Loan Party; provided that in any event no Loan Party
shall make any Investments in, or loans or advances to, any Insurance
Subsidiary, any Foreign Subsidiary, any Restricted Subsidiary that is not
a Loan Party or any Unrestricted Subsidiary after the Restatement
Effective Date (other than in accordance with clause (h) and (r) below);
(b) Permitted Investments;
(c) Investments by the members of the Allied Group existing on the
Restatement Effective Date and set forth in Schedule 6.05;
(d) loans and advances to employees of members of the Allied Group
(including for travel, entertainment and relocation expenses) in the
ordinary course of their business;
(e) loans by members of the Allied Group to their employees in
connection with management incentive plans not to exceed $25,000,000 at
any time outstanding; provided that such limitation shall not apply to
loans the proceeds of which are used to purchase common stock of Allied
Waste;
(f) guarantees not constituting Indebtedness by Allied Waste or any
Restricted Subsidiary of any contractual obligation (other than
Indebtedness) of the Borrower or any Loan Party;
(g) Investments in the capital stock or other ownership interests of
any Subsidiary Loan Party; provided that (i) such capital stock or
interest is pledged to the Collateral Agent or the Collateral Trustee
pursuant to the Non-Shared Collateral Pledge Agreement or the Shared
Collateral Pledge Agreement and (ii) Allied Waste, the Borrower and such
Subsidiary comply with the applicable provisions of Section 5.10 with
respect to such newly formed Subsidiary;
(h) other Investments made after the Restatement Effective Date in
an aggregate amount at any time outstanding not to exceed the greater of
(x) $420,000,000 and (y) 3% of Consolidated Total Assets;
(i) loans or advances (which shall not be deemed to include accounts
receivable) made to customers in an aggregate amount outstanding not at
any time exceeding $50,000,000;
(j) receivables owing to members of the Allied Group that arise in
the ordinary course of business and are payable or dischargeable in
accordance with customary trade terms;
(k) Permitted Acquisitions and other transactions permitted by 6.06;
(l) investments in or acquisitions of landfills, collection centers
or other producing assets located in the United States pursuant to
contemporaneous
112
exchanges of similar assets with any other Person; provided that any
portion of assets acquired for consideration other than any such exchange
shall be deemed a Capital Expenditure and be subjected to the limitations
of Section 6.15;
(m) any Investment consisting of a Hedging Agreement permitted by
Section 6.07;
(n) any Investment acquired by Allied Waste or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by Allied Waste or any of its Restricted Subsidiaries as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable; (B) as a result of
a foreclosure by Allied Waste or any of its Restricted Subsidiaries or
other transfer of title with respect to any secured Investment in default;
or (C) in connection with the acquisition of an Acquired Business
permitted hereunder which was an Investment of such Acquired Business
existing prior to the date of such acquisition and not made in
contemplation thereof;
(o) the Guarantees issued by Allied Waste and/or its Subsidiaries in
respect of the 2001 Senior Notes and any other Guarantee expressly
permitted pursuant to Section 6.01(a)(ii), (vi), (ix) or (xx);
(p) investments consisting of Sellers' Retained Interests in
Securitizations permitted by Section 6.06;
(q) investments consisting of any non-cash consideration received in
connection with an Asset Sale permitted hereunder; and
(r) investments by the Borrower and Restricted Subsidiaries in the
RMI Subsidiaries consisting of the RMI Intercompany Notes, loans and
advances pursuant to the RMI Funding Operations and the purchase of
existing minority equity interest in the RMI Subsidiaries pursuant to put
and call arrangements existing on March 30, 2004 (which put and call
arrangements may be extended as may be determined by the Borrower in
connection with settlement negotiations in respect thereof).
Notwithstanding any other provision of this Agreement but subject to the proviso
below, Allied Waste and the Borrower will not, and will not permit any
Restricted Subsidiary to, (i) effect any acquisition (including any Permitted
Acquisition) of a business concern or purchase or acquire any Equity Interests
of any business concern other than such an acquisition or purchase made by (or
pursuant to a merger or consolidation of) the Borrower or a Restricted
Subsidiary other than BFI or its Subsidiaries, (ii) effect any transfer of
material assets or properties, or of Equity Interests in any Restricted
Subsidiary, to, or make any material investment (other than intercompany loans
and advances permitted by Section 6.01) in, BFI or its Restricted Subsidiaries
(other than any such transfer or investment made by BFI or its Restricted
Subsidiaries) or (iii) effect any merger or consolidation with BFI or its
Subsidiaries (other than any such merger or
113
consolidation involving only BFI or its then existing Subsidiaries); provided,
however, that any transaction referred to in clauses (i), (ii) or (iii) above
may be effected if (x) such transaction can reasonably be expected to result in
material Tax, operational or corporate governance savings or efficiencies or
benefits of the Allied Group or avoid material Tax, operational or corporate
governance costs, inefficiencies or detriments to the Allied Group that would
result from effecting the relevant acquisition, transfer, investment or merger
in a manner otherwise permitted by this paragraph and (y) Allied Waste and the
Borrower, in the exercise of their commercially reasonable efforts, are not able
to achieve comparable Tax savings, efficiencies or benefits or substantially
avoid such material Tax, operational or corporate governance costs,
inefficiencies or detriments, by restructuring the relevant transaction or
otherwise, in a manner permitted by this paragraph without regard to this
proviso.
SECTION 6.06. Mergers, Consolidations, Sales of Assets and
Acquisitions. Neither Allied Waste nor the Borrower will, nor will it cause or
permit any of its Restricted Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or conduct any Asset Sale of (in one transaction or in a series of transactions)
all or any substantial part of Allied Waste's, the Borrower's and the other
Restricted Subsidiaries' assets (whether now owned or hereafter acquired), or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other Person
consisting of a business or operating unit, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Restricted Subsidiary of Allied Waste
(other than an Insurance Subsidiary, BFI or any subsidiary of BFI) may
merge into the Borrower in a transaction in which the Borrower is the
surviving corporation and (ii) any Restricted Subsidiary of Allied Waste
(other than an Insurance Subsidiary) may merge into or consolidate with
any other Restricted Subsidiary of Allied Waste (other than an Insurance
Subsidiary) in a transaction in which the surviving entity is a wholly
owned Restricted Subsidiary of Allied Waste and no Person other than the
Borrower or a wholly owned Subsidiary of Allied Waste receives any
consideration (provided that BFI and its Restricted Subsidiaries shall not
merge into or consolidate with the Borrower or any Subsidiary other than
BFI and its Restricted Subsidiaries). In connection with one or more
Permitted Acquisitions, subject to Section 6.05 in the case of BFI and its
subsidiaries, the Borrower or any of its Restricted Subsidiaries
(including BFI and any Restricted Subsidiary of BFI) may merge with or
into another Person (provided that the Borrower or a Restricted Subsidiary
shall be the surviving entity). In addition, in connection with one or
more Permitted Acquisitions and subject to Section 6.05, BFI or any
Restricted Subsidiary of BFI may engage in any transaction referred to in
clauses (i) and (ii) above; provided, that (x) such transaction can
reasonably be expected to result in material Tax, operational or corporate
governance savings, efficiencies or benefits of the Allied Group or avoid
material Tax, operational or corporate governance costs, inefficiencies or
detriments to the Allied Group that would result from effecting the
relevant merger in a manner otherwise permitted by this
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paragraph and (y) Allied Waste and the Borrower, in the exercise of their
commercially reasonable efforts, are not able to achieve comparable Tax,
operational or corporate governance savings, efficiencies or benefits or
substantially avoid such material Tax costs, inefficiencies or detriments
by restructuring the relevant transaction or otherwise, in a manner
permitted by this paragraph (a) without regard to this proviso;
(b) any Restricted Subsidiary of Allied Waste (other than the
Borrower) may change the jurisdiction in which it is incorporated or
organized so long as (i) the new jurisdiction of incorporation or
organization of any Domestic Subsidiary is in the United States, (ii)
notice is given to the Administrative Agent pursuant to Section 5.13 and
(iii) any Uniform Commercial Code financing statements or amendments or
any other documents reasonably requested by the Administrative Agent to
evidence such change have been filed by the Administrative Agent within
ten (10) days of such change;
(c) the Borrower or any of the Loan Parties (other than (i)
Insurance Subsidiaries and (ii) BFI and its subsidiaries, unless permitted
pursuant to the last paragraph of Section 6.05) may make Permitted
Acquisitions and Investments permitted by Section 6.05;
(d) the Borrower or any of its Restricted Subsidiaries may conduct
Asset Sales; provided that the Net Available Proceeds of each such Asset
Sale shall be applied in the manner set forth in Section 2.11; and
provided further that any sale, transfer or other disposition of assets or
stock with a fair market value in excess of 2% of Consolidated Total
Assets and not otherwise prohibited by this Section 6.06 shall not be
permitted unless (A) such sale, transfer or other disposition is for
consideration at least 75% of which is cash and (B) such consideration is
at least equal to the fair market value of the assets, transferred or
disposed of (as determined in good faith by the board of directors or
officers of the Borrower);
(e) the Borrower and its Restricted Subsidiaries may effect asset
swaps permitted by Section 6.05(l);
(f) subject to the last sentence of Section 6.05, Allied Waste may
make Asset Sales to any of the Loan Parties and any Loan Party may make
Assets Sales to Allied Waste or to another Loan Party; and
(g) the Borrower or any Restricted Subsidiary may sell
Securitization Assets to one or more Securitization Vehicles in
Securitizations; provided that (i) each such Securitization is effected on
market terms, (ii) the aggregate amount of Third Party Securities in
respect of all such Securitizations does not exceed $400,000,000 at any
time outstanding, (iii) the aggregate amount of the Sellers' Retained
Interests in such Securitizations does not exceed an amount at any time
outstanding that is customary for similar transactions, (iv) the proceeds
to each such Securitization Vehicle from the issuance of Third Party
Securities are
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applied substantially simultaneously with receipt thereof to the purchase
from the Borrower or Restricted Subsidiaries of Securitization Assets and
an amount equal to 100% of the Net Available Proceeds from each such
Securitization is applied to the mandatory repayment of Term Loans in
accordance with Section 2.11(c) and (v) the Equity Interests and Sellers'
Retained Interests in respect of each such Securitization Vehicle shall be
pledged to the Shared Collateral Secured Parties pursuant to the Shared
Collateral Pledge Agreement or Shared Collateral Security Agreement or the
Secured Parties pursuant to the Non-Shared Collateral Pledge Agreement or
Non-Shared Collateral Security Agreement, as the case may be (it being
understood that Section 9.14 shall apply to the Collateral Agent and any
Secured Parties benefiting from any such pledge).
SECTION 6.07. Hedging Agreements. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.17, (b)
Hedging Agreements with respect to AWNA Senior Notes, 2001 Senior Notes and BFI
Indenture Debt, (c) Hedging Agreements with respect to any Refinancing
Indebtedness, Qualifying Senior Secured Indebtedness or Permitted Subordinated
Debt, (d) Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which Allied Waste or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities, (e) Hedging
Agreements existing on the Restatement Effective Date and (f) Hedging Agreements
in connection with any Securitizations permitted by Sections 6.05 and 6.06.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) Allied Waste will not, nor will it permit any of its Restricted Subsidiaries
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except:
(i) Allied Waste may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay
dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an
aggregate amount of $25,000,000 during any fiscal year, pursuant to and in
accordance with stock option plans or other benefit plans or in connection with
incentive or compensation arrangements for current or former management or
employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make
dividend payments to Allied Waste solely to the extent necessary for Allied
Waste to pay for Taxes and to pay administrative expenses to conduct its
business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste and its Restricted Subsidiaries may make Restricted
Payments to the extent required by the terms of its joint venture or similar
agreements in
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effect on the Restatement Effective Date and listed on Schedule 6.08; provided
that immediately prior, and after giving effect to, such Restricted Payment, no
Default or Event of Default shall have occurred and be continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash
dividends to Allied Waste in an amount sufficient to permit Allied Waste to pay
cash dividends in respect of its capital stock and Allied Waste may pay cash
dividends in respect of its capital stock; provided that all cash dividend
payments in accordance with this clause (vi) are subject to the satisfaction of
the following additional conditions on the date of such dividend payment and
after giving effect thereto:
(w) no Default or Event of Default shall have occurred and be
continuing;
(x) the Leverage Ratio as of the last day of the previous fiscal
quarter is less than 4.00 to 1.00;
(y) the Interest Coverage Ratio for the Rolling Period most recently
ended prior to the date of such dividend payment, taking into account that
such dividend payment is payable in cash, is not less than that required
by Section 6.13; and
(z) the aggregate amount of Restricted Payments made pursuant to
this clause (vi) in any Excess Cash Flow Calculation Period does not
exceed an amount equal to the Borrower's Portion of Excess Cash Flow for
the immediately preceding Excess Cash Flow Calculation Period less the
aggregate amount of all other Designated Excess Cash Expenditures made in
such current Excess Cash Flow Calculation Period;
(vii) Allied Waste may repurchase its outstanding common stock;
provided, however, that all Restricted Payments in accordance with this clause
(vii) are subject to the satisfaction of the following additional conditions on
the date of such Restricted Payment and after giving effect thereto:
(x) no Default or Event of Default shall have occurred and be
continuing;
(y) the Leverage Ratio as of the last day of the previous fiscal
quarter is less than or equal to 3.25 to 1.00; and
(z) the aggregate amount of Restricted Payments made pursuant to
this clause (vii) in any Excess Cash Flow Calculation Period does not
exceed an amount equal to the Borrower's Portion of Excess Cash Flow for
the immediately preceding Excess Cash Flow Calculation Period less the
aggregate amount of all other Designated Excess Cash Expenditures made in
such current Excess Cash Flow Calculation Period;
(viii) Allied Waste may redeem Permitted Cure Securities, if any, in
accordance with the terms thereof with the proceeds of an issuance of its common
stock or Preferred Stock; provided that (1) no Event of Default shall have
occurred and be continuing and (2) such stock so issued is (x) Non-Cash-Pay and
(y) subordinate to the
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Obligations at least to the same extent that such Permitted Cure Securities are
subordinate to the Obligations;
(ix) Allied Waste may declare and pay dividends in respect of the
Series C Mandatory Convertible Securities, the Mandatory Convertible Securities
and Qualifying Preferred Stock; and
(x) the Borrower or any Restricted Subsidiary may pay cash dividends
to Allied Waste in an amount sufficient to permit Allied Waste to pay cash
dividends on the Series C Mandatory Convertible Securities, the Mandatory
Convertible Securities and Qualifying Preferred Stock (in each case, including
shares theretofore paid as dividends thereon in accordance with clause (ix)
hereof); provided, however, that no Default or Event of Default shall have
occurred and be continuing upon declaration of such cash dividend, after giving
effect thereto.
(b) Allied Waste will not, nor will it permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction (other than
restrictions on payments, repayments or dividends made or paid by the Borrower
to Allied Waste) on the ability of any such Subsidiary to (1) pay any dividends
or make any other distributions on its capital stock or any other ownership
interest or (2) make or repay any loans or advances to the Borrower or the
parent of such Subsidiary, except for:
(w) restrictions imposed by law or by any Loan Document;
(x) existing restrictions under the Indebtedness set forth in
Schedule 6.01;
(y) existing restrictions under the AWNA Senior Note Indenture, any
2001 Indenture outstanding on the Restatement Effective Date and the 10%
Note Documents and restrictions in other Indebtedness permitted by Section
6.01(a) issued after the Restatement Effective Date that are no more
restrictive than such existing restrictions; and
(z) restrictions pursuant to (1) customary provisions in agreements
entered into by any member of the Allied Group in connection with a joint
venture permitted hereunder; provided that such restrictions only relate
to such joint venture, the Equity Interests in such joint venture and the
assets owned or otherwise held by such joint venture and (2) any agreement
entered into by any member of the Allied Group in connection with an Asset
Sale for the period beginning with the date such agreement is entered into
through the date that such Asset Sale is consummated; provided that (A)
such restrictions only relate to the capital stock or assets that are
being sold pursuant to such Asset Sale and (B) such Asset Sale is
permitted hereunder.
SECTION 6.09. Transactions with Affiliates. (a) Allied Waste will
not, nor will it cause or permit any of its Restricted Subsidiaries to, sell or
transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise
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engage in any other transactions with, any of its Affiliates (other than as
provided in (b) below), except:
(i) subject to the provisions of Section 6.08, between or among
Allied Waste, the Borrower or any Subsidiary Loan Parties; and
(ii) that any member of the Allied Group may engage in any of the
foregoing transactions, including the payment of financial advisory,
financing, underwriting or placement fees or other investment banking
fees, in the ordinary course of business at prices and on terms and
conditions not less favorable to the members of the Allied Group than
could be obtained on an arm's-length basis from unrelated third parties.
(b) Allied Waste will not, nor will it cause or permit any of its
Subsidiaries to, make any payment of or on account of monitoring or management
fees payable to the Sponsors or their Affiliates unless on the date of such
payment no Default or Event of Default has occurred and is continuing or would
result therefrom.
(c) The foregoing paragraph (a) shall not prohibit, to the extent
otherwise permitted under this Agreement, (i) any issuance of securities of
Allied Waste, or other payments, awards or grants in cash, securities of Allied
Waste or other property pursuant to, or the funding of, employment arrangements,
stock options and stock ownership plans approved by the board of directors of
Allied Waste, (ii) loans or advances to employees of Allied Waste, the Borrower
or any Subsidiary in accordance with Sections 6.05(d) and (e), (iii) the payment
of fees and indemnitees to directors, officers and employees of Allied Waste,
the Borrower and the Subsidiaries in the ordinary course of business, (iv)
transactions pursuant to Hedging Agreements permitted by Section 6.07, (v) any
employment agreements entered into by the Borrower or any of the Restricted
Subsidiaries in the ordinary course of business, (vi) any purchase by the
Sponsors of capital stock of Allied Waste or any purchase by Allied Waste of
capital stock or other equity securities of any Restricted Subsidiaries or any
contribution by Allied Waste to the equity capital of the Borrower, (vii)
Securitizations permitted by Sections 6.05 and 6.06, (viii) any Restricted
Payment permitted by Section 6.08 or (ix) (A) RMI Funding Operations, Assumed
RMI Liabilities and RMI Intercompany Notes, (B) management agreements pursuant
to which RMI Subsidiaries manage liabilities of the Borrower or other Restricted
Subsidiaries, corporate services arrangements for the benefit of the RMI
Subsidiaries and other transactions reasonably related or incidental to the
foregoing transactions referred to in this clause (ix) in each case in the
ordinary course and in a manner consistent with past practices and (C)
management agreements entered into after March 30, 2004 pursuant to which RMI
Subsidiaries manage liabilities of the Borrower or other Restricted Subsidiaries
on a fee for services basis.
SECTION 6.10. Business of Allied Waste, Borrower and Subsidiaries.
Allied Waste will not, nor will it cause or permit any of its Restricted
Subsidiaries to:
(a) engage at any time, (i) in the case of the Borrower and each of
the Restricted Subsidiaries (other than the Insurance Subsidiaries), in
any business or
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business activity other than the business currently conducted by them and
business activities reasonably related or incidental thereto and (ii) in
the case of Allied Waste, in any business or business activity other than
the direct ownership of all the outstanding stock of the Borrower or of
any Unrestricted Subsidiary and all activities reasonably related or
incidental thereto; or
(b) enter into any general partnership arrangement or become a
general partner of a limited partnership arrangement other than through a
special purpose wholly owned Subsidiary; provided that any Investments
associated with such general partnership shall be permitted hereunder.
In addition, none of the Loan Parties will permit the Insurance
Subsidiaries to engage to any substantial extent in any line or lines of
business or business activity other than the business currently conducted by
such Insurance Subsidiaries and business activities reasonably related or
incidental thereto.
SECTION 6.11. Other Indebtedness and Agreements. The Borrower will
not, nor will it cause or permit any of the Restricted Subsidiaries to:
(a) make any distribution, whether in cash, property, securities or
a combination thereof, other than scheduled payments and mandatory
prepayments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay,
or offer or commit to pay, or directly or indirectly redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for
the aforesaid purposes, (i) any Junior Indebtedness or (ii) any other
Indebtedness for borrowed money (except for the Obligations and
intercompany Indebtedness permitted hereby) other than, without
duplication, (u) as part of the Transactions, the redemption of an
aggregate principal amount of $125,000,000 of the 9.25% Notes and the
repurchase of an aggregate principal amount of $48,940,000 of the
Borrower's 7.625% Senior Secured Notes due 2006, (v) Optional Repurchases
of Refinanceable Indebtedness made after the Restatement Effective Date
with Net Available Proceeds received from the issuance and sale of common
stock or Non-Cash-Pay Preferred Stock of Allied Waste, provided that such
Optional Repurchases are effected not later than 150 days after receipt of
such Net Available Proceeds, (w) prepayments of Indebtedness permitted or
required pursuant to Section 2.11(c) and Section 6.01(a), (x) payments of
Indebtedness incurred pursuant to Section 6.01(a)(xxii), (y) prepayments
of Indebtedness incurred under Section 6.01(a)(xvii) or (xx) with the
proceeds of other Indebtedness incurred under Section 6.01(a)(xvii) or
(xx), respectively, and (z) prepayments of Refinanceable Indebtedness in a
cumulative amount per Excess Cash Flow Calculation Period not greater than
an amount equal to the Borrower's Portion of Excess Cash Flow for the
immediately preceding Excess Cash Flow Calculation Period less the amount
of other Designated Excess Cash Expenditures made in such current Excess
Cash Flow Calculation Period, commencing with the Excess Cash Flow
Calculation Period ended March 31, 2005; provided however that, in the
event that the Borrower issues or incurs Refinancing Indebtedness with
respect to the Indebtedness
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prepaid, repurchased or redeemed pursuant to this clause (z) no later than
30 days after making any such prepayment, repurchase or redemption, then
the Borrower's Portion of Excess Cash Flow available in such Excess Cash
Flow Calculation Period shall be increased in an amount equal to the Net
Available Proceeds received in connection with such issuance or
incurrence, provided that such amount of the Borrower's Portion of Excess
Cash Flow shall not be increased by an amount greater than the amount
expended in connection with the applicable prepayment, repurchase or
redemption by the Borrower; provided, further, however, that for purposes
of determining the amount of Indebtedness that may be prepaid, repurchased
or redeemed pursuant to this paragraph (a) in circumstances where the
determination of such amount is based on the Net Available Proceeds of a
separate issuance or incurrence of Indebtedness, the Net Available
Proceeds of such separate issuance or incurrence of Indebtedness shall be
deemed to equal the Net Available Proceeds thereof without giving effect
to any deduction of fees or expenses of such separate issuance of
Indebtedness that are paid with the proceeds of Revolving Loans or
Swingline Loans in accordance with Section 5.16; or
(b) make any payment or prepayment of any Indebtedness that would
violate the terms of this Agreement or of such Indebtedness, any agreement
or document evidencing, related to or securing the payment or performance
of such Indebtedness or any subordination agreement or provision
applicable to such Indebtedness.
SECTION 6.12. Amendment of Material Documents. Without the consent
of the Required Lenders, neither Allied Waste nor the Borrower will, nor will
they permit any Restricted Subsidiary to, permit any waiver, supplement,
modification, amendment, termination or release of (a) any Subordinated Debt
Document, the AWNA Senior Debt Indenture, the 2001 Indenture, the BFI Indenture
or any other indenture, instrument or agreement pursuant to which any
Indebtedness or Preferred Stock of any member of the Allied Group is outstanding
in an aggregate outstanding principal or face amount in excess of $50,000,000 or
(b) its certificate of incorporation, by-laws or other organizational documents
in any such case, in a manner which could, individually or in the aggregate,
reasonably be expected to cause a Material Adverse Effect.
SECTION 6.13. Interest Coverage Ratio. Allied Waste and the Borrower
will not permit the Interest Coverage Ratio as of the last day of any fiscal
quarter ending during any period set forth below to be less than the ratio set
forth below opposite such period:
Period Minimum Ratio
----------------------------------------- --------------
January 1, 2005 through December 31, 2005 1.85 to 1.00
January 1, 2006 through June 30, 2006 1.95 to 1.00
July 1, 2006 through December 31, 2006 2.00 to 1.00
January 1, 2007 through March 31, 2007 2.10 to 1.00
April 1, 2007 through June 30, 2007 2.15 to 1.00
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Period Minimum Ratio
----------------------------------------- --------------
July 1, 2007 through March 31, 2008 2.20 to 1.00
April 1, 2008 through September 30, 2008 2.25 to 1.00
October 1, 2008 through December 31, 2008 2.30 to 1.00
January 1, 2009 through June 30, 2009 2.40 to 1.00
July 1, 2009 through December 31, 2009 2.55 to 1.00
January 1, 2010 and thereafter 2.75 to 1.00
SECTION 6.14. Leverage Ratio. Allied Waste and the Borrower will not
permit the Leverage Ratio as of the last day of any fiscal quarter ending during
any period set forth below to be more than the ratio set forth opposite such
period:
Period Maximum Ratio
----------------------------------------- --------------
January 1, 2005 through December 31, 2005 6.50 to 1.00
January 1, 2006 through June 30, 2006 6.25 to 1.00
July 1, 2006 through December 31, 2006 6.00 to 1.00
January 1, 2007 through June 30, 2007 5.75 to 1.00
July 1, 2007 through December 31, 2008 5.50 to 1.00
January 1, 2009 through June 30, 2009 5.25 to 1.00
July 1, 2009 through December 31, 2009 5.00 to 1.00
January 1, 2010 and thereafter 4.50 to 1.00
SECTION 6.15. Capital Expenditures. Allied Waste and the Borrower
will not, and will not permit any of the Restricted Subsidiaries to, make any
Capital Expenditures that would cause the aggregate amount of such Capital
Expenditures made by Allied Waste, the Borrower and the Restricted Subsidiaries
in any fiscal year to exceed $850,000,000.
SECTION 6.16. Designation of Unrestricted Subsidiaries. The Borrower
will not designate any Subsidiary (other than a newly created Subsidiary in
which no investment has previously been made) as an "Unrestricted Subsidiary"
under this agreement (a "Designation") unless:
(i) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(ii) the Borrower has delivered to the Agent (x) written notice of such
Designation and (y) a certificate, dated the effective date of such
Designation, of an Executive Officer stating that no Event of
Default has occurred and is continuing and setting forth reasonably
detailed calculations demonstrating pro forma compliance with
Section 6.13 and Section 6.14 in accordance with paragraph (i)
above; and
(iii) such Subsidiary has not Guaranteed (after giving effect to such
Designation and the release contemplated thereby) any Indebtedness
of Allied Waste or any other Restricted Subsidiary.
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Neither the Borrower nor any Restricted Subsidiary shall at any time (x) provide
a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be directly
or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z)
be directly or indirectly liable for any other Indebtedness which provides that
the holder thereof may (upon notice, lapse of time or both) declare a default
thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary, except in the case of clause (x) or
(y) to the extent permitted under Section 6.01 and Section 6.05 hereof. Each
Designation shall be irrevocable, and no Unrestricted Subsidiary may become a
Restricted Subsidiary, be merged with or into Allied Waste, the Borrower or a
Restricted Subsidiary or liquidate into or transfer substantially all its assets
to Allied Waste, the Borrower or a Restricted Subsidiary; provided, however,
that any RMI Subsidiary may be redesignated as a Restricted Subsidiary if such
RMI Subsidiary is a wholly owned subsidiary of the Borrower and the Borrower
delivers to the Agent written notice of such redesignation and a certificate of
a Financial Officer stating that no Event of Default has occurred and is
continuing after giving effect to such redesignation.
SECTION 6.17. Commingling of Accounts. The Borrower will not, nor
will it cause or permit any Restricted Subsidiary to, commingle amounts relating
to Securitization Assets sold pursuant to a Securitization with cash or any
other amounts of the Borrower and its Subsidiaries other than the temporary
commingling of collections on and proceeds of any accounts receivable or related
assets of the Borrower and its Subsidiaries, in each case as may be necessary to
identify and sort such collections and proceeds.
ARTICLE VII
Events of Default; Right To Cure
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(i) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(ii) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (i) of
this Section 7.01) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(iii) any representation or warranty made or deemed made by or on
behalf of Allied Waste, the Borrower or any Restricted Subsidiary in any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in
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any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect in
any material respect when made or deemed made;
(iv) Allied Waste or the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.01(a) (with
respect to the existence of Allied Waste or the Borrower) or 5.05(a) or in
Article VI;
(v) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (i), (ii) or (iv) of this Section 7.01), and such
failure shall continue unremedied for a period of 45 days after notice
thereof from the Administrative Agent to the Borrower (which notice will
be given promptly at the request of any Lender);
(vi) Allied Waste, the Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable beyond the applicable period of grace, if any, provided in
the instrument or agreement under which such Material Indebtedness was
created;
(vii) any event or condition occurs (A) that results in any Material
Indebtedness becoming due prior to its scheduled maturity or (B) that
enables or permits (after giving effect to any applicable grace period
with respect thereto; provided that, during the applicable grace period,
no additional consideration (other than nominal fees and customary
expenses) is paid for purposes of obtaining any waiver, supplement,
amendment or modification in respect of such Material Indebtedness) the
holder or holders of any Material Indebtedness or any trustee or agent on
its or their behalf to cause any Material Indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (vii) shall not
apply to Indebtedness that becomes due as a result of the voluntary sale
or transfer of the property or assets of the Borrower or any Restricted
Subsidiary;
(viii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (A) liquidation,
reorganization or other relief in respect of Allied Waste, the Borrower or
any Material Loan Party or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (B) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for Allied Waste, the Borrower or any Material Loan
Party or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 90 days or an order
or decree approving or ordering any of the foregoing shall be entered;
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(ix) Allied Waste, the Borrower or any Material Loan Party shall (A)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (B) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described
in clause (viii) of this Article, (C) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for Allied Waste, the Borrower or any Material Loan
Party or for a substantial part of its assets, (D) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (E) make a general assignment for the benefit of
creditors or (F) take any action for the purpose of effecting any of the
foregoing;
(x) Allied Waste, the Borrower or any Material Loan Party shall
become unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(xi) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 (subtracting therefrom any amount covered
by insurance as to which the insurer has acknowledged in writing its
obligation to cover) shall be rendered against Allied Waste, the Borrower,
any Material Loan Party or any combination thereof and the same shall
remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of Allied
Waste, the Borrower or any Material Loan Party to enforce any such
judgment;
(xii) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred and are then outstanding, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $50,000,000 for all periods;
(xiii) (A) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to
be, a valid and perfected Lien on any material portion of the Collateral,
with the priority required by the applicable Security Document, except (I)
as a result of the sale or other disposition of the applicable Collateral
in a transaction permitted under the Loan Documents or (II) as a result of
the Collateral Agent's or the Collateral Trustee's, as applicable, failure
to maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Security Documents or (B) the
Obligations of the Borrower, or the obligations of Allied Waste or any
Subsidiary pursuant to a Guarantee Agreement shall cease to constitute
senior indebtedness under the subordination provisions of any document or
instrument evidencing any subordinated Indebtedness existing on the
Restatement Effective Date or any Permitted Subordinated Debt or such
subordination provisions shall cease to be
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legal, valid and binding obligations of the parties thereto, enforceable
against such parties in accordance with their terms;
(xiv) a Change in Control shall occur;
(xv) an Environmental Claim shall have been asserted against any
member of the Allied Group or any of their respective Affiliates that is
reasonably likely to be determined adversely to any member of the Allied
Group, and the amount thereof (either individually or in the aggregate) is
reasonably likely to have a Material Adverse Effect (but after deducting
any portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor); or
(xvi) (A)(1) any Subsidiary that is the issuer of any Third Party
Securities shall fail to pay any principal or any reimbursement obligation
with respect thereto when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof
or otherwise, (2) any Subsidiary that is the issuer of any Third Party
Securities shall fail to pay any interest or any fee or other amount with
respect thereto, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three Business Days
or (3) any event or condition occurs that results in any Third Party
Securities becoming due prior to their scheduled maturity date or (B) any
event described in clause (viii), (ix) or (x) shall occur with respect to
any Subsidiary that is the issuer of any Third Party Securities;
then, and in every such event (other than an event with respect to the Borrower
described in clause (viii) or (ix) of this Section 7.01), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in the case of any event with respect to Allied Waste or the
Borrower described in clause (viii) or (ix) of this Section 7.01, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
SECTION 7.02. Borrower's Right to Cure. (a) Leverage Ratio.
Notwithstanding anything to the contrary contained in Section 7.01, in the event
that Allied Waste and the Borrower fail to comply with the requirements of
Section 6.14 in
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respect of or as determined with reference to any Rolling Period, until the
expiration of the 10th Business Day subsequent to the date the certificate
calculating the Leverage Ratio is required to be delivered pursuant to Section
5.04(c), Allied Waste shall have the right to issue Permitted Cure Securities
for cash or otherwise receive cash contributions to the capital of Allied Waste,
and, in each case, to apply such cash in accordance with Section 2.11(c)
(collectively, the "Cure Right"), and upon such application by the Borrower of
such cash (the "Cure Amount") pursuant to the exercise by Allied Waste of such
Cure Right the Leverage Ratio shall be recalculated giving effect to the
following pro forma adjustments;
(i) Total Indebtedness shall be decreased in respect of the last
fiscal quarter of such Rolling Period, solely for the purpose of measuring
the Leverage Ratio and not for any other purpose under this Agreement, by
an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculation, Allied
Waste and Borrower shall then be in compliance with the requirements of
Section 6.14, Allied Waste and the Borrower shall be deemed to have
satisfied the requirements of Section 6.14 as of the relevant date of
determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of
Section 6.14 which had occurred shall be deemed cured for all purposes of
the Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, (a) in no event shall Allied Waste be entitled to
exercise the Cure Right in more than three consecutive fiscal quarters, (b) in
any eight fiscal quarter period, there must be a period of at least four
consecutive fiscal quarters during which Allied Waste has not exercised its Cure
Right and (c) each Cure Amount shall be as close as is commercially feasible to
the amount required to cure the applicable failure to comply with Section 6.14.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and each Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. For
purposes of this Article VIII, all references to the Administrative Agent are
deemed to include the Collateral Agent and the Collateral Trustee.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business
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with Allied Waste, the Borrower or any Subsidiary or any Affiliate of any of the
foregoing as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) and (c) except as expressly
set forth in the Loan Documents, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Allied Waste, the Borrower or any of the Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall not be deemed to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by Allied
Waste, the Borrower or a Lender, as applicable, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related
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Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Allied Waste or the Borrower, to it at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-- ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Office of the
Treasurer,
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Attention of Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇, Esq. (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(e) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire (each such
Administrative Questionnaire having been provided to Allied Waste).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, any Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan,
the funding of a Tranche A Credit-Linked Deposit or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent,
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any Lender or any Issuing Bank may have had notice or knowledge of such Default
at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Allied Waste, the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender directly affected thereby;
(iii) extend the final maturity of any Loan or LC Disbursement or
extend the date on which the Tranche A Credit-Linked Deposits are required to be
returned in full to the Tranche A Lenders, without the prior written consent of
each Lender directly affected thereby;
(iv) extend the scheduled amortization (other than final maturity)
of any Loan or the scheduled date for payment of interest and fees without the
prior written consent of Lenders holding Loans representing at least 80% of the
aggregate principal amount of the then outstanding Loans directly affected
thereby;
(v) accelerate any scheduled amortization (including final maturity)
of any Loan, other than as required in connection with any prepayment of any
Loan permitted or required hereunder, without the prior written consent of
Lenders holding Loans representing at least 80% of the aggregate principal
amount of the then outstanding Loans directly affected thereby;
(vi) change Section 2.18(b) or (c) in a manner that would alter the
pro rata sharing of payments among Lenders required thereby, without the written
consent of each Lender;
(vii) change any of the provisions of this Section that affect the
Lenders or the definition of "Required Lenders" or any other provision of any
Loan Document specifying the number or percentage of Lenders (or Lenders of any
Class or Tranche A Lenders) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be);
(viii) release Allied Waste or any Material Loan Party from its
Guarantee under the applicable Guarantee Agreement (except as expressly provided
in such Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the
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written consent of each Lender; provided further, that each such release or
limitation (A) with respect to any Material Loan Party holding any ownership or
other interest in any landfill owned or leased by Allied Waste or any Subsidiary
and (B) which the Collateral Agent reasonably determines would not adversely
affect the Lenders in any material respect, shall only require the consent of
the Required Lenders;
(ix) release all or substantially all of the Collateral from the
Liens of the Security Documents, without the written consent of each Lender;
provided further that:
(A) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Banks or the
Swingline Lenders without the prior written consent of the Administrative
Agent, the Issuing Banks or the Swingline Lenders, as the case may be; and
(B) no such agreement shall effect any waiver, amendment or
modification that by its terms adversely affects the rights in respect of
payments or collateral of Lenders participating in any Class of Loans or
Tranche A Letters of Credit differently from those of Lenders
participating in other Classes of Loans or Tranche A Letters of Credit,
without the consent of a majority in interest of the Lenders participating
in the adversely affected Class, or change the relative rights in respect
of payments or collateral of the Lenders participating in different
Classes of Loans or Tranche A Letters of Credit without the consent of a
majority in interest of Lenders participating in each affected Class of
Loans or Tranche A Letters of Credit;
and provided further, that the Administrative Agent, on the one hand, and, in
the case of this Agreement, Allied Waste and the Borrower or, in the case of any
other Loan Document, the Loan Parties thereto, on the other hand, may, without
the consent of any Lender amend or modify this Agreement or any other Loan
Document, as the case may be:
(A) to cure any typographical error, so long as such amendment or
modification does not adversely affect the rights of any Lender, any
Issuing Bank or the Administrative Agent;
(B) to effect the assumption by a successor Person of all
obligations of the Borrower or any other Loan Party under this Agreement
and the other Loan Documents in connection with any transaction complying
with Section 6.06(a);
(C) to correct and amplify the description of any property subject
or intended to be subject to the Lien of the applicable Security Document;
and
(D) to add property to the Collateral as permitted or required by
the applicable Security Document.
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Notwithstanding the foregoing, (i) each of the Incremental Facility Amendment,
the Funded LC Facility Amendment and the Refinancing Facility Amendment shall
become effective in the manner set forth in Sections 2.21 and 2.22,
respectively, and (ii) each of the Administrative Agent, the Collateral Agent
and the Collateral Trustee, as applicable, shall be permitted to amend (and, at
the request of the Borrower, shall so amend) the Shared Collateral Security
Agreement or the Shared Collateral Pledge Agreement in a manner reasonably
satisfactory to the Administrative Agent, the Collateral Agent or the Collateral
Trustee, as the case may be, without the consent of any other Lender in order to
add the holders of (and the agents with respect to) any Refinancing Indebtedness
issued to refinance Indebtedness secured on the Restatement Effective Date by
the Shared Collateral or Qualifying Senior Secured Indebtedness as secured
parties thereunder.
Except as otherwise provided herein or in the Security Documents,
the Administrative Agent shall not consent to terminate any Guarantee, release
any collateral or terminate any Lien under any Security Document unless such
release or termination shall be consented to in writing by the Required Lenders;
provided that: (i) subject to the immediately preceding clause (viii), the
consent of all Lenders shall be required to release all or substantially all of
the Collateral or release all or substantially all guarantors under the
Guarantee Agreements from the Guarantees, except upon the termination of all
Liens and all Guarantees created by the Security Documents in accordance with
the terms thereof; (ii) no such consent shall be required to release any Lien
covering property subject to an Asset Sale permitted hereunder and, in the case
of an Asset Sale involving the sale of a Subsidiary Loan Party permitted
hereunder, the Guarantee of such Subsidiary Loan Party, and, upon such a
permitted Asset Sale, such property and/or such Subsidiary Loan Party shall be
transferred free and clear of the Lien of the Security Documents and/or
Guarantee, if applicable, without any action on the part of any party (and each
of the Administrative Agent, the Collateral Agent and the Collateral Trustee, as
applicable, is hereby authorized to execute such releases and other documents,
and to take such other action, as the Borrower may reasonably request to give
effect thereto); and (iii) no such consent shall be required to release any
Guarantee of any Restricted Subsidiary in connection with such Restricted
Subsidiary's conversion into an Unrestricted Subsidiary pursuant to, and in
accordance with, Section 6.16 (and each of the Administrative Agent, the
Collateral Agent and the Collateral Trustee, as applicable, is hereby authorized
to execute such releases and other documents, and to take such other action, as
the Borrower may reasonably request in order to give effect to such release).
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates and the other Initial Lenders, including
but not limited to the reasonable expenses incurred in connection with due
diligence and the reasonable fees, charges and disbursements of a single New
York counsel for the Administrative Agent and of a single local counsel for the
Administrative Agent in each applicable jurisdiction, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration (to the extent such administration requires the services of an
outside counsel or consultant) of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable
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out-of-pocket expenses incurred by any Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of a single transactional counsel and a single special
counsel for the Administrative Agent, the Issuing Banks and the Lenders
(collectively), in connection with the enforcement or protection of its rights
in connection with the Loan Documents, including its rights under this Section,
or in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, any
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
entitled to reimbursement pursuant to Section 9.03(a) for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated thereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any Property or
Former Property, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing
(including any such claim, litigation, investigation or proceeding brought by or
on behalf of Allied Waste or any of its Related Parties), whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of, or breach of this Agreement, any Loan Document or any other
agreement or instrument contemplated thereby by, such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, any Issuing Bank, the Collateral
Agent (with respect to its activities for the benefit of the Lenders) or any
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, and each Lender agrees to
pay to such Issuing Bank, the Collateral Agent or any Swingline Lender, as the
case may be, such Lender's pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was
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incurred by or asserted against the Administrative Agent, such Issuing Bank or
any Swingline Lender in its capacity as such. For purposes hereof, a Lender's
"pro rata share" shall be determined based upon its share of the sum of the
total Revolving Exposures, Tranche A LC Exposures, outstanding Term Loans and
unused Commitments and unfunded Tranche A Credit-Linked Deposits at the time.
(d) To the extent permitted by applicable law, neither Allied Waste
nor the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than ten days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) Except as expressly set
forth in Section 9.14(a), the provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), except that, (i) other than in connection with a
merger or consolidation permitted by Section 6.06, the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans or Tranche A Credit-Linked Deposits at the time owing
to it) with the prior written consent (such consent not to be unreasonably
withheld) of:
(A) the Borrower; provided that no consent of the Borrower shall be
required (1) for an assignment of Term Loans or Tranche A Credit-Linked Deposits
to a Lender, an Affiliate of a Lender or an Approved Fund or (2) if an Event of
Default under clause (i), (ii), (viii) or (ix) of Section 7.01 has occurred and
is continuing;
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of Term Loans or
Tranche A Credit-Linked Deposits to a Lender, an Affiliate of a Lender or an
Approved Fund; and
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(C) with respect to any assignment of Revolving Commitments or
Revolving Loans, each Principal Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund of any Lender, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 or, if smaller, the
entire remaining amount of the assigning Lender's Commitment and outstanding
Loans or Tranche A Credit-Linked Deposits unless each of the Borrower and the
Administrative Agent shall otherwise consent; provided (1) that no such consent
of the Borrower shall be required if an Event of Default under clause (i), (ii),
(viii) or (ix) of Section 7.01 has occurred and is continuing and (2) in the
event of concurrent assignments to two or more assignees that are Affiliates of
one another, or to two or more Approved Funds managed by the same investment
advisor or by affiliated investment advisors, all such concurrent assignments
shall be aggregated in determining compliance with this subsection;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement; provided that this clause shall not be construed to prohibit the
assignment of a proportionate part of all of the assigning Lender's rights and
obligations in respect of one Class of Commitments, Loans or Tranche A
Credit-Linked Deposits;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500; provided that in the event of concurrent
assignments to two or more assignees that are Affiliates of one another, or to
two or more Approved Funds managed by the same investment advisor or by
affiliated investment advisors, only one such fee shall be payable;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and
(E) in the case of an assignment by a Lender to a CLO managed by
such Lender or by an Affiliate of such Lender, unless such assignment (or an
assignment to a CLO managed by the same manager or an Affiliate of such manager)
shall have been approved by the Borrower (the Borrower hereby agreeing that such
approval, if requested, will not be unreasonably withheld or delayed), the
assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement, except that the
Assignment and Acceptance between such Lender and such CLO may provide that such
Lender will not, without the consent of such CLO, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such CLO.
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(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section. Without the consent of the Borrower (which
consent shall not be unreasonably withheld) and the Administrative Agent, the
Tranche A Credit-Linked Deposit of any Tranche A Lender shall not be released in
connection with any assignment by such Tranche A Lender, but shall instead be
purchased by the relevant assignee and continue to be held for application (to
the extent not already applied) in accordance with Section 2.05 to satisfy such
assignee's obligations in respect of Tranche A LC Disbursements.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent,
the Issuing Banks and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, any Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(vi) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment and the outstanding
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balances of its Loans and Tranche A Credit-Linked Deposits and participations in
Tranche A Letters of Credit, in each case without giving effect to assignments
thereof that have not become effective, are as set forth in such Assignment and
Acceptance; (ii) except as set forth in clause (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the foregoing, or
the financial condition of the Loan Parties or the performance or observance by
the Loan Parties of any of their obligations under this Agreement or under any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (iii) each of the assignee and the assignor represents and
warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of any amendments or consents entered into prior
to the date of such Assignment and Acceptance and copies of the most recent
financial statements delivered pursuant to Section 5.04 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agents to take such action as agents on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to them by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations that by the terms of
this Agreement are required to be performed by it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Banks or the Swingline Lenders, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans and Tranche A
Credit-Linked Deposits and participations in Tranche A Letters of Credit owing
to it); provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) Allied Waste, the
Borrower, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of any Loan
Document; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by
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assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant (and, to the extent the Participant receives such payment, the
applicable Lender shall not be entitled to such amount), unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) and 2.17(f) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section 9.04 shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(e) In the event that Standard & Poor's Ratings Group or ▇▇▇▇▇'▇
Investors Service, Inc. shall downgrade the long-term certificate of deposit
ratings or long-term senior unsecured debt ratings of any Lender (or the parent
company thereof), and the resulting ratings shall be BBB+ or Baa1 or lower, then
each of the Issuing Banks shall have the right, but not the obligation, at its
own expense, upon notice to such Lender, the Borrower and the Administrative
Agent, to replace (or to request Allied Waste and the Borrower, at the sole
expense of such Issuing Bank, to use their reasonable efforts to replace) such
Lender with respect to such Lender's Revolving Commitment with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Commitment to such assignee; provided, however, that (i) no such assignment
shall conflict with any law, rule, regulation or order of any Governmental
Authority and (ii) such assignee shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans and LC Disbursements of such Lender
hereunder and all other amounts accrued for such Lender's account or owed to it
hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, in
the event that (i) the Borrower has requested an amendment, waiver or consent of
the type set forth in clause (i), (ii), (iii), (vi), (vii), (viii) or (ix) of
the first proviso of the first sentence of Section 9.02(b), (ii) such amendment,
waiver or consent has been approved by the
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Required Lenders and (iii) no Event of Default shall have occurred and be
continuing under clause (i), (ii), (viii) or (ix) of Section 7.01, the Borrower
may, at any time and from time to time after the Restatement Effective Date, at
its sole expense, require any Lender that does not approve such proposed
amendment, waiver or consent (a "Non-Consenting Lender") to assign and delegate,
at par and without recourse, all of such Non-Consenting Lender's outstanding
Loans, unused Commitments, unreimbursed Tranche A Credit-Linked Deposits and all
other interests, rights and obligations under this Agreement (or, at the option
of the Borrower if the Non-Consenting Lender's consent is required with respect
to only one Class of Loans (or Commitments) or Tranche A Credit-Linked Deposits,
to replace only the Class of Loans or Commitments of such Non-Consenting Lender
that gave rise to the need of such Non-Consenting Lender's consent) to another
Lender (other than a CLO managed by such Non-Consenting Lender or an Affiliate
of such Non-Consenting Lender) or a financial institution selected by the
Borrower and approved by the Administrative Agent (and if a Revolving Commitment
is being assigned, each Issuing Bank and Swingline Lender), which approval shall
not be unreasonably withheld; provided, however, that, prior to or concurrently
with any such assignment becoming effective hereunder, (i) the Borrower shall
have provided written notice to the Non-Consenting Lender and the Administrative
Agent of its intention to effect an assignment pursuant to this Section 9.04(f),
(ii) such assignee shall have agreed to consent to such proposed amendment,
waiver or consent upon becoming a Lender hereunder, (iii) the Administrative
Agent shall acknowledge that such proposed amendment, waiver or consent shall
become effective upon such assignment and approval of such proposed amendment,
waiver or consent by the assignee, (iv) such assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent a duly executed Administrative
Questionnaire, (v) such assignee and the Non-Consenting Lender shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 (it being understood and agreed that
the Borrower may execute and deliver any such Assignment and Acceptance on
behalf of the Non-Consenting Lender) and (vi) such Non-Consenting Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts. In the
event that the Non-Consenting Lender is a Revolving Lender, the Borrower may not
compel the assignment of such Lender's outstanding Revolving Loans and unused
Revolving Commitments to any Term Lender or Tranche A Lender, unless such Term
Lender or Tranche A Lender is also a Revolving Lender. The terms and provisions
of clauses (iii), (iv) and (v) of Section 9.04(b) shall apply to any assignment
effected pursuant to this Section 9.04(f). A Non-Consenting Lender shall not be
required to make any such assignment and delegation pursuant to this Section
9.04(f) if, prior thereto, as a result of a waiver by such Non-Consenting Lender
or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other
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Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, any Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the return of the Tranche A Credit-Linked Deposits, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, the commitment letters and fee letters heretofore
entered into with the Initial Lenders relating to the facilities contemplated by
this Agreement and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof; provided that the Borrower's obligations under such commitment letters
shall terminate and be superseded by the provisions of the Loan Documents on the
Restatement Effective Date to the extent specifically set forth in such
commitment letters. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time
141
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Allied Waste and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Allied Waste, the Borrower or their
respective properties in the courts of any jurisdiction.
(c) Each of Allied Waste and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
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OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) to any direct or
indirect contractual counterparty to an Interest Rate Protection Agreement or
such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 9.12), (h) to
the National Association of Insurance Commissioners or any similar organization,
(i) with the consent of the Borrower or (h) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than Allied Waste or the
Borrower or an Affiliate thereof. For the purposes of this Section,
"Information" means all information received from Allied Waste or the Borrower
relating to Allied Waste or the Borrower or its business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by Allied Waste or the
Borrower; provided that, in the case of information received from Allied Waste
or the Borrower after the Restatement Effective Date, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
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SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Securitization Vehicles. (a) Each Lender, the
Administrative Agent, the Collateral Agent and the Collateral Trustee agrees
that, prior to the date that is one year and one day after the payment in full
of all the obligations in respect of any Third Party Securities, (i) the
Collateral Agent and other Secured Parties shall not be entitled, whether before
or after the occurrence of any Event of Default, to (A) institute against, or
join any other Person in instituting against, any Securitization Vehicle any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under the laws of the United States or any State thereof, (B) transfer and
register the capital stock of any Securitization Vehicle or any other instrument
evidencing any Seller's Retained Interest in the name of a Secured Party or any
designee or nominee of a Secured Party, (C) foreclose such security interest
regardless of the bankruptcy or insolvency of any Loan Party, (D) exercise any
voting rights granted or appurtenant to such capital stock of any Securitization
Vehicle or any other instrument evidencing any Seller's Retained Interest or (E)
enforce any right that the holder of any such capital stock of any
Securitization Vehicle or any other instrument evidencing any Seller's Retained
Interest might otherwise have to liquidate, consolidate, combine, collapse or
disregard the entity status of such Securitization Vehicle and (ii) the
Collateral Agent and other Secured Parties hereby waive and release any right to
require (A) that any Securitization Vehicle be in any manner merged, combined,
collapsed or consolidated with or into any Loan Party, including by way of
substantive consolidation in a bankruptcy case or (B) that the status of any
Securitization Vehicle as a separate entity be in any respect disregarded;
provided, however, that the provisions of this Section 9.14 shall cease to be of
any force or effect when the Obligations have been paid in full and the
Revolving Commitments have been terminated or expired; and provided further,
that the provisions hereof will not apply to a Lender, the Administrative Agent,
the Collateral Agent or the Collateral Trustee in its capacity as a holder of
Third Party Securities; and provided, further, however, that the provisions of
this Section 9.14 shall not limit any of the rights of any Lender or other
Secured Party, or the ability of such Person to exercise any such rights, under
any agreement evidencing any Securitization or under any Third Party Security.
Each Lender, the Administrative Agent and the Collateral Agent agree and
acknowledge that the agent acting on behalf of the holders of Third Party
Securities is an express third party beneficiary with respect to this Section
9.14(a) (and only this
144
Section 9.14(a)) and such agent shall have the right to enforce compliance by
the Secured Parties with this Section.
(b) Upon the transfer or purported transfer by the Borrower or any
Restricted Subsidiary of Securitization Assets to a Securitization Vehicle in a
Securitization permitted by Sections 6.05 and 6.06, the Liens with respect to
such Securitization Assets under the Security Documents shall automatically be
released (and each of the Administrative Agent and the Collateral Agent, as
applicable, is hereby authorized to execute and enter into any such releases and
other documents as the Borrower may reasonably request in order to give effect
thereto).
SECTION 9.15. Patriot Act. Each Lender hereby notifies Allied Waste
and the Borrower that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies Allied Waste
and the Borrower, which information includes the name and address of each of
Allied Waste and the Borrower and other information that will allow such Lender
to identify Allied Waste and the Borrower in accordance with the USA Patriot
Act. Each of Allied Waste and the Borrower shall promptly, following a request
by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender reasonably requests in
order to comply with its ongoing obligations under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
Patriot Act.
145
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ALLIED WASTE INDUSTRIES, INC.,
by
__________________________________
Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
__________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., individually and
as administrative agent, collateral agent and
collateral trustee,
by
__________________________________
Name:
Title:
CITICORP NORTH AMERICA, INC., individually
and as syndication agent,
by
__________________________________
Name:
Title:
UBS Securities LLC,
individually and as co-documentation agent,
by
__________________________________
Name:
Title:
146
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH,
individually and as co-documentation agent,
by
__________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as co-documentation agent,
by
__________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually and as co-documentation agent,
by
__________________________________
Name:
Title:
FLEET NATIONAL BANK,
individually and as co-documentation agent,
by
__________________________________
Name:
Title:
SIGNATURE PAGE TO THE
AMENDED AND RESTATED
ALLIED WASTE CREDIT AGREEMENT
Term Lender
Name of Institution: ________________________
by
_____________________
Name:
Title:
by
_____________________
Name:
Title:
Tranche A Lender
Name of Institution: ________________________
by
_____________________
Name:
Title:
by
_____________________
Name:
Title:
Revolving Lender
Name of Institution: ________________________
by
_____________________
Name:
Title:
by
_____________________
Name:
Title:
SIGNATURE PAGE TO THE
AMENDED AND RESTATED
ALLIED WASTE CREDIT AGREEMENT
Commitments(1)
Term Loan Commitment Amount: $_______________
Tranche A Credit-Linked Deposit Amount: $____
Revolving Commitment Amount: $_______________
----------
(1) All commitment amounts are subject to actual allocations to be communicated
to the Lenders.
SIGNATURE PAGE TO THE
AMENDED AND RESTATED
ALLIED WASTE CREDIT AGREEMENT
Lender Consent
Name of Institution: ________________________
by
_____________________
Name:
Title:
by
_____________________
Name:
Title: