EXHIBIT 10.2
REVOLVING CREDIT AGREEMENT
DATED AS OF JUNE 27, 2002
by and among
WASTE MANAGEMENT, INC.
(the "Borrower")
and
WASTE MANAGEMENT HOLDINGS, INC.
(the "Guarantor")
and
FLEET NATIONAL BANK ("Fleet")
BANK OF AMERICA, N.A. ("BOA")
JPMORGAN CHASE BANK ("JPMCB")
DEUTSCHE BANK AG NEW YORK BRANCH ("Deutsche")
CITIBANK, N.A. ("Citibank")
AND THE OTHER FINANCIAL INSTITUTIONS WHICH BECOME
A PARTY TO THIS AGREEMENT
(collectively, the "Banks")
and
FLEET, AS ADMINISTRATIVE AGENT (the "Administrative Agent")
and
DEUTSCHE BANK SECURITIES INC. AND CITIBANK, AS CO-DOCUMENTATION AGENTS
(the "Co-Documentation Agents")
and
JPMCB AND BOA, AS CO-SYNDICATION AGENTS (the "Co-Syndication Agents")
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. AND BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
(the "Joint Lead Arrangers and Joint Book Managers")
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION..................................................1
Section 1.1. Definitions...................................................................1
Section 1.2. Rules of Interpretation.......................................................16
Section 1.3. Classification of Loans and Borrowings........................................17
SECTION 2. THE LOAN FACILITIES......................................................................17
Section 2.1. Commitment to Lend............................................................17
Section 2.2. Facility Fee..................................................................17
Section 2.3. Reduction and Increase of Total Commitment....................................18
Section 2.3.1. Reduction of Total Commitment......................................18
Section 2.3.2. Increase of Total Commitment.......................................18
Section 2.4. Repayment of Loans; Evidence of Debt..........................................19
Section 2.5. Interest on Loans.............................................................19
Section 2.6. Requests for Syndicated Loans.................................................20
Section 2.7. Election of Eurodollar Rate; Notice of Election; Interest Periods; Minimum
Amounts.....................................................................................20
Section 2.8. Funds for Syndicated Loans....................................................22
Section 2.9. Maturity of the Loans and Reimbursement Obligations...........................22
Section 2.10. Optional Prepayments or Repayments of Loans..................................22
Section 2.11. Swing Line Loans; Settlements................................................22
SECTION 3. LETTERS OF CREDIT........................................................................24
Section 3.1. Letter of Credit Commitments..................................................24
Section 3.2. Reimbursement Obligation of the Borrower......................................25
Section 3.3. Obligations Absolute..........................................................25
Section 3.4. Reliance by the Issuing Banks.................................................26
Section 3.5. Notice Regarding Letters of Credit............................................26
Section 3.6. Letter of Credit Fee..........................................................26
SECTION 4. COMPETITIVE BID LOANS....................................................................26
Section 4.1. The Competitive Bid Option....................................................26
Section 4.2. Competitive Bid Loan Accounts; Competitive Bid Loans..........................26
Section 4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes..........27
Section 4.4. Alternative Manner of Procedure...............................................28
Section 4.5. Submission and Contents of Competitive Bid Quotes.............................28
Section 4.6. Notice to Borrower............................................................29
Section 4.7. Acceptance and Notice by Borrower and Administrative Agent....................30
Section 4.8. Allocation by Administrative Agent............................................30
Section 4.9. Funding of Competitive Bid Loans..............................................30
Section 4.10. Funding Losses...............................................................31
Section 4.11. Repayment of Competitive Bid Loans; Interest.................................31
SECTION 5. Provisions Relating to All Loans and Letters of Credit...................................31
Section 5.1. Payments......................................................................31
Section 5.2. Mandatory Repayments of the Loans.............................................33
Section 5.3. Computations..................................................................34
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Section 5.4. Illegality; Inability to Determine Eurodollar Rate............................34
Section 5.5. Additional Costs, Etc. .......................................................34
Section 5.6. Capital Adequacy..............................................................35
Section 5.7. Certificate...................................................................36
Section 5.8. Eurodollar and Competitive Bid Indemnity......................................36
Section 5.9. Interest on Overdue Amounts...................................................37
Section 5.10. Interest Limitation..........................................................37
Section 5.11. Reasonable Efforts to Mitigate...............................................37
Section 5.12. Replacement of Banks.........................................................37
Section 5.13. Advances by Administrative Agent.............................................38
SECTION 6. REPRESENTATIONS AND WARRANTIES...........................................................39
Section 6.1. Corporate Authority...........................................................39
Section 6.2. Governmental and Other Approvals..............................................39
Section 6.3. Title to Properties; Leases...................................................39
Section 6.4. Financial Statements; Solvency................................................40
Section 6.5. No Material Changes, Etc. ....................................................40
Section 6.6. Franchises, Patents, Copyrights, Etc. ........................................40
Section 6.7. Litigation....................................................................41
Section 6.8. No Materially Adverse Contracts, Etc. ........................................41
Section 6.9. Compliance With Other Instruments, Laws, Etc. ................................41
Section 6.10. Tax Status...................................................................41
Section 6.11. No Event of Default..........................................................41
Section 6.12. Holding Company and Investment Company Acts..................................41
Section 6.13. Absence of Financing Statements, Etc. .......................................42
Section 6.14. Employee Benefit Plans.......................................................42
Section 6.14.1. In General........................................................42
Section 6.14.2. Terminability of Welfare Plans....................................42
Section 6.14.3. Guaranteed Pension Plans..........................................42
Section 6.14.4. Multiemployer Plans...............................................43
Section 6.15. Environmental Compliance.....................................................43
Section 6.16. Disclosure...................................................................44
Section 6.17. Permits and Governmental Authority...........................................44
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER....................................................44
Section 7.1. Punctual Payment..............................................................45
Section 7.2. Maintenance of U.S. Office....................................................45
Section 7.3. Records and Accounts..........................................................45
Section 7.4. Financial Statements, Certificates and Information............................45
Section 7.5. Existence and Conduct of Business.............................................46
Section 7.6. Maintenance of Properties.....................................................46
Section 7.7. Insurance.....................................................................47
Section 7.8. Taxes.........................................................................47
Section 7.9. Inspection of Properties, Books and Contracts.................................47
Section 7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of Material
Licenses and Permits........................................................................47
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Section 7.11. Environmental Indemnification................................................48
Section 7.12. Further Assurances...........................................................48
Section 7.13. Notice of Potential Claims or Litigation.....................................48
Section 7.14. Notice of Certain Events Concerning Insurance and Environmental Claims.......49
Section 7.15. Notice of Default............................................................49
Section 7.16. Use of Proceeds..............................................................50
Section 7.17. Certain Transactions.........................................................50
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...............................................50
Section 8.1. Restrictions on Indebtedness..................................................50
Section 8.2. Restrictions on Liens.........................................................51
Section 8.3. Restrictions on Investments...................................................52
Section 8.4. Mergers, Consolidations, Sales................................................52
Section 8.5. Restricted Distributions and Redemptions......................................53
Section 8.6. Employee Benefit Plans........................................................53
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER......................................................54
Section 9.1. Interest Coverage Ratio.......................................................54
Section 9.2. Total Debt to EBITDA..........................................................54
Section 9.3. Minimum Net Worth.............................................................54
SECTION 10. CONDITIONS PRECEDENT....................................................................54
Section 10.1. Conditions To Effectiveness..................................................54
Section 10.1.1. Corporate Action..................................................55
Section 10.1.2. Loan Documents, Etc...............................................55
Section 10.1.3. Certified Copies of Charter Documents.............................55
Section 10.1.4. Incumbency Certificate............................................55
Section 10.1.5. Certificates of Insurance.........................................55
Section 10.1.6. Opinion of Counsel................................................55
Section 10.1.7. Satisfactory Financial Condition..................................55
Section 10.1.8. Payment of Closing Fees...........................................55
Section 10.1.9. Termination of the 364 Day Loan Agreement.........................55
Section 10.1.10. Closing Certificate..............................................56
SECTION 11. CONDITIONS TO ALL LOANS.................................................................56
Section 11.1. Representations True.........................................................56
Section 11.2. Performance; No Event of Default.............................................56
Section 11.3. No Legal Impediment..........................................................56
Section 11.4. Governmental Regulation......................................................56
Section 11.5. Proceedings and Documents....................................................56
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT..............................57
Section 12.1. Events of Default and Acceleration...........................................57
Section 12.2. Termination of Commitments...................................................59
Section 12.3. Remedies.....................................................................59
SECTION 13. SETOFF..................................................................................60
SECTION 14. EXPENSES................................................................................60
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SECTION 15. THE AGENTS..............................................................................60
Section 15.1. Appointment, Powers and Immunities...........................................60
Section 15.2. Actions By Administrative Agent..............................................61
Section 15.3. Indemnification..............................................................61
Section 15.4. Reimbursement................................................................62
Section 15.5. Delinquent Banks.............................................................62
Section 15.6. Documents....................................................................62
Section 15.7. Non-Reliance on Administrative Agent and Other Banks.........................62
Section 15.8. Resignation of Administrative Agent..........................................63
Section 15.9. Action by the Banks, Consents, Amendments, Waivers, Etc......................63
SECTION 16. INDEMNIFICATION.........................................................................64
SECTION 17. WITHHOLDING TAXES.......................................................................64
SECTION 18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION...........................................66
SECTION 18.1. Confidentiality..............................................................66
SECTION 18.2. Prior Notification...........................................................67
SECTION 18.3. Other........................................................................67
SECTION 19. SURVIVAL OF COVENANTS, ETC..............................................................67
SECTION 20. ASSIGNMENT AND PARTICIPATION............................................................67
SECTION 21. PARTIES IN INTEREST.....................................................................68
SECTION 22. NOTICES, ETC............................................................................69
SECTION 23. MISCELLANEOUS...........................................................................69
SECTION 24. CONSENTS, ETC...........................................................................70
SECTION 25. WAIVER OF JURY TRIAL....................................................................70
SECTION 26. GOVERNING LAW; SUBMISSION TO JURISDICTION...............................................70
SECTION 27. SEVERABILITY............................................................................71
SECTION 28. GUARANTY................................................................................71
Section 28.1. Guaranty.....................................................................71
Section 28.2. Guaranty Absolute............................................................71
Section 28.3. Effectiveness; Enforcement...................................................72
Section 28.4. Waiver.......................................................................72
Section 28.5. Expenses.....................................................................73
Section 28.6. Concerning Joint and Several Liability of the Guarantor......................73
Section 28.7. Waiver.......................................................................75
Section 28.8. Subrogation; Subordination...................................................75
SECTION 29. PARI PASSU TREATMENT....................................................................75
SECTION 30. FINAL AGREEMENT.........................................................................76
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Exhibits
Exhibit A Form of Syndicated Loan Request
Exhibit B Form of Letter of Credit Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Competitive Bid Quote Request
Exhibit F Form of Invitation for Competitive Bid Quotes
Exhibit G Form of Competitive Bid Quote
Exhibit H Form of Notice of Acceptance/Rejection of
Competitive Bid Quote(s)
Exhibit I Form of Letter of Credit Application
Schedules
Schedule 1 Banks; Commitment Percentages
Schedule 1.1 Existing Liens
Schedule 6.7 Litigation
Schedule 6.15 Environmental Compliance
Schedule 8.1(d) Existing Indebtedness
REVOLVING CREDIT AGREEMENT
This
REVOLVING CREDIT AGREEMENT is made as of the 27th day of June,
2002, by and among WASTE MANAGEMENT, INC., a Delaware corporation having its
chief executive office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(the "Borrower"), WASTE MANAGEMENT HOLDINGS, INC., a wholly-owned Subsidiary of
the Borrower (the "Guarantor"), FLEET NATIONAL BANK, a national banking
association having a place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Fleet"), BANK OF AMERICA, N.A., a national banking association having a place
of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("BOA"), JPMORGAN
CHASE BANK, a national banking association having a place of business at ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("JPMCB"), DEUTSCHE BANK AG NEW YORK BRANCH,
the duly licensed New York branch of a German corporation having its principal
place of business at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Deutsche"),
CITIBANK, N.A., a national banking association having a place of business at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Citibank"), and each of the other
financial institutions party hereto (collectively, the "Banks"), and Fleet as
administrative agent (the "Administrative Agent"), ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and Banc of America Securities LLC as joint lead arrangers and joint book
managers (the "Joint Lead Arrangers and Joint Book Managers"), JPMCB and BOA as
co-syndication agents (the "Co-Syndication Agents", and together with the
Administrative Agent and the Joint Lead Arrangers and Joint Book Managers, the
"Agents"), and Deutsche Bank Securities Inc. and Citibank, as co-documentation
agents (the "Co-Documentation Agents").
WHEREAS, the Borrower has requested certain financing arrangements and
the Banks have agreed to provide such financing arrangements on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, this Agreement will take effect on the Effective Date, on the
following terms:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings
set forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Absolute Competitive Bid Loan(s). See Section 4.3(a).
Accountants. See Section 7.4(a).
Administrative Agent. See Preamble.
Affected Bank. See Section 5.12.
Agents. See Preamble.
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Agreement. This
Revolving Credit Agreement, including the Schedules and
Exhibits hereto, as from time to time amended and supplemented in accordance
with the terms hereof.
Applicable Base Rate. The applicable rate per annum of interest on the
Base Rate Loans as set forth in the Pricing Table.
Applicable Eurodollar Rate. The applicable rate per annum of interest
on the Eurodollar Loans shall be as set forth in the Pricing Table.
Applicable Facility Rate. The applicable rate per annum with respect to
the Facility Fee shall be as set forth in the Pricing Table.
Applicable L/C Rate. The applicable rate per annum on the Maximum
Drawing Amount shall be as set forth in the Pricing Table.
Applicable Requirements. See Section 7.10.
Applicable Swing Line Rate. The annual rate of interest agreed upon
from time to time by the Administrative Agent and the Borrower with respect to
Swing Line Loans.
Assignment and Acceptance. See Section 20.
Balance Sheet Date. December 31, 2001.
Banks. See Preamble.
Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by the Administrative Agent at its Loan Office as
its "prime rate," such rate being a reference rate and not necessarily
representing the lowest or best rate being charged to any customer by the
Administrative Agent, or (b) one-half of one percent (1/2%) above the Overnight
Federal Funds Effective Rate, as published by the Board of Governors of the
Federal Reserve System, as in effect from time to time. Changes in the Base Rate
resulting from any changes in the Administrative Agent's "prime rate" shall take
place immediately without notice or demand of any kind on the effective day of
such change.
Base Rate Loans. Syndicated Loans bearing interest calculated by
reference to the Base Rate.
BOA. See Preamble.
Borrower. See Preamble.
Borrowing. Means (a) Syndicated Loans of the same 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, (b) a Competitive Bid Loan or group of
Competitive Bids Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) Swing Line Loans.
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Business Day. Any day, other than a Saturday, Sunday or any day on
which banking institutions in Boston, Massachusetts or New York, New York are
authorized by law to close, and, when used in connection with a Eurodollar Loan,
a Eurodollar Business Day.
Capitalized Leases or Capital Leases. Leases under which the Borrower
or any of its Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with GAAP.
CERCLA. See Section 6.15(a).
Certified or certified. With respect to the financial statements of any
Person, such statements as audited by a firm of independent auditors, whose
report expresses the opinion, without qualification, that such financial
statements present fairly, in all material respects, the financial position of
such Person.
CFO or the CAO. See Section 7.4(b).
Class. When used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Syndicated Loans,
Competitive Bid Loans or Swing Line Loans.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Co-Documentation Agents. See Preamble.
Commitment. With respect to each Bank, such Bank's commitment to make
Syndicated Loans to, and to participate in the issuance, extension and renewal
of Letters of Credit for the account of, the Borrower, determined by multiplying
such Bank's Commitment Percentage by the Total Commitment.
Commitment Percentage. With respect to each Bank, the percentage
initially set forth next to such Bank's name on Schedule 1 hereto, as the same
may be adjusted in accordance with Section 20.
Competitive Bid Loan(s). A Borrowing hereunder consisting of one or
more loans made by any of the participating Banks whose offer to make a
Competitive Bid Loan as part of such Borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 4 hereof.
Competitive Bid Loan Accounts. See Section 4.2(a).
Competitive Bid Margin. See Section 4.5(b)(iv).
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid
Loan in accordance with Section 4.5 hereof.
Competitive Bid Quote Request. See Section 4.3.
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Competitive Bid Rate. See Section 4.5(b)(v).
Compliance Certificate. See Section 7.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes, or EBIT. For any
period, the Consolidated Net Income (or Deficit) of the Borrower and its
Subsidiaries on a consolidated basis plus, without duplication, the sum of (1)
interest expense, (2) income taxes, (3) non-cash extraordinary non-recurring
writedowns or write-offs of assets, including non-cash losses on the sale of
assets outside the ordinary course of business, (4) non-recurring extraordinary
charges for settlement or judgment costs with respect to the shareholder
lawsuits and actions brought against the Borrower or the Guarantor related to,
arising or resulting from, the restatements of financial statements or results,
lowered expected earnings announcements occurring in 1998 and 1999, alleged
misrepresentations, misstatements or omissions contained in, or the adequacy of,
any disclosure documents filed with the Securities and Exchange Commission in
1998 and 1999, as further described in the Disclosure Documents (collectively,
the "Shareholder Suits"), and (5) EBIT of the businesses acquired by the
Borrower or any of its Subsidiaries (through asset purchases or otherwise) (each
an "Acquired Business") or the Subsidiaries acquired or formed since the
beginning of such period (each a "New Subsidiary") provided that (i) the
financial statements of such Acquired Businesses or New Subsidiaries have been
audited for the most recent fiscal year ended of such Acquired Businesses or New
Subsidiaries, or (ii) the Administrative Agent consents to such inclusion after
being furnished with other acceptable financial statements, and, in each case, a
Compliance Certificate and other reasonably appropriate documentation, in form
and substance reasonably satisfactory to the Administrative Agent, with respect
to the historical operating results and balance sheet of such Acquired
Businesses or New Subsidiaries (which information to the knowledge of the
officer executing such certificate is correct in all material respects) are
provided to the Administrative Agent, to the extent that each of items (1)
through (4) was deducted in determining Consolidated Net Income (or Deficit) in
the relevant period, minus non-cash extraordinary gains on the sale of assets
outside the ordinary course of business to the extent included in Consolidated
Net Income (or Deficit).
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense, and
(b) amortization expense to the extent the same would be included in the
calculation of Consolidated Net Income (or Deficit) for such period, determined
in accordance with GAAP.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries on a consolidated basis, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP.
Consolidated Net Worth. The sum of the par value of the capital stock
(excluding treasury stock), capital in excess of par or stated value of shares
of capital stock, retained earnings (minus accumulated deficit) and any other
account which, in accordance with GAAP, constitute stockholders' equity, of the
Borrower and its Subsidiaries determined
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on a consolidated basis, excluding the effect of any foreign currency
transactions computed pursuant to Financial Accounting Standards Board Statement
No. 52, as amended, supplemented or modified from time to time, or otherwise in
accordance with GAAP.
Consolidated Tangible Assets. Consolidated Total Assets less the sum
of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, customer lists, brand
names, copyrights, patents and licenses, and rights with respect to the
foregoing; plus
(b) all amounts representing any write-up in the book value of
any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
Consolidated Total Assets. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest expense required by GAAP to be paid or accrued during such
period on all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, including capitalized interest expense
for such period.
Co-Syndication Agents. See Preamble.
Defaulting Bank. See Section 5.12.
Defaults. See Section 12.1.
Deutsche. See Preamble.
Disclosure Documents. The Borrower's financial statements referred to
in Section 6.4 and filings made by the Borrower or the Guarantor with the
Securities and Exchange Commission that were publicly available prior to the
Effective Date which were provided to the Banks.
Disposal. See "Release".
Distribution. The declaration or payment of any dividend or other
return on equity on or in respect of any shares of any class of capital stock,
any partnership interests or any membership interests of any Person (other than
dividends or other such returns payable solely in shares of capital stock,
partnership interests or membership units of such Person, as the case may be);
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
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Dollars or US$ or $ or U.S. Dollars. Dollars in lawful currency of the
United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, or
any amount is paid by an Issuing Bank under a Letter of Credit.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
Effective Date. The date on which the conditions precedent set forth in
Section 10.1 hereof are satisfied.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.15(a).
EPA. See Section 6.15(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower or any of its Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event within the meaning of
Section 4043 of ERISA and the regulations promulgated thereunder with respect to
a Guaranteed Pension Plan as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Loan, the maximum rate (expressed as a decimal) at which the Administrative
Agent would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Competitive Bid Loan(s). See Section 4.3(a).
Eurodollar Lending Office. Initially, the office of each Bank set forth
in the administrative materials provided to the Administrative Agent;
thereafter, upon notice to
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the Administrative Agent, such other office of such Bank that shall be making or
maintaining Eurodollar Loans.
Eurodollar Loans. Syndicated Loans bearing interest calculated by
reference to the Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Loan, (a) the rate of interest equal to the rate determined by the
Administrative Agent at which Dollar deposits for such Interest Period are
offered based on information presented on Page 3750 of the Dow ▇▇▇▇▇ Market
Service (formerly known as the Telerate Service) (or on any successor or
substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such page of such service, as determined by the Administrative Agent from time
to time) as of 11:00 a.m. (London time) two (2) Eurodollar Business Days prior
to the first day of such Interest Period, or (b) if such rate is not shown at
such place, the rate of interest equal to (i) the rate per annum at which the
Administrative Agent's Eurodollar Lending Office is offered Dollar deposits at
approximately 10:00 a.m. (New York time) two (2) Eurodollar Business Days prior
to the beginning of such Interest Period in the interbank eurodollar market
where the eurodollar operations of such Eurodollar Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Loan of the Administrative Agent to which such Interest Period
applies, divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Events of Default. See Section 12.1.
Facility Fee. See Section 2.2.
Financial Affiliate. A subsidiary of the bank holding company
controlling any Bank, which subsidiary is engaging in any of the activities
permitted by Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
Section 1843).
Five Year Revolving Credit Facility. That certain
Revolving Credit
Agreement dated as of June 29, 2001 by and among the Borrower, the Guarantor,
BOA, JPMCB (f/k/a The Chase Manhattan Bank), Deutsche and the other banks party
thereto, and Fleet as administrative agent thereunder, ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and Banc of America Securities LLC, as joint lead arrangers and joint book
managers thereunder, BOA and JPMCB as co-syndication agents thereunder and
Deutsche and Citibank, as co-documentation agents thereunder, as amended from
time to time.
Fleet. See Preamble.
generally accepted accounting principles or GAAP. (i) When used in
Section 9, whether directly or indirectly through reference to a capitalized
term used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided
-8-
above, means principles that are (A) consistent with the principles promulgated
or adopted by the Financial Accounting Standards Board and its predecessors, as
in effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Obligations. See Section 28.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
its Subsidiaries or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantor. See Preamble.
Guaranty. Any obligation, contingent or otherwise, of a Person
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
thereof, (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
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business.
Hazardous Substances. See Section 6.15(b).
Indebtedness. Collectively, without duplication, whether classified as
Indebtedness, an Investment or otherwise on the obligor's balance sheet, (a) all
indebtedness for borrowed money, (b) all obligations for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business which either (i) are not overdue by more than ninety
(90) days, or (ii) are being disputed in good faith and for which adequate
reserves have been established in accordance with GAAP), (c) all obligations
evidenced by notes, bonds, debentures or other similar debt instruments, (d) all
obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations, liabilities and indebtedness under Capitalized Leases, (f) all
obligations, liabilities or indebtedness (contingent or otherwise) under surety,
performance bonds, or any other bonding arrangement, (g) Guaranties with respect
to all Indebtedness of others referred to in clauses (a) through (f)
-9-
above, and (h) all Indebtedness of others referred to in clauses (a) through (f)
above secured or supported by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured or supported by) any
Lien on the property or assets of the Borrower or any Subsidiary, even though
the owner of the property has not assumed or become liable, contractually or
otherwise, for the payment of such Indebtedness; provided that if a Permitted
Receivables Transaction is outstanding and is accounted for as a sale of
accounts receivable under generally accepted accounting principles, Indebtedness
shall also include the additional Indebtedness, determined on a consolidated
basis, which would have been outstanding had such Permitted Receivables
Transaction been accounted for as a borrowing.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in accordance with
this Agreement (i) for any Base Rate Loan or Swing Line Loan, the first day of
the month; (ii) for any Eurodollar Loan, 1, 2, 3, or 6 months; (iii) for any
Absolute Competitive Bid Loan, from 7 through 180 days; and (iv) for any
Eurodollar Competitive Bid Loan, 1, 2, 3, 4, 5, or 6 months; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in accordance with this Agreement or if
such period has no numerically corresponding day, on the last Business Day of
such period; provided that any Interest Period which would otherwise end on a
day which is not a Business Day shall be deemed to end on the next succeeding
Business Day; provided further that for any Interest Period for any Eurodollar
Loan or Eurodollar Competitive Bid Loan, if such next succeeding Business Day
falls in the next succeeding calendar month, such Interest Period shall be
deemed to end on the next preceding Business Day; and provided further that no
Interest Period shall extend beyond the Maturity Date.
Interim Balance Sheet Date. March 31, 2002.
Investments. All expenditures made by a Person and all liabilities
incurred (contingently or otherwise) by a Person for the acquisition of stock
(other than the stock of Subsidiaries), or Indebtedness of, or for loans,
advances, capital contributions or transfers of property to, or in respect of
any Guaranties or other commitments as described under Indebtedness, or
obligations of, any other Person, including without limitation, the funding of
any captive insurance company (other than loans, advances, capital contributions
or transfers of property to any Subsidiaries or Guaranties with respect to
Indebtedness of any Subsidiary, limited to such Person's pro rata equity
interest in such Subsidiary). In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
by a Guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e)
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there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
Issuance Fee. See Section 3.6.
Issuing Banks. The Bank(s) issuing Letters of Credit, which shall be
(a) JPMCB, BOA, Fleet, Bank One, N.A., BNP Paribas, Wachovia Bank, National
Association, Suntrust Bank, and Deutsche Bank AG New York Branch and (b) such
other Banks as agreed to by the Borrower and the Administrative Agent.
Joint Lead Arrangers and Joint Book Managers. See Preamble.
JPMCB. See Preamble.
Bank Affiliate. (a) with respect to any Bank, (i) a Person that
directly, or indirectly through one or more intermediaries, possesses, directly
or indirectly, the power to direct or cause the direction of the management or
policies of such Bank, whether through the ability to exercise voting power, by
contract or otherwise or is controlled by or is under common control with such
Bank (an "Affiliate") of such Bank or (ii) 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 Bank or an
Affiliate of such Bank and (b) with respect to any Bank 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 Bank or by an Affiliate of such investment
advisor.
Letter of Credit Applications. Letter of credit applications in the
form attached hereto as Exhibit I, unless otherwise agreed upon by the Borrower
and the Issuing Bank from time to time which are entered into pursuant to
Section 3 hereof, as such Letter of Credit Applications are amended, varied or
supplemented from time to time; provided, however, in the event of any conflict
or inconsistency between the terms of any Letter of Credit Application and this
Agreement, the terms of this Agreement shall control.
Letter of Credit Fee. See Section 3.6.
Letter of Credit Participation. See Section 3.1(b).
Letter of Credit Request. See Section 11.5.
Letters of Credit. Letters of credit issued or to be issued by the
Issuing Banks under Section 3 hereof for the account of the Borrower.
Lien. With respect to any asset, (a) any mortgage, deed of trust, lien
(statutory or otherwise), pledge, hypothecation, encumbrance, charge, security
interest, assignment, deposit arrangement or other restriction in, on or of such
asset, (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 and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
-11-
Loan Documents. This Agreement, the Letter of Credit Applications, the
Letters of Credit and any documents, instruments or agreements executed in
connection with any of the foregoing, each as amended, modified, supplemented,
or replaced from time to time.
Loan Office. The Administrative Agent's office located in Boston,
Massachusetts, or at such other location as the Administrative Agent may
designate from time to time.
Loans. Collectively, the Syndicated Loans, the Swing Line Loans and the
Competitive Bid Loans.
Majority Banks. The Banks with greater than fifty percent (50%) of the
Total Commitment; provided that in the event that the Total Commitment has been
terminated, the Majority Banks shall be the Banks holding greater than fifty
percent (50%) of the aggregate outstanding principal amount of the Obligations
on such date.
Material Adverse Effect. A material adverse effect on (a) the business,
assets, operations, or financial condition of the Borrower and the Subsidiaries
taken as a whole, (b) the ability of the Borrower or the Guarantor to perform
any of its obligations under any Loan Document to which it is a party, or (c)
the rights of, or remedies or benefits available to, the Administrative Agent or
any Bank under any Loan Document.
Material Subsidiary. Any Subsidiary which, at the time such
determination is made, has assets, revenues, or liabilities of at least
$20,000,000 or more.
Maturity Date. June 27, 2005.
Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit.
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate.
New Lending Office. See Section 5.1(d).
Non-U.S. Bank. See Section 5.1(c).
Notes. Notes issued according to Section 2.4(e).
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Administrative Agent arising or incurred
under this Agreement or any of the other Loan Documents or in respect of any of
the Loans made or Reimbursement Obligations incurred or the Letters of Credit,
or any other instrument at any time evidencing any thereof, individually or
collectively, existing on the date of this Agreement or arising thereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise.
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Overnight Federal Funds Effective Rate. The overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time, or if such rate is not published, the
average of the quotations at approximately 11:00 a.m. New York time for the day
of such transaction(s), received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Any of the following Liens:
(a) Liens for taxes not yet due or that are being contested in
compliance with Section 7.8;
(b) carriers', warehousemen's, maritime, mechanics, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business that
are being contested in good faith by appropriate proceedings and for which
adequate reserves with respect thereto have been set aside as required by GAAP;
(c) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(d) Liens to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Leases), statutory
obligations, surety and appeal bonds, suretyship, performance and landfill
closure bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) zoning restrictions, easements, rights-of-way, restrictions on use
of property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(f) the Liens on Schedule 1.1 hereto securing the obligations listed on
such Schedule and any replacement Lien securing any renewal, extension or
refunding of such obligations if the amount secured by such renewal, extension
or refunding Lien shall not exceed the amount of the outstanding obligations
secured by the Lien being replaced at the time of such renewal, extension or
refunding (plus transaction costs, including premiums and fees, related to such
renewal, extension or refunding) and if such replacement Lien shall be limited
to the substantially the same property that secured the Lien so replaced;
(g) legal or equitable encumbrances deemed to exist by reason of the
existence of any litigation or other legal proceeding or arising out of a
judgment or award with respect to which an appeal is being prosecuted in good
faith by appropriate action and with respect to which adequate reserves are
being maintained and, in the case of judgment liens, execution thereon is
stayed;
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(h) rights reserved or vested in any municipality or governmental,
statutory or public authority to control or regulate any property of the
Borrower or any Subsidiary, or to use such property in a manner that does not
materially impair the use of such property for the purposes for which it is held
by the Borrower or such Subsidiary;
(i) any obligations or duties affecting the property of the Borrower or
any of its Subsidiaries to any municipality, governmental, statutory or public
authority with respect to any franchise, grant, license or permit;
(j) Liens filed in connection with sales of receivables by any of the
Subsidiaries (other than the Guarantor) to a wholly-owned special purpose
financing Subsidiary for purposes of perfecting such sales, provided that no
third party has any rights with respect to such Liens or any assets subject
thereto;
(k) any interest or title of a lessor under any sale lease-back
transaction entered into by the Borrower or any Subsidiary conveying only the
assets so leased back to the extent the related Indebtedness is permitted under
Section 8.1 hereof;
(l) Liens created or deemed to be created under Permitted Receivables
Transactions at any time provided such Liens do not extend to any property or
assets other than the trade receivables sold pursuant to such Permitted
Receivables Transactions, interests in the goods or products (including returned
goods and products), if any, relating to the sales giving rise to such trade
receivables; any security interests or other Liens and property subject thereto
(other than on any leases or related lease payment rights or receivables between
the Borrower and any of its Subsidiaries, as lessors or sublessors) from time to
time purporting to secure the payment by the obligors of such trade receivables
(together with any financing statements signed by such obligors describing the
collateral securing such trade receivables) pursuant to such Permitted
Receivables Transactions; and
(m) Liens securing other Indebtedness permitted under Sections 8.1(d)
and (e);
provided that the aggregate amount of all Indebtedness and liabilities secured
by all Liens permitted in subsections (k), (l) and (m) shall not exceed 15% of
Consolidated Tangible Assets at any time.
Permitted Receivables Transaction. Any sale or sales of, and/or
securitization of, any accounts receivable of the Borrower and/or any of its
Subsidiaries (the "Receivables") pursuant to which (a) the Borrower and its
Subsidiaries realize aggregate net proceeds of not more than $750,000,000 at any
one time outstanding, including, without limitation, any revolving purchase(s)
of Receivables where the maximum aggregate uncollected purchase price (exclusive
of any deferred purchase price) for such Receivables at any time outstanding
does not exceed $750,000,000, and (b) which Receivables shall not be discounted
more than 25%.
Person. Any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or political
subdivision thereof.
Pricing Table:
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APPLICABLE
SENIOR PUBLIC APPLICABLE APPLICABLE APPLICABLE EURODOLLAR
LEVEL DEBT RATING FACILITY RATE L/C RATE BASE RATE RATE
----- ------------ ------------- ---------- ---------- ----------
1 Greater than or equal to 0.1000% 0.6500% Base Rate per Eurodollar Rate plus
BBB+ by Standard & Poor's or per annum per annum annum 0.6500%
greater than or equal to per annum
Baa1 by Moody's
2 BBB by Standard & Poor's or 0.1250% 0.8750% Base Rate per Eurodollar Rate plus
Baa2 by Moody's per annum per annum annum 0.8750%
per annum
3 BBB- by Standard & Poor's or 0.2000% 0.9250% Base Rate per Eurodollar Rate plus
Baa3 by Moody's per annum per annum annum 0.9250%
per annum
4 BB+ by Standard & Poor's or 0.2750% 1.2250% Base Rate per Eurodollar Rate plus
Ba1 by Moody's per annum per annum annum 1.2250%
per annum
5 Less than or equal to BB by 0.3250% 1.4250% Base Rate Eurodollar Rate plus
Standard & Poor's or less per annum per annum plus 0.2000% 1.4250%
than or equal to Ba2 by per annum per annum
Moody's
The applicable rates charged for any day shall be determined by the higher
Senior Public Debt Rating in effect as of that day, provided that if the higher
Senior Public Debt Rating is more than one level higher than the lower Senior
Public Debt Rating, the applicable rate shall be set at one level above the
lower Senior Public Debt Rating.
RCRA. See Section 6.15(a).
Real Property. All real property heretofore, now, or hereafter owned,
operated, or leased by the Borrower or any of its Subsidiaries.
Reimbursement Obligation. The Borrower's obligation to reimburse the
applicable Issuing Bank and the Banks on account of any drawing under any Letter
of Credit, all as provided in Section 3.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall
have the meaning specified in the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Sections 6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided, that in the event either CERCLA or RCRA is amended so as
to broaden the meaning of any term defined
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thereby, such broader meaning shall apply as of the effective date of such
amendment and provided further, to the extent that the laws of Canada or a
state, province, territory or other political subdivision thereof wherein the
property lies establish a meaning for "Release" or "Disposal" which is broader
than specified in either CERCLA, or RCRA, such broader meaning shall apply to
the Borrower's or any of its Subsidiaries' activities in that state, province,
territory or political subdivision.
Replacement Bank. See Section 5.12.
Replacement Notice. See Section 5.12.
Senior Public Debt Rating. The ratings of the Borrower's public
unsecured long-term senior debt, without third party credit enhancement, issued
by Moody's and Standard & Poor's.
Shareholder Suits. See the definition of "Consolidated Earnings Before
Interest and Taxes, or EBIT."
Standard & Poor's. Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the
outstanding capital stock or other interest entitled to vote generally and whose
financial results are required to be consolidated with the financial results of
the designated parent in accordance with GAAP.
Swap Contracts. All obligations in respect of interest rate, currency
or commodity exchange, forward, swap, or futures contracts or similar
transactions or arrangements entered into to protect or hedge the Borrower and
its Subsidiaries against interest rate, exchange rate or commodity price risks
or exposure, or to lower or diversify their funding costs.
Swap Obligations. The maximum amount of any termination or loss payment
required to be paid by the Borrower or any Subsidiary with respect to any Swap
Contract if such Swap Contract were, at the time of determination, to be
terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, provided that, solely with respect to Swap Contracts which are
either (a) entered into between the Borrower or any of its Subsidiaries with an
investment grade company, or (b) entered into between the Borrower or any of its
Subsidiaries with third parties whose obligations thereunder are secured, such
maximum amount of termination or loss payment shall be net of any termination or
loss payment required to be paid to the Borrower or any Subsidiary by such
counterparty (other than the Borrower or another Subsidiary) with respect to any
Swap Contract if such Swap Contract were, at the time of determination, to be
terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred.
Swing Line Loans. See Section 2.11(a).
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Swing Line Settlement. The making or receiving of payments, in
immediately available funds, by the Banks to or from the Administrative Agent in
accordance with Section 2.11 hereof to the extent necessary to cause each Bank's
actual share of the outstanding amount of the Syndicated Loans to be equal to
such Bank's Commitment Percentage of the outstanding amount of such Syndicated
Loans, in any case when, prior to such action, the actual share is not so equal.
Swing Line Settlement Amount. See Section 2.11(b).
Swing Line Settlement Date. See Section 2.11(b).
Swing Line Settling Bank. See Section 2.11(b).
Syndicated Loan Request. See Section 2.6(a).
Syndicated Loans. A Borrowing hereunder consisting of one or more loans
made by the Banks to the Borrower under the procedure described in Section
2.1(a) and Section 2.11 hereof.
Terminated Plans. The Waste Management, Inc. Pension Plan and The Waste
Management of Alameda County, Inc. Retirement Plan.
Total Commitment. Initially $620,000,000, as such amount may be
increased or reduced in accordance with the terms hereof, or, if such Total
Commitment has been terminated pursuant to Section 2.3.1 or Section 12.2 hereof,
zero.
Total Debt. The sum, without duplication, of all (1) Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis under subsections (a)
through (h) of the definition of "Indebtedness" (provided, however, that
Indebtedness (A) under subsection (f) of the definition of "Indebtedness" shall
be included in such calculation only to the extent that a surety has been called
upon to make payment on a bond, and (B) with respect to Permitted Receivables
Transactions shall not be included in such calculation), plus (2) Swap
Obligations, plus (3) non-contingent reimbursement obligations of the Borrower
and its Subsidiaries with respect to drawings under any letters of credit.
Type. When used in reference to any Loan, refers to whether the rate of
interest on such Loan is determined by reference to the Eurodollar Rate, the
Base Rate or, in the case of a Competitive Bid Loan, whether it is a Eurodollar
Competitive Bid Loan or Absolute Competitive Bid Loan.
SECTION 1.2. RULES OF INTERPRETATION.
(a) Unless otherwise noted, a reference to any document or
agreement (including this Agreement) shall include such document or
agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
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(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the
meanings assigned to them therein.
(h) Reference to a particular "Section " refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
SECTION 1.3. CLASSIFICATION OF LOANS AND BORROWINGS.
For purposes of this Agreement, Loans may be classified and
referred to by Class (e.g., a "Syndicated Loan") or by Type (e.g., a
"Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Syndicated
Loan").
SECTION 2. THE LOAN FACILITIES.
SECTION 2.1. COMMITMENT TO LEND.
(a) Subject to the terms and conditions set forth in this
Agreement, each of the Banks severally agrees to lend to the Borrower
and the Borrower may borrow, repay, and reborrow from time to time
between the Effective Date and the Maturity Date, upon notice by the
Borrower to the Administrative Agent given in accordance with this
Section 2, its Commitment Percentage of the Syndicated Loans as are
requested by the Borrower; provided that the sum of the outstanding
principal amount of the Syndicated Loans (including the Swing Line
Loans) and the Maximum Drawing Amount of outstanding Letters of Credit
shall not exceed the Total Commitment minus the aggregate amount of
Competitive Bid Loans outstanding at such time.
(b) On the date of each request for a Loan or Letter of Credit
hereunder, the Borrower shall be deemed to have made a representation
and warranty that the conditions set forth in Section 10 and Section
11, as the case may be, have been satisfied on the date of such
request. Any unpaid Reimbursement Obligation shall be a Base Rate Loan,
as set forth in Section 3.2(a).
SECTION 2.2. FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of the Banks a fee (the "Facility Fee") on
the Total Commitment equal to the Applicable Facility Rate multiplied by the
Total Commitment. The Facility Fee shall be payable for the period from and
after the Effective Date quarterly in arrears on the first
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day of each calendar quarter for the immediately preceding calendar quarter with
the first such payment commencing on October 1, 2002 and with a final payment on
the Maturity Date (or on the date of termination in full of the Total
Commitment, if earlier). The Facility Fee shall be distributed pro rata among
the Banks in accordance with each Bank's Commitment Percentage.
SECTION 2.3. REDUCTION AND INCREASE OF TOTAL COMMITMENT.
SECTION 2.3.1. REDUCTION OF TOTAL COMMITMENT.
(a) The Borrower shall have the right at any time and from
time to time upon three (3) Business Days' prior written notice to the
Administrative Agent to reduce by $25,000,000 or a greater amount or
terminate entirely, the Total Commitment, whereupon each Bank's
Commitment shall be reduced pro rata in accordance with such Bank's
Commitment Percentage of the amount specified in such notice or, as the
case may be, terminated provided that at no time may (i) the Total
Commitment be reduced to an amount less than the sum of (A) the Maximum
Drawing Amount of all Letters of Credit, and (B) all Loans then
outstanding.
(b) No reduction or termination of the Total Commitment once
made may be revoked; the portion of the Total Commitment reduced or
terminated may not be reinstated; and amounts in respect of such
reduced or terminated portion may not be reborrowed.
(c) The Administrative Agent will notify the Banks promptly
after receiving any notice delivered by the Borrower pursuant to this
Section 2.3.1 and will distribute to each Bank a revised Schedule 1 to
this Agreement.
SECTION 2.3.2. INCREASE OF TOTAL COMMITMENT. Unless a Default
or Event of Default has occurred and is continuing, the Borrower may
request, subject to the approval of the Administrative Agent, that the
Total Commitment be increased, provided that the Total Commitment shall
not, except with the consent of the Majority Banks, in any event exceed
$650,000,000 hereunder, provided, however, that (i) any Bank which is a
party to this Agreement prior to such increase shall have the first
option, and may elect, to fund its pro rata share of the increase,
thereby increasing its Commitment hereunder, but no Bank shall have any
obligation to do so, (ii) in the event that it becomes necessary to
include a new Bank to provide additional funding under this Section
2.3.2, such new Bank must be reasonably acceptable to the
Administrative Agent and the Borrower, and (iii) the Banks' Commitment
Percentages shall be correspondingly adjusted, as necessary, to reflect
any increase in the Total Commitment and Schedule 1 shall be amended to
reflect such adjustments. Any such increase in the Total Commitment
shall require, among other things, the satisfaction of such conditions
precedent as the Administrative Agent may require, including, without
limitation, the Administrative Agent's receipt of evidence of
applicable corporate authorization and other corporate documentation
from the Borrower and the legal opinion of counsel to the Borrower,
each in form and substance satisfactory to the Administrative Agent and
such Banks as are participating in such increase.
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SECTION 2.4. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the pro rata account of the Banks, the
then unpaid principal amount of the Syndicated Loans on the Maturity
Date, (ii) to the Administrative Agent for the account of the
applicable Bank, the then unpaid principal amount of such Bank's
Competitive Bid Loan on the last day of the Interest Period applicable
to such Loan; and (iii) to the Administrative Agent, for its account,
the then unpaid principal amount of each Swing Line Loan on the earlier
of the Maturity Date and the first date after such Swing Line Loan is
made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swing Line Loan is made; provided that on
each date that a Syndicated Loan or Competitive Bid Loan is made, the
Borrower shall repay all Swing Line Loans then outstanding.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Bank resulting from each Loan made by such Bank,
including the amounts of principal and interest payable and paid to
such Bank 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 Bank hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for
the account of the Banks and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section 2.4 shall be prima facie evidence
of the existence and amounts of the obligations recorded therein;
provided that the failure of any Bank 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 Bank may request that any Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Bank a promissory note payable to
the order of such Bank (or, if requested by Bank, to such Bank 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 20) 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 2.5. INTEREST ON LOANS.
(a) The outstanding principal amount of the Syndicated Loans
shall bear interest at the rate per annum equal to (i) the Applicable
Base Rate on Base Rate Loans, (ii) the Applicable Eurodollar Rate on
Eurodollar Loans and (iii) the Applicable Swing Line Rate on Swing Line
Loans.
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(b) Interest shall be payable (i) quarterly in arrears on the
first Business Day of each quarter, with the first such payment
commencing October 1, 2002, on Base Rate Loans, (ii) on the last day of
the applicable Interest Period, and if such Interest Period is longer
than three months, also on the last day of each three month period
following the commencement of such Interest Period, on Eurodollar
Loans, and (iii) on the Maturity Date for all Loans.
SECTION 2.6. REQUESTS FOR SYNDICATED LOANS.
(a) The Borrower shall give to the Administrative Agent
written notice in the form of Exhibit A hereto (or telephonic notice
confirmed in writing or a facsimile in the form of Exhibit A hereto) of
each Syndicated Loan requested hereunder (a "Syndicated Loan Request")
not later than (a) 11:00 a.m. (New York time) on the proposed Drawdown
Date of any Base Rate Loan, or (b) 11:00 a.m. (New York time) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Loan. Each such Syndicated Loan Request shall specify (A)
the principal amount of the Syndicated Loan requested, (B) the proposed
Drawdown Date of such Syndicated Loan, (C) whether such Syndicated Loan
requested is to be a Base Rate Loan or a Eurodollar Loan, and (D) the
Interest Period for such Syndicated Loan, if a Eurodollar Loan. Each
Syndicated Loan requested shall be in a minimum amount of $10,000,000.
Each such Syndicated Loan Request shall reflect the Maximum Drawing
Amount of all Letters of Credit outstanding and the amount of all Loans
outstanding (including Competitive Bid Loans and Swing Line Loans).
Syndicated Loan Requests made hereunder shall be irrevocable and
binding on the Borrower, and shall obligate the Borrower to accept the
Syndicated Loan requested from the Banks on the proposed Drawdown Date.
(b) Each of the representations and warranties made by the
Borrower to the Banks or the Administrative Agent in this Agreement or
any other Loan Document shall be true and correct in all material
respects when made and shall, for all purposes of this Agreement, be
deemed to be repeated by the Borrower on and as of the date of the
submission of a Syndicated Loan Request, Competitive Bid Quote Request,
or Letter of Credit Application and on and as of the Drawdown Date of
any Loan or the date of issuance of any Letter of Credit (except to the
extent (i) of changes resulting from transactions contemplated or
permitted by this Agreement and the other Loan Documents, (ii) of
changes occurring in the ordinary course of business that either
individually or in the aggregate do not result in a Material Adverse
Effect, or (iii) that such representations and warranties expressly
relate only to an earlier date).
(c) The Administrative Agent shall promptly notify each Bank
of each Syndicated Loan Request received by the Administrative Agent
(i) on the proposed Drawdown Date of any Base Rate Loan, or (ii) three
(3) Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Loan.
SECTION 2.7. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
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(a) At the Borrower's option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrower may (i)
elect to convert any Base Rate Loan or a portion thereof to a
Eurodollar Loan, (ii) at the time of any Syndicated Loan Request,
specify that such requested Loan shall be a Eurodollar Loan, or (iii)
upon expiration of the applicable Interest Period, elect to maintain an
existing Eurodollar Loan as such, provided that the Borrower give
notice to the Administrative Agent pursuant to Section 2.7(b) hereof.
Upon determining any Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrower and the Banks, and
each such notice to the Borrower shall be considered prima facie
correct and binding, absent manifest error.
(b) Three (3) Eurodollar Business Days prior to the making of
any Eurodollar Loan or the conversion of any Base Rate Loan to a
Eurodollar Loan, or, in the case of an outstanding Eurodollar Loan, the
expiration date of the applicable Interest Period, the Borrower shall
give written, telex or facsimile notice (or telephonic notice promptly
confirmed in a writing or a facsimile) received by the Administrative
Agent not later than 11:00 a.m. (New York time) of its election
pursuant to Section 2.7(a). Each such notice delivered to the
Administrative Agent shall specify the aggregate principal amount of
the Syndicated Loans to be borrowed or maintained as or converted to
Eurodollar Loans and the requested duration of the Interest Period that
will be applicable to such Eurodollar Loan, and shall be irrevocable
and binding upon the Borrower. If the Borrower shall fail to give the
Administrative Agent notice of its election hereunder together with all
of the other information required by this Section 2.7(b) with respect
to any Syndicated Loan, whether at the end of an Interest Period or
otherwise, such Syndicated Loan shall be deemed a Base Rate Loan. The
Administrative Agent shall promptly notify the Banks in writing (or by
telephone confirmed in writing or by facsimile) of such election.
(c) Notwithstanding anything herein to the contrary, the
Borrower may not specify an Interest Period that would extend beyond
the Maturity Date.
(d) No conversion of Loans pursuant to this Section 2.7 may
result in any Eurodollar Borrowing that is less than $5,000,000. In no
event shall the Borrower have more than ten (10) different Interest
Periods for Borrowings of Eurodollar Loans outstanding at any time.
(e) Subject to the terms and conditions of Section 5.8 hereof,
if any Affected Bank demands compensation under Section 5.5(c) or (d)
with respect to any Eurodollar Loan, the Borrower may at any time, upon
at least three (3) Business Days' prior written notice to the
applicable Administrative Agent, elect to convert such Eurodollar Loan
into a Base Rate Loan (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other
Banks). Thereafter, and until such time as the Affected Bank notifies
the Administrative Agent that the circumstances giving rise to the
demand for compensation under Section 5.5(c) or (d) no longer exist,
all requests for Eurodollar Loans from such Affected Bank shall be
deemed to be requests for Base Rate Loans. Once the Affected Bank
notifies the Administrative Agent that such circumstances no longer
exist, the Borrower may elect that the principal amount of each such
Loan converted hereunder shall again bear interest as Eurodollar
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Loans beginning on the first day of the next succeeding Interest Period
applicable to the related Eurodollar Loans of the other Banks.
SECTION 2.8. FUNDS FOR SYNDICATED LOANS. Not later than 1:00 p.m. (New
York time) on the proposed Drawdown Date of Syndicated Loans, each of the Banks
will make available to the Administrative Agent at its Loan Office, in
immediately available funds, the amount of its Commitment Percentage of the
amount of the requested Loan. Upon receipt from each Bank of such amount, and
upon receipt of the documents required by Section 10 and Section 11 and the
satisfaction of the other conditions set forth therein, the Administrative Agent
will make available to the Borrower the aggregate amount of such Syndicated
Loans made available by the Banks. The failure or refusal of any Bank to make
available to the Administrative Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested
Syndicated Loan shall not relieve any other Bank from its several obligations
hereunder to make available to the Administrative Agent the amount of such
Bank's Commitment Percentage of the requested Loan.
SECTION 2.9. MATURITY OF THE LOANS AND REIMBURSEMENT OBLIGATIONS. The
Borrower promises to pay on the Maturity Date, and there shall become absolutely
due and payable on the Maturity Date, all of the Loans and unpaid Reimbursement
Obligations outstanding on such date, together with any and all accrued and
unpaid interest thereon and any fees and other amounts owing hereunder.
SECTION 2.10. OPTIONAL PREPAYMENTS OR REPAYMENTS OF LOANS. Subject to
the terms and conditions of Section 5.8, the Borrower shall have the right, at
its election, to repay or prepay the outstanding amount of the Loans, as a whole
or in part, at any time without penalty or premium. The Borrower shall give the
Administrative Agent no later than 11:00 a.m. (New York time) (a) on the
proposed date of prepayment or repayment of Base Rate Loans, and (b) three (3)
Eurodollar Business Day prior to the proposed date of prepayment or repayment of
all other Loans, written notice (or telephonic notice confirmed in writing or by
facsimile) of any proposed prepayment or repayment pursuant to this Section
2.10, specifying the proposed date of prepayment or repayment of Loans and the
principal amount to be paid. Notwithstanding the foregoing, the Borrower may not
prepay any Competitive Bid Loans without the consent of the applicable Bank. The
Administrative Agent shall promptly notify each Bank by written notice (or
telephonic notice confirmed in writing or by facsimile) of such notice of
payment.
SECTION 2.11. SWING LINE LOANS; SETTLEMENTS.
(a) Notwithstanding the notice and minimum amount requirements
set forth in Section 2.6 but otherwise in accordance with the terms and
conditions of this Agreement, and solely for ease of administration of
the Syndicated Loans, the Administrative Agent may, but shall not be
required to, fund Base Rate Loans made in accordance with the
provisions of this Agreement ("Swing Line Loans").
At the discretion of the Administrative Agent, Swing Line
Loans may be in amounts less than $10,000,000 provided that the
outstanding amount of Swing Line Loans advanced by the Administrative
Agent hereunder shall not exceed $10,000,000 at any time. Each Bank
shall remain severally and unconditionally liable to fund its pro rata
share (based upon each Bank's Commitment Percentage)
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of such Swing Line Loans on each Swing Line Settlement Date and, in the
event the Administrative Agent chooses not to fund any Swing Line Loans
requested on any date, to fund its Commitment Percentage of the Base
Rate Loans requested, subject to satisfaction of the provisions hereof
relating to such Bank's Commitment to make the Base Rate Loans. Prior
to each Swing Line Settlement, all payments or repayments of the
principal of, and interest on, Swing Line Loans shall be credited to
the account of the Administrative Agent.
(b) The Banks shall effect Swing Line Settlements on (i) the
Business Day immediately following any day which the Administrative
Agent gives written notice to effect a Swing Line Settlement, (ii) the
Business Day immediately following the Administrative Agent's becoming
aware of the existence of any Default or Event of Default and (iii) the
Maturity Date (each such date, a "Swing Line Settlement Date"). One (1)
Business Day prior to each such Swing Line Settlement Date, the
Administrative Agent shall give telephonic notice to the Banks of (A)
the respective outstanding amount of Syndicated Loans made by each Bank
as at the close of business on the prior day, (B) the amount that any
Bank, as applicable (a "Swing Line Settling Bank"), shall pay to effect
a Swing Line Settlement (a "Swing Line Settlement Amount") and (C) the
portion (if any) of the aggregate Swing Line Settlement Amount to be
paid to each Bank. A statement of the Administrative Agent submitted to
the Banks with respect to any amounts owing hereunder shall be prima
facie evidence of the amount due and owing. Each Swing Line Settling
Bank shall, not later than 1:00 p.m. (New York time) on each Swing Line
Settlement Date, effect a wire transfer of immediately available funds
to the Administrative Agent at its Loan Office in the amount of such
Bank's Swing Line Settlement Amount. The Administrative Agent shall, as
promptly as practicable during normal business hours on each Swing Line
Settlement Date, effect a wire transfer of immediately available funds
to each Bank of the Swing Line Settlement Amount to be paid to such
Bank. All funds advanced by any Bank as a Swing Line Settling Bank
pursuant to this Section 2.11(b) shall for all purposes be treated as a
Base Rate Loan made by such Swing Line Settling Bank to the Borrower,
and all funds received by any Bank pursuant to this Section 2.11(b)
shall for all purposes be treated as repayment of amounts owed by the
Borrower with respect to Base Rate Loans made by such Bank.
(c) The Administrative Agent may (unless notified to the
contrary by any Swing Line Settling Bank by 12:00 noon (New York time)
one (1) Business Day prior to the Settlement Date) assume that each
Swing Line Settling Bank has made available (or will make available by
the time specified in Section 2.11(b)) to the Administrative Agent its
Swing Line Settlement Amount, and the Administrative Agent may (but
shall not be required to), in reliance upon such assumption, make
available to each applicable Bank its share (if any) of the aggregate
Swing Line Settlement Amount. If the Swing Line Settlement Amount of
such Swing Line Settling Bank is made available to the Administrative
Agent by such Swing Line Settling Bank on a date after such Swing Line
Settlement Date, such Swing Line Settling Bank shall pay the
Administrative Agent on demand an amount equal to the product of (i)
the average, computed for the period referred to in clause (iii) below,
of the weighted average annual interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during
each day
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included in such period times (ii) such Swing Line Settlement Amount
times (iii) a fraction, the numerator of which is the number of days
that elapse from and including such Swing Line Settlement Date to but
not including the date on which such Swing Line Settlement Amount shall
become immediately available to the Administrative Agent, and the
denominator of which is 365. Upon payment of such amount such Swing
Line Settling Bank shall be deemed to have delivered its Swing Line
Settlement Amount on the Swing Line Settlement Date and shall become
entitled to interest payable by the Borrower with respect to such Swing
Line Settling Bank's Swing Line Settlement Amount as if such share were
delivered on the Swing Line Settlement Date. If such Swing Line
Settlement Amount is not in fact made available to the Administrative
Agent by such Swing Line Settling Bank within three (3) Business Days
of such Swing Line Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower, with interest
thereon at the Applicable Base Rate.
(d) After any Swing Line Settlement Date, any payment by the
Borrower of Swing Line Loans hereunder shall be allocated among the
Banks, in amounts determined so as to provide that after such
application and the related Swing Line Settlement, the outstanding
amount of Syndicated Loans of each Bank equals, as nearly as
practicable, such Bank's Commitment Percentage of the aggregate amount
of Syndicated Loans.
SECTION 3. LETTERS OF CREDIT.
SECTION 3.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the receipt
of a Letter of Credit Application by an Issuing Bank, with a copy to
the Administrative Agent reflecting the Maximum Drawing Amount of all
Letters of Credit (including the requested Letter of Credit), such
Issuing Bank, on behalf of the Banks and in reliance upon the
representations and warranties of the Borrower contained herein and the
agreement of the Banks contained in Section 3.1(b) hereof, agrees to
issue standby Letters of Credit (including so-called "direct pay"
standby Letters of Credit) for the account of the Borrower (which may,
with such Issuing Bank's consent, incorporate automatic renewals for
periods of up to twelve (12) months), in such form as may be requested
from time to time by the Borrower and agreed to by the Issuing Bank;
provided, however, that, after giving effect to such request, the
aggregate Maximum Drawing Amount of all Letters of Credit issued at any
time shall not exceed the Total Commitment minus the aggregate
outstanding amount of the Loans and provided further, that no Letter of
Credit shall have an expiration date later than the earlier of (i)
eighteen (18) months after the date of issuance (which may incorporate
automatic renewals for periods of up to twelve (12) months), or (ii)
five (5) Business Days prior to the Maturity Date.
(b) Each Letter of Credit shall be denominated in Dollars.
Each Bank severally agrees that it shall be absolutely liable, without
regard to the occurrence of any Default or Event of Default, the
termination of the Total Commitment pursuant to Section 12.2, or any
other condition precedent whatsoever, to the extent of such Bank's
Commitment Percentage to reimburse the Issuing Bank on demand for the
amount of each draft paid by the Issuing Bank under each Letter of
Credit
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to the extent that such amount is not reimbursed by the Borrower
pursuant to Section 3.2 (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank). Each Bank agrees
that its obligation to reimburse the Issuing Bank pursuant to this
Section 3.1(b) shall not be affected in any way by any circumstance
other than the gross negligence or willful misconduct of the Issuing
Bank.
(c) Each such reimbursement payment made by a Bank to the
Issuing Bank shall be treated as the purchase by such Bank of a
participating interest in the applicable Reimbursement Obligation under
Section 3.2 in an amount equal to such payment. Each Bank shall share
in accordance with its participating interest in any interest which
accrues pursuant to Section 3.2.
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to
induce the Issuing Banks to issue, extend and renew each Letter of Credit, the
Borrower hereby agrees to reimburse or pay to each Issuing Bank, with respect to
each Letter of Credit issued, extended or renewed by such Issuing Bank hereunder
as follows:
(a) if any draft presented under any Letter of Credit is
honored by such Issuing Bank or such Issuing Bank otherwise makes
payment with respect thereto, the sum of (i) the amount paid by such
Issuing Bank under or with respect to such Letter of Credit, and (ii)
the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by such Issuing Bank in connection with any payment
made by such Issuing Bank under, or with respect to, such Letter of
Credit, provided however, if the Borrower does not reimburse such
Issuing Bank on the Drawdown Date, such amount shall, provided that no
Event of Default under Sections 12.1(g) or 12.1(h) has occurred, become
automatically a Syndicated Loan which is a Base Rate Loan advanced
hereunder in an amount equal to such sum; and
(b) upon the Maturity Date or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit shall be paid by the Borrower to the
Administrative Agent to be held as cash collateral for the applicable
Reimbursement Obligations.
SECTION 3.3. OBLIGATIONS ABSOLUTE. The Borrower's respective
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Issuing
Bank, any Bank or any beneficiary of a Letter of Credit, and the Borrower
expressly waives any such rights that it may have with respect thereto. The
Borrower further agrees with each Issuing Bank and the Banks that such Issuing
Bank and the Banks (i) shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.2 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged (unless due to the willful misconduct of
such Issuing Bank or any other Bank), or any dispute between or among the
Borrower and the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
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any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee, and (ii) shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit except to the extent of their own willful misconduct. The Borrower agrees
that any action taken or omitted by any Issuing Bank or any Bank in good faith
under or in connection with any Letter of Credit and the related drafts and
documents shall be binding upon the Borrower and shall not result in any
liability on the part of such Issuing Bank or any Bank (or their respective
affiliates) to the Borrower. Nothing herein shall constitute a waiver by the
Borrower of any of its rights against any beneficiary of a Letter of Credit.
SECTION 3.4. RELIANCE BY THE ISSUING BANKS. To the extent not
inconsistent with Section 3.3, each Issuing Bank shall be entitled to rely, and
shall be fully protected in relying, upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile, telex or teletype message, statement, order or other
document believed by such Issuing Bank in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by such Issuing Bank.
SECTION 3.5. NOTICE REGARDING LETTERS OF CREDIT. One (1) Business Day
prior to the issuance of any Letter of Credit or amendments, extensions or
terminations thereof, the applicable Issuing Bank shall notify the
Administrative Agent of the terms of such Letter of Credit, amendment, extension
or termination. On the day of any drawing under any Letter of Credit, such
Issuing Bank shall notify the Administrative Agent of such drawing under any
Letter of Credit.
SECTION 3.6. LETTER OF CREDIT FEE. The Borrower shall pay a fee (the
"Letter of Credit Fee") equal to the Applicable L/C Rate on the Maximum Drawing
Amount of the Letters of Credit to the Administrative Agent for the account of
the Banks, to be shared pro rata by the Banks in accordance with their
respective Commitment Percentages. The Letter of Credit Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the quarter
just ended, with the first such payment commencing October 1, 2002, and on the
Maturity Date. In addition, an issuing fee (the "Issuance Fee") with respect to
each Letter of Credit to be agreed upon annually between the Borrower and each
Issuing Bank shall be payable by the Borrower to such Issuing Bank for its
account.
SECTION 4. COMPETITIVE BID LOANS.
SECTION 4.1. THE COMPETITIVE BID OPTION. In addition to the Syndicated
Loans made pursuant to Section 2 hereof, the Borrower may request Competitive
Bid Loans pursuant to the terms of this Section 4. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 4.
Notwithstanding any other provision herein to the contrary, at no time shall the
aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the Total Commitment minus the sum of (a) the aggregate outstanding
principal amount of Syndicated Loans (including the Swing Loans), plus (b) the
Maximum Drawing Amount of Letters of Credit, outstanding at such time.
SECTION 4.2. COMPETITIVE BID LOAN ACCOUNTS; COMPETITIVE BID LOANS.
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(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at
the applicable rate accrued thereon, shall be evidenced by this
Agreement and by individual loan accounts (the "Competitive Bid Loan
Accounts" and individually, a "Competitive Bid Loan Account")
maintained by the Administrative Agent on its books for each of the
Banks, it being the intention of the parties hereto that, except as
provided for in paragraph (b) of this Section 4.2, the Borrower's
obligations with respect to Competitive Bid Loans are to be evidenced
only as stated herein and not by separate promissory notes.
(b) Any Bank may at any time, and from time to time, request
that any Competitive Bid Loans outstanding to such Bank be evidenced by
a promissory note of the Borrower in the form approved by the
Administrative Agent, dated as of the Effective Date and completed with
appropriate insertions.
(c) The Borrower irrevocably authorizes the Administrative
Agent to make or cause to be made, in connection with a Drawdown Date
of any Competitive Bid Loan or at the time of receipt of any payment of
principal on the applicable Bank's Competitive Bid Loan Account, an
appropriate notation on the Administrative Agent's records, reflecting
the making of the Competitive Bid Loan, or the receipt of such payment
(as the case may be). The outstanding amount of the Competitive Bid
Loans set forth on the Administrative Agent's records, shall be prima
facie evidence of the principal amount thereof owing and unpaid to such
Bank, but the failure to record, or any error in so recording, any such
amount shall not limit or otherwise affect the obligations of the
Borrower hereunder to make payments of principal of or interest on any
Competitive Bid Loan when due.
SECTION 4.3. COMPETITIVE BID QUOTE REQUEST; INVITATION FOR COMPETITIVE
BID QUOTES.
(a) When the Borrower wishes to request offers to make
Competitive Bid Loans under this Section 4, it shall transmit to the
Administrative Agent by telex or facsimile a Competitive Bid Quote
Request substantially in the form of Exhibit E hereto (a "Competitive
Bid Quote Request") so as to be received no later than 1:00 p.m. (New
York time) (x) five (5) Eurodollar Business Days prior to the requested
Drawdown Date in the case of a Eurodollar Competitive Bid Loan (a
"Eurodollar Competitive Bid Loan") or (y) one (1) Business Day prior to
the requested Drawdown Date in the case of an Absolute Competitive Bid
Loan (an "Absolute Competitive Bid Loan"), specifying:
(i) the requested Drawdown Date (which must be a
Eurodollar Business Day in the case of a Eurodollar
Competitive Bid Loan or a Business Day in the case of an
Absolute Competitive Bid Loan);
(ii) the aggregate amount of such Competitive Bid
Loans, which shall be $10,000,000 or larger multiple of
$1,000,000;
(iii) the duration of the Interest Period(s)
applicable thereto, subject to the provisions of the
definition of Interest Period; and
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(iv) whether the Competitive Bid Quotes requested are
for Eurodollar Competitive Bid Loans or Absolute Competitive
Bid Loans.
The Borrower may request offers to make Competitive Bid Loans for more
than one Interest Period in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until the Borrower has
notified the Administrative Agent of its acceptance or non-acceptance
of the Competitive Bid Quotes relating to any outstanding Competitive
Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request,
the Administrative Agent shall send to the Banks by telecopy or
facsimile transmission an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit F hereto, which shall constitute
an invitation by the Borrower to each Bank to submit Competitive Bid
Quotes in accordance with this Section 4.
SECTION 4.4. ALTERNATIVE MANNER OF PROCEDURE. If, after receipt by the
Administrative Agent and each of the Banks of a Competitive Bid Quote Request
from the Borrower in accordance with Section 4.3, the Administrative Agent or
any Bank shall be unable to complete any procedure of the auction process
described in Sections 4.5 through 4.6 (inclusive) due to the inability of such
Person to transmit or receive communications through the means specified
therein, such Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such Person shall rely on
telephone transmission or receipt, any communication made by telephone shall, as
soon as possible thereafter, be followed by written confirmation thereof.
SECTION 4.5. SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(a) Each Bank may, but shall be under no obligation to, submit
a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the requirements of this
Section 4.5 and must be submitted to the Administrative Agent by telex
or facsimile transmission at its offices as specified in or pursuant to
Section 22 not later than (x) 2:00 p.m. (New York time) on the fourth
Eurodollar Business Day prior to the proposed Drawdown Date, in the
case of a Eurodollar Competitive Bid Loan or (y) 10:00 a.m. (New York
time) on the proposed Drawdown Date, in the case of an Absolute
Competitive Bid Loan, provided that Competitive Bid Quotes may be
submitted by the Administrative Agent in its capacity as a Bank only if
it submits its Competitive Bid Quote to the Borrower not later than (x)
one hour prior to the deadline for the other Banks, in the case of a
Eurodollar Competitive Bid Loan or (y) 15 minutes prior to the deadline
for the other Banks, in the case of an Absolute Competitive Bid Loan.
Subject to the provisions of Sections 10 and 11 hereof, any Competitive
Bid Quote so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the
form of Exhibit G hereto and shall in any case specify:
(i) the proposed Drawdown Date;
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(ii) the principal amount of the Competitive Bid Loan
for which each proposal is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the aggregate principal amount
of Competitive Bid Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which offers
being made by such quoting Bank may be accepted;
(iii) the Interest Period(s) for which Competitive
Bid Quotes are being submitted;
(iv) in the case of a Eurodollar Competitive Bid
Loan, the margin above or below the applicable Eurodollar Rate
(the "Competitive Bid Margin") offered for each such
Competitive Bid Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or subtracted
from such Eurodollar Rate;
(v) in the case of an Absolute Competitive Bid Loan,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Competitive Bid Rate") offered for
each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Bank.
A Competitive Bid Quote may include up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit G
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation
for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section
4.5(a) hereof.
SECTION 4.6. NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Competitive Bid Quote
submitted by a Bank that is in accordance with Section 4.5 and (y) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid
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Quote Request, (B) the respective principal amounts and Competitive Bid Margins
or Competitive Bid Rates, as the case may be, so offered, and the identity of
the respective Banks submitting such offers, and (C) if applicable, limitations
on the aggregate principal amount of Competitive Bid Loans for which offers in
any single Competitive Bid Quote may be accepted.
SECTION 4.7. ACCEPTANCE AND NOTICE BY BORROWER AND ADMINISTRATIVE
AGENT. Not later than 11:00 a.m. (New York time) on (x) the third Eurodollar
Business Day prior to the proposed Drawdown Date, in the case of a Eurodollar
Competitive Bid Loan or (y) the proposed Drawdown Date, in the case of an
Absolute Competitive Bid Loan, the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of each Competitive Bid Quote in
substantially the form of Exhibit H hereto. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case
may be, and
(iii) the Borrower may not accept any offer that is described
in subsection 4.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
The Administrative Agent shall promptly notify each Bank which submitted a
Competitive Bid Quote of the Borrower's acceptance or non-acceptance thereof. At
the request of any Bank which submitted a Competitive Bid Quote and with the
consent of the Borrower, the Administrative Agent will promptly notify all Banks
which submitted Competitive Bid Quotes of (a) the aggregate principal amount of,
and (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the
accepted Competitive Bid Loans for each requested Interest Period.
SECTION 4.8. ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Banks with the same Competitive Bid Margin or Competitive Bid Rate,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not less than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Administrative Agent of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
SECTION 4.9. FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not
terminated in full and if, on such Drawdown Date, the applicable conditions of
Sections 10 and 11 hereof are satisfied, the Bank or Banks whose offers the
Borrower has accepted will fund each Competitive Bid Loan so accepted. Such Bank
or Banks will make such Competitive Bid Loans by crediting the Administrative
Agent for further credit to the Borrower's specified account
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with the Administrative Agent, in immediately available funds not later than
1:00 p.m. (New York time) on such Drawdown Date.
SECTION 4.10. FUNDING LOSSES. If, after acceptance of any Competitive
Bid Quote pursuant to Section 4, the Borrower (i) fails to borrow any
Competitive Bid Loan so accepted on the date specified therefor, or (ii) repays
the outstanding amount of the Competitive Bid Loan prior to the last day of the
Interest Period relating thereto, the Borrower shall indemnify the Bank making
such Competitive Bid Quote or funding such Competitive Bid Loan against any loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such unborrowed
Competitive Bid Loans, including, without limitation compensation as provided in
Section 5.8.
SECTION 4.11. REPAYMENT OF COMPETITIVE BID LOANS; INTEREST. The
principal of each Competitive Bid Loan shall become absolutely due and payable
by the Borrower on the last day of the Interest Period relating thereto, and the
Borrower hereby absolutely and unconditionally promises to pay to the
Administrative Agent for the account of the relevant Banks at or before 1:00
p.m. (New York time) on the last day of the Interest Periods relating thereto
the principal amount of all such Competitive Bid Loans, plus interest thereon at
the applicable rates. The Competitive Bid Loans shall bear interest at the rate
per annum specified in the applicable Competitive Bid Quotes. Interest on the
Competitive Bid Loans shall be payable (a) on the last day of the applicable
Interest Periods, and if any such Interest Period is longer than three months,
also on the last day of the third month following the commencement of such
Interest Period, and (b) on the Maturity Date for all Loans. Subject to the
terms of this Agreement, the Borrower may make Competitive Bid Quote Requests
with respect to new Borrowings of any amounts so repaid prior to the Maturity
Date.
SECTION 5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT.
SECTION 5.1. PAYMENTS.
(a) All payments of principal, interest, Reimbursement
Obligations, fees (other than the Issuance Fee) and any other amounts
due hereunder or under any of the other Loan Documents shall be made to
the Administrative Agent at its Loan Office in immediately available
funds by 11:00 a.m. (New York time) on any due date. Subject to the
provisions of Section 29, if a payment is received by the
Administrative Agent at or before 1:00 p.m. (New York time) on any
Business Day, the Administrative Agent shall on the same Business Day
transfer in immediately available funds, as applicable, to (1) each of
the Banks, their pro rata portion of such payment in accordance with
their respective Commitment Percentages, in the case of payments with
respect to Syndicated Loans and Letters of Credit, (2) the
Administrative Agent in the case of payments with respect to Swing Line
Loans, and (3) the appropriate Bank(s), in the case of payments with
respect to Competitive Bid Loans. If such payment is received by the
Administrative Agent after 1:00 p.m. (New York time) on any Business
Day, such transfer shall be made by the Administrative Agent to the
applicable Bank(s) on the next Business Day. In the event that the
Administrative Agent fails to make such transfer to any Bank as set
forth above, the Administrative Agent shall pay
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to such Bank on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by such Bank for funds acquired
by such Bank during each day included in such period, times (ii) the
amount (A) equal to such Bank's Commitment Percentage of such payment
in the case of payments under clause (1) above, or (B) of such payment
to which such Bank is entitled in the case of payments with respect to
Competitive Bid Loans and Swing Line Loans, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
the date of payment to and including the date on which the amount due
to such Bank shall become immediately available to such Bank, and the
denominator of which is 365. A statement of such Bank submitted to the
applicable Administrative Agent with respect to any amounts owing under
this paragraph shall be prima facie evidence of the amount due and
owing to such Bank by the Administrative Agent.
(b) All payments by the Borrower hereunder and under any of
the other Loan Documents shall be made without recoupment, setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrower with respect to any
amount payable by it hereunder or under any of the other Loan
Documents, the Borrower will pay to the Administrative Agent, for the
account of the Banks or (as the case may be) the Administrative Agent,
on the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks or the Administrative Agent to receive
the same net amount which the Banks or the Administrative Agent would
have received on such due date had no such obligation been imposed upon
the Borrower. The Borrower will deliver promptly to the Administrative
Agent certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.
(c) Each Bank that is not incorporated or organized under the
laws of the United States of America or a state thereof or the District
of Columbia (a "Non-U.S. Bank") agrees that, prior to the first date on
which any payment is due to it hereunder, it will deliver to the
Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, certifying in each case
that such Non-U.S. Bank is entitled to receive payments under this
Agreement, without deduction or withholding of any United States
federal income taxes. Each Non-U.S. Bank that so delivers a Form W-8BEN
or W-8ECI pursuant to the preceding sentence further undertakes to
deliver to each of the Borrower and the Administrative Agent two
further copies of Form W-8BEN or W-8ECI or successor applicable form,
or other manner of certification, as the case may be, on or before the
date that any such letter or form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent
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form previously delivered by it to the Borrower, and such extensions or
renewals thereof as may reasonably be requested by the Borrower,
certifying in the case of a Form W-8BEN or W-8ECI that such Non-U.S.
Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes,
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Non-U.S. Bank from
duly completing and delivering any such form with respect to it and
such Non-U.S. Bank advises the Borrower that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
(d) The Borrower shall not be required to pay any additional
amounts to any Non-U.S. Bank in respect of United States Federal
withholding tax pursuant to Section 17 to the extent that (i) the
obligation to withhold amounts with respect to United States Federal
withholding tax existed on the date such Non-U.S. Bank became a party
to this Agreement or, with respect to payments to a different lending
office designated by the Non-U.S. Bank as its applicable lending office
(a "New Lending Office"), the date such Non-U.S. Bank designated such
New Lending Office with respect to a Loan; provided, however, that this
clause (i) shall not apply to any transferee or New Lending Office as a
result of an assignment, transfer or designation made at the request of
the Borrower; and provided further, however, that this clause (i) shall
not apply to the extent the indemnity payment or additional amounts any
transferee, or Bank through a New Lending Office, would be entitled to
receive without regard to this clause (i) do not exceed the indemnity
payment or additional amounts that the Person making the assignment or
transfer to such transferee, or Bank making the designation of such New
Lending Office, would have been entitled to receive in the absence of
such assignment, transfer or designation; or (ii) the obligation to pay
such additional amounts would not have arisen but for a failure by such
Non-U.S. Bank to comply with the provisions of paragraph (b) above.
(e) Notwithstanding the foregoing, each Bank agrees to use
reasonable efforts (consistent with legal and regulatory restrictions)
to change its lending office to avoid or to minimize any amounts
otherwise payable under Section 17 in each case solely if such change
can be made in a manner so that such Bank, in its sole determination,
suffers no legal, economic or regulatory disadvantage.
SECTION 5.2. MANDATORY REPAYMENTS OF THE LOANS. If at any time the sum
of the outstanding principal amount of the Loans plus the Maximum Drawing Amount
of all outstanding Letters of Credit exceeds the Total Commitment, whether by
reduction of the Total Commitment or otherwise, then the Borrower shall
immediately pay the amount of such excess to the Administrative Agent, (i) for
application to the Loans, first to Syndicated Loans, then to Competitive Bid
Loans, subject to Section 5.8, or (ii) if no Loans shall be outstanding, to be
held by the Administrative Agent for the benefit of the Banks as collateral
security for such excess Maximum Drawing Amount and the Borrower hereby grants a
security interest in such amount to the Administrative Agent for the benefit of
the Banks; provided, however, that if the amount of cash collateral held by the
Administrative Agent pursuant to this Section 5.2(a) exceeds the Maximum Drawing
Amount
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required to be collateralized from time to time, the Administrative Agent shall
return such excess to the Borrower.
SECTION 5.3. COMPUTATIONS. Except as otherwise expressly provided
herein, all computations of interest, Facility Fees, Letter of Credit Fees or
other fees shall be based on a 360-day year and paid for the actual number of
days elapsed, except that computations based on the Base Rate shall be based on
a 365 or 366, as applicable, day year and paid for the actual number of days
elapsed. Whenever a payment hereunder or under any of the other Loan Documents
becomes due on a day that is not a Business Day, the due date for such payment
shall be extended to the next succeeding Business Day, and interest shall accrue
during such extension; provided that for any Interest Period for any Eurodollar
Loan if such next succeeding Business Day falls in the next succeeding calendar
month or after the Maturity Date, it shall be deemed to end on the next
preceding Business Day.
SECTION 5.4. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
Notwithstanding any other provision of this Agreement (other than Section 5.10),
if (a) the introduction of, any change in, or any change in the interpretation
of, any law or regulation applicable to any Bank or the Administrative Agent
shall make it unlawful, or any central bank or other governmental authority
having jurisdiction thereof shall assert that it is unlawful, for any Bank or
the Administrative Agent to perform its obligations in respect of any Eurodollar
Loans, or (b) if any Bank or the Administrative Agent, as applicable, shall
reasonably determine with respect to Eurodollar Loans that (i) by reason of
circumstances affecting any Eurodollar interbank market, adequate and reasonable
methods do not exist for ascertaining the Eurodollar Rate which would otherwise
be applicable during any Interest Period, or (ii) deposits of Dollars in the
relevant amount for the relevant Interest Period are not available to such Bank
or the Administrative Agent in any Eurodollar interbank market, or (iii) the
Eurodollar Rate does not or will not accurately reflect the cost to the Bank or
the Administrative Agent of obtaining or maintaining the Eurodollar Loans during
any Interest Period, then such Bank or the Administrative Agent shall promptly
give telephonic, telex or cable notice of such determination to the Borrower
(which notice shall be conclusive and binding upon the Borrower). Upon such
notification by the Bank or the Administrative Agent, the obligation of the
Banks and the Administrative Agent to make Eurodollar Loans shall be suspended
until the Banks or the Administrative Agent, as the case may be, determine that
such circumstances no longer exist, and to the extent permitted by law the
outstanding Eurodollar Loans shall continue to bear interest at the applicable
rate based on the Eurodollar Rate until the end of the applicable Interest
Period, and thereafter shall be deemed converted to Base Rate Loans in equal
principal amounts to such former Eurodollar Loans.
SECTION 5.5. ADDITIONAL COSTS, ETC. If any present or future applicable
law (which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank by any central bank or other fiscal, monetary or
other authority, whether or not having the force of law) shall:
(a) subject such Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this
Agreement, the other
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Loan Documents, such Bank's Commitment or the Loans (other than taxes
based upon or measured by the income or profits of such Bank imposed by
the jurisdiction of its incorporation or organization, or the location
of its lending office); or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits of such Bank imposed by the
jurisdiction of its incorporation or organization, or the location of
its lending office) of payments to such Bank of the principal or of the
interest on any Loans or any other amounts payable to such Bank under
this Agreement or the other Loan Documents; or
(c) except as provided in Section 5.6 or as otherwise
reflected in the Base Rate, the Eurodollar Rate, or the applicable rate
for Competitive Bid Loans, impose or increase or render applicable
(other than to the extent specifically provided for elsewhere in this
Agreement) any special deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force
of law) against assets held by, or deposits in or for the account of,
or loans by, or commitments of, an office of any Bank with respect to
this Agreement, the other Loan Documents, such Bank's Commitment or the
Loans; or
(d) impose on such Bank any other conditions or requirements
with respect to this Agreement, the other Loan Documents, the Loans,
such Bank's Commitment or any class of loans or commitments of which
any of the Loans or such Bank's Commitment forms a part, and the result
of any of the foregoing is:
(i) to increase the cost to such Bank of making,
funding, issuing, renewing, extending or maintaining the Loans
or such Bank's Commitment or issuing or participating in
Letters of Credit;
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank hereunder on account of such
Bank's Commitment, the Loans or the Reimbursement Obligations;
or
(iii) to require such Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount
of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon demand
made by such Bank at any time and from time to time as often as the
occasion therefore may arise (which demand shall be accompanied by a
statement setting forth the basis of such demand which shall be
conclusive absent manifest error), pay such reasonable additional
amounts as will be sufficient to compensate such Bank for such
additional costs, reduction, payment or foregone interest or other sum.
SECTION 5.6. CAPITAL ADEQUACY. If any Bank shall have determined that,
after the date hereof, (a) the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any such law, rule, or
regulation, or any change in the
-36-
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, or (b) compliance by such Bank or the Administrative Agent or any
corporation controlling such Bank or the Administrative Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has or
would have the effect of reducing the rate of return on capital of such Bank (or
any corporation controlling such Bank) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or any corporation
controlling such Bank) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will, in such Bank's
reasonable determination, fairly compensate such Bank (or any corporation
controlling such Bank) for such reduction. Each Bank shall allocate such cost
increases among its customers in good faith and on an equitable basis.
SECTION 5.7. CERTIFICATE. A certificate setting forth the additional
amounts payable pursuant to Section 5.5 or Section 5.6 and a reasonable
explanation of such amounts which are due, submitted by any Bank to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing; provided that no Bank shall be entitled to additional amounts with
respect to events or circumstances occurring more than one hundred and twenty
(120) days prior to the delivery of such certificate.
SECTION 5.8. EURODOLLAR AND COMPETITIVE BID INDEMNITY. The Borrower
agrees to indemnify the Banks and the Administrative Agent and to hold them
harmless from and against any reasonable loss, cost or expense that any such
Bank and the Administrative Agent may sustain or incur as a consequence of (a)
the default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Loans or Competitive Bid Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by any Bank or the Administrative Agent to lenders of funds obtained by
it in order to maintain its Eurodollar Loans or Competitive Bid Loans, (b) the
default by the Borrower in making a Borrowing of a Eurodollar Loan or
Competitive Bid Loan or conversion of a Eurodollar Loan or a prepayment of a
Eurodollar or Competitive Bid Loan after the Borrower has given (or is deemed to
have given) a Syndicated Loan Request, a notice pursuant to Section 2.7 or a
Notice of Acceptance/Rejection of Competitive Bid Quote(s), or a notice pursuant
to Section 2.10, and (c) the making of any payment of a Eurodollar Loan or
Competitive Bid Loan, or the making of any conversion of any Eurodollar Loan to
a Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto. Such loss, cost, or reasonable expense shall
include an amount equal to the excess, if any, as reasonably determined by each
Bank of (i) its cost of obtaining the funds for (A) the Eurodollar Loan being
paid, prepaid, converted, not converted, reallocated, or not borrowed, as the
case may be (based on the Eurodollar Rate), or (B) the Competitive Bid Loan
being paid, prepaid, or not borrowed, as the case may be (based on the
applicable interest rate) for the period from the date of such payment,
prepayment, conversion, or failure to borrow or convert, as the case may be, to
the last day of the Interest Period for such Loan (or, in the case of a failure
to borrow, the Interest Period for the Loan which would have
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commenced on the date of such failure to borrow) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid, converted, or not borrowed,
converted, or prepaid for such period or Interest Period, as the case may be,
which determinations shall be conclusive absent manifest error.
SECTION 5.9. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
the Applicable Base Rate plus 2%, until such amount shall be paid in full (after
as well as before judgment).
SECTION 5.10. INTEREST LIMITATION. Notwithstanding any other term of
this Agreement, any other Loan Document or any other document referred to herein
or therein, the maximum amount of interest which may be charged to or collected
from any Person liable hereunder by any Bank shall be absolutely limited to, and
shall in no event exceed, the maximum amount of interest which could lawfully be
charged or collected by such Bank under applicable laws (including, to the
extent applicable, the provisions of Section 5197 of the Revised Statutes of the
United States of America, as amended, and 12 U.S.C. Section 85, as amended).
SECTION 5.11. REASONABLE EFFORTS TO MITIGATE. Each Bank agrees that as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would cause it to be affected under Sections
5.4, 5.5 or 5.6, such Bank will give notice thereof to the Borrower, with a copy
to the Administrative Agent and, to the extent so requested by the Borrower and
not inconsistent with such Bank's internal policies, such Bank shall use
reasonable efforts and take such actions as are reasonably appropriate if as a
result thereof the additional moneys which would otherwise be required to be
paid to such Bank pursuant to such sections would be materially reduced, or the
illegality or other adverse circumstances which would otherwise require a
conversion of such Loans or result in the inability to make such Loans pursuant
to such sections would cease to exist, and in each case if, as determined by
such Bank in its sole discretion, the taking of such actions would not adversely
affect such Loans or such Bank or otherwise be disadvantageous to such Bank.
SECTION 5.12. REPLACEMENT OF BANKS. If any Bank (an "Affected Bank")
(i) makes demand upon the Borrower for (or if the Borrower is otherwise required
to pay) amounts pursuant to Sections 5.5 or 5.6, (ii) is unable to make or
maintain Eurodollar Loans as a result of a condition described in Section 5.4 or
(iii) defaults in its obligation to make Loans or to participate in Letters of
Credit in accordance with the terms of this Agreement (such Bank being referred
to as a "Defaulting Bank"), the Borrower may, within 90 days of receipt of such
demand, notice (or the occurrence of such other event causing the Borrower to be
required to pay such compensation or causing Section 5.4 to be applicable), or
default, as the case may be, by notice (a "Replacement Notice") in writing to
the Administrative Agent and such Affected Bank (A) request the Affected Bank to
cooperate with the Borrower in obtaining a replacement bank satisfactory to the
Administrative Agent and the Borrower (the "Replacement Bank") as provided
herein, but none of such Banks shall be under an obligation to find a
Replacement Bank; (B) request the non-Affected Banks to acquire and assume all
of the Affected Bank's Loans and Commitment, and to participate in Letters of
Credit as provided herein, but none of
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such Banks shall be under an obligation to do so; or (C) designate a Replacement
Bank reasonably satisfactory to the Administrative Agent. If any satisfactory
Replacement Bank shall be obtained, and/or any of the non-Affected Banks shall
agree to acquire and assume all of the Affected Bank's Loans and Commitment, and
to participate in Letters of Credit then such Affected Bank shall, so long as no
Event of Default shall have occurred and be continuing, assign, in accordance
with Section 20, all of its Commitment, Loans, and other rights and obligations
under this Agreement and all other Loan Documents to such Replacement Bank or
non-Affected Banks, as the case may be, in exchange for payment of the principal
amount so assigned and all interest and fees accrued on the amount so assigned,
plus all other Obligations then due and payable to the Affected Bank; provided,
however, that (x) such assignment shall be without recourse, representation or
warranty and shall be on terms and conditions reasonably satisfactory to such
Affected Bank and such Replacement Bank and/or non-Affected Banks, as the case
may be, and (y) prior to any such assignment, the Borrower shall have paid to
such Affected Bank all amounts properly demanded and unreimbursed under Sections
5.5, 5.6 and 5.8. Upon the effective date of such assignment, such Replacement
Bank shall become a "Bank" for all purposes under this Agreement and the other
Loan Documents.
SECTION 5.13. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative
Agent may (unless earlier notified to the contrary by any Bank by 12:00 noon
(New York time) one (1) Business Day prior to any Drawdown Date) assume that
each Bank has made available (or will before the end of such Business Day make
available) to the Administrative Agent the amount of such Bank's Commitment
Percentage with respect to the Loans (or, in the case of Competitive Bid Loans,
the amount of such Bank's accepted offers of such Loans, if any) to be made on
such Drawdown Date, and the Administrative Agent may (but shall not be required
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes such amount available to the
Administrative Agent on a date after such Drawdown Date, such Bank shall pay the
Administrative Agent on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below, of the
weighted average annual interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in
such period times (ii) the amount equal to such Bank's Commitment Percentage of
such Syndicated Loan (or, in the case of Competitive Bid Loans and Swing Line
Loans, the amount of such Bank's accepted offer of such Competitive Bid Loans,
if any, and portion of such Swing Line Loans) times (iii) a fraction, the
numerator of which is the number of days that elapse from and including such
Drawdown Date to but not including the date on which the amount equal to such
Bank's Commitment Percentage of such Loans, or the amount of such Bank's
accepted offers of such Competitive Bid Loans, if any, and portion of Swing Line
Loans, shall become immediately available to the Administrative Agent, and the
denominator of which is 365. A statement of the Administrative Agent submitted
to such Bank with respect to any amounts owing under this paragraph shall be
prima facie evidence of the amount due and owing to the Administrative Agent by
such Bank. If such amount is not in fact made available to the Administrative
Agent by such Bank within three (3) Business Days of such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from such
Borrower, with interest thereon at the applicable rate per annum.
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SECTION 6. REPRESENTATIONS AND WARRANTIES. The Borrower (and the
Guarantor, where applicable) represents and warrants to the Banks that:
SECTION 6.1. CORPORATE AUTHORITY.
(a) Incorporation; Good Standing. The Borrower and each of its
Material Subsidiaries (i) is duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of
formation, (ii) has all requisite corporate power to own its property
and conduct its business as now conducted and as presently
contemplated, and (iii) is in good standing and is duly authorized to
do business in each jurisdiction in which its property or business as
presently conducted or contemplated makes such qualification necessary,
except where a failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect.
(b) Authorization. The execution, delivery and performance of
its Loan Documents and the transactions contemplated hereby and thereby
(i) are within the corporate authority of the Borrower and the
Guarantor, (ii) have been duly authorized by all necessary corporate
proceedings on the part of each of the Borrower and the Guarantor,
(iii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which any of the
Borrower or the Guarantor or any of their Subsidiaries is subject or
any judgment, order, writ, injunction, license or permit applicable to
the Borrower, the Guarantor or any of their Subsidiaries so as to have
a Material Adverse Effect, and (iv) do not conflict with any provision
of the corporate charter or bylaws of the Borrower, the Guarantor or
any Material Subsidiary or any agreement or other instrument binding
upon the Borrower, the Guarantor or any of their Material Subsidiaries,
except for those conflicts with any such agreement or instrument which
could not reasonably be expected to have a Material Adverse Effect.
(c) Enforceability. The execution, delivery and performance of
the Loan Documents by the Borrower and the Guarantor will result in
valid and legally binding obligations of the Borrower and the Guarantor
enforceable against them in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights
generally and general principles of equity.
SECTION 6.2. GOVERNMENTAL AND OTHER APPROVALS. The execution, delivery
and performance of the Loan Documents by the Borrower and the Guarantor and the
consummation by the Borrower and the Guarantor of the transactions contemplated
hereby and thereby do not require any approval or consent of, or filing with,
any governmental agency or authority or other third party other than those
already obtained and those required after the date hereof in connection with the
Borrower's performance of the covenants contained in Sections 7, 8 and 9 hereof.
SECTION 6.3. TITLE TO PROPERTIES; LEASES. The Borrower and its
Subsidiaries own all of the assets reflected in the consolidated balance sheet
as at the Interim Balance Sheet Date or acquired since that date (except
property and assets operated under Capital Leases or
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sold or otherwise disposed of in the ordinary course of business since that
date), subject to no Liens except Permitted Liens.
SECTION 6.4. FINANCIAL STATEMENTS; SOLVENCY.
(a) There have been furnished to the Banks consolidated
balance sheets of the Borrower and its Subsidiaries
dated the Balance Sheet Date and consolidated
statements of operations for the fiscal periods then
ended, certified by the Accountants. In addition,
there have been furnished to the Banks consolidated
balance sheets of the Borrower and its Subsidiaries
dated the Interim Balance Sheet Date and the related
consolidated statements of operation for the fiscal
quarter ending on the Interim Balance Sheet Date. All
said balance sheets and statements of operations have
been prepared in accordance with GAAP (but, in the
case of any of such financial statements which are
unaudited, only to the extent GAAP is applicable to
interim unaudited reports), fairly present, in all
material respects, the financial condition of the
Borrower and its Subsidiaries on a consolidated basis
as at the close of business on the dates thereof and
the results of operations for the periods then ended,
subject, in the case of unaudited interim financial
statements, to changes resulting from audit and
normal year-end adjustments and to the absence of
complete footnotes. There are no contingent
liabilities of the Borrower and its Subsidiaries
involving material amounts, known to the officers of
the Borrower or the Guarantor which have not been
disclosed in said balance sheets and the related
notes thereto or otherwise in writing to the Banks.
(b) The Borrower and its Subsidiaries on a consolidated
basis (both before and after giving effect to the
transactions contemplated by this Agreement) are
solvent (i.e., they have assets having a fair value
in excess of the amount required to pay their
probable liabilities on their existing debts as they
become absolute and matured) and have, and expect to
have, the ability to pay their debts from time to
time incurred in connection therewith as such debts
mature.
SECTION 6.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date,
there have been no material adverse changes in the consolidated financial
condition, business, assets or liabilities (contingent or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, other than changes in the
ordinary course of business which have not had a Material Adverse Effect.
SECTION 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and
each of its Subsidiaries possess all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of their business substantially as now
conducted (other than those the absence of which would not have a Material
Adverse Effect) without known conflict with any rights of others other than a
conflict which would not have a Material Adverse Effect.
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SECTION 6.7. LITIGATION. Except as set forth on Schedule 6.7 or in the
Disclosure Documents, there are no actions, suits, proceedings or investigations
of any kind pending or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries before any court, tribunal or administrative
agency or board which, either in any case or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
SECTION 6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower
nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Borrower's or such Subsidiary's officers has or could reasonably
be expected in the future to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries is a party to any contract or agreement
which in the judgment of the Borrower's or its Subsidiary's officers has or
could reasonably be expected to have any Material Adverse Effect, except as
otherwise reflected in adequate reserves as required by GAAP.
SECTION 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is (a) violating any provision of its
charter documents or by-laws or (b) violating any agreement or instrument to
which any of them may be subject or by which any of them or any of their
properties may be bound or any decree, order, judgment, or any statute, license,
rule or regulation, in a manner which could (in the case of such agreements or
such instruments) reasonably be expected to result in a Material Adverse Effect.
SECTION 6.10. TAX STATUS. The Borrower and its Subsidiaries have filed
all federal, state, provincial and territorial income and all other tax returns,
reports and declarations (or obtained extensions with respect thereto) required
by applicable law to be filed by them (unless and only to the extent that the
Borrower or such Subsidiary has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes as required by
GAAP); and have paid all taxes and other governmental assessments and charges
(other than taxes, assessments and other governmental charges imposed by
jurisdictions other than the United States, Canada or any political subdivision
thereof which in the aggregate are not material to the financial condition,
business or assets of the Borrower or such Subsidiary on an individual basis or
of the Borrower and its Subsidiaries on a consolidated basis) that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith; and, as required by
GAAP, have set aside on their books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. Except to the extent contested in the
manner permitted in the preceding sentence, there are no unpaid taxes in any
material amount claimed by the taxing authority of any jurisdiction to be due
and owing by the Borrower or any Subsidiary, nor do the officers of the Borrower
or any of its Subsidiaries know of any basis for any such claim.
SECTION 6.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred hereunder and is continuing.
SECTION 6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are
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defined in the Public Utility Holding Company Act of 1935; nor is any of them a
"registered investment company", or an "affiliated company" or a "principal
underwriter" of a "registered investment company", as such terms are defined in
the Investment Company Act of 1940.
SECTION 6.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except as permitted
by Section 8.1 of this Agreement, there is no Indebtedness senior to the
Obligations, and except for Permitted Liens, there are no Liens, or any
effective financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records, registry,
or other public office, which purports to cover, affect or give notice of any
present or possible future Lien on any assets or property of the Borrower or any
of its Subsidiaries or right thereunder.
SECTION 6.14. EMPLOYEE BENEFIT PLANS.
SECTION 6.14.1. IN GENERAL. Each Employee Benefit Plan has
been maintained and operated in compliance with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to
the provisions thereunder respecting prohibited transactions. Promptly
upon the request of any Bank or the Administrative Agent, the Borrower
will furnish to the Administrative Agent the most recently completed
annual report, Form 5500, with all required attachments, and actuarial
statement required to be submitted under Section 103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
SECTION 6.14.2. TERMINABILITY OF WELFARE PLANS. Under each
Employee Benefit Plan which is an employee welfare benefit plan within
the meaning of Section 3(1) or Section 3(2)(B) of ERISA, no benefits
are due unless the event giving rise to the benefit entitlement occurs
prior to plan termination (except as required by Title I, Part 6 of
ERISA) . The Borrower or an ERISA Affiliate, as appropriate, may
terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of
the Borrower or such ERISA Affiliate without material liability to any
Person.
SECTION 6.14.3. GUARANTEED PENSION PLANS. Each contribution
required to be made to a Guaranteed Pension Plan, whether required to
be made to avoid the incurrence of an accumulated funding deficiency,
the notice or lien provisions of Section 302(f) of ERISA, or otherwise,
has been timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by
the Borrower or any ERISA Affiliate with respect to any Guaranteed
Pension Plan (other than Terminated Plans) and there has not been any
ERISA Reportable Event, or any other event or condition which presents
a material risk of termination of any Guaranteed Pension Plan by the
PBGC. Other than with respect to the Terminated Plans, based on the
latest valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this representation), and
on the actuarial methods and assumptions employed for that valuation,
the aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of Section 4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose
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the benefit liabilities and assets of any Guaranteed Pension Plan with
assets in excess of benefit liabilities.
SECTION 6.14.4. MULTIEMPLOYER PLANS. Neither the Borrower nor
any ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets described in
Section 4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of Section 4241 or Section 4245
of ERISA or that any Multiemployer Plan intends to terminate or has
been terminated under Section 4041A of ERISA.
SECTION 6.15. ENVIRONMENTAL COMPLIANCE. The Borrower and its
Subsidiaries have taken all steps that they have deemed reasonably necessary to
investigate the past and present condition and usage of the Real Property and
the operations conducted by the Borrower and its Subsidiaries and, based upon
such diligent investigation, have determined that, except as set forth on
Schedule 6.15 or in the Disclosure Documents:
(a) Neither the Borrower, its Material Subsidiaries, nor any
operator of their properties, is in violation, or alleged violation, of
any judgment, decree, order, law, permit, license, rule or regulation
pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act,
the Federal Clean Air Act, the Toxic Substances Control Act, or any
applicable international, federal, state, provincial, territorial or
local statute, regulation, ordinance, order or decree relating to
health, safety, waste transportation or disposal, or the environment
(the "Environmental Laws"), which violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(b) Except with respect to any such matters that could not
reasonably be expected to have a Material Adverse Effect, neither the
Borrower nor any of its Material Subsidiaries has received notice from
any third party including, without limitation: any federal, state,
provincial, territorial or local governmental authority, (i) that any
one of them has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any hazardous waste, as
defined by 42 U.S.C. Section 6903(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. Section 9601(33) or any toxic substance, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws, excluding household hazardous waste ("Hazardous
Substances"), which any one of them has generated, transported or
disposed of, has been found at any site at which a federal, state,
provincial, territorial or local agency or other third party has
conducted or has ordered that the Borrower or any of its Material
Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is
or shall be a named party to any claim, action, cause of action,
complaint, legal or
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administrative proceeding arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in
connection with the Release of Hazardous Substances.
(c) Except for those occurrences or situations that could not
reasonably be expected to have a Material Adverse Effect, (i) no
portion of the Real Property or other assets of the Borrower and its
Material Subsidiaries has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; (ii) in the course of any activities
conducted by the Borrower, its Material Subsidiaries, or operators of
the Real Property or other assets of the Borrower and its Material
Subsidiaries, no Hazardous Substances have been generated or are being
used on such properties except in accordance with applicable
Environmental Laws; (iii) there have been no unpermitted Releases or
threatened Releases of Hazardous Substances on, upon, into or from the
Real Property or other assets of the Borrower or its Material
Subsidiaries; and (iv) any Hazardous Substances that have been
generated on the Real Property or other assets of the Borrower or its
Material Subsidiaries have been transported offsite only by carriers
having an identification number issued by the EPA, treated or disposed
of only by treatment or disposal facilities maintaining valid permits
as required under applicable Environmental Laws, which transporters and
facilities have been and are, to the Borrower's knowledge, operating in
compliance with such permits and applicable Environmental Laws.
SECTION 6.16. DISCLOSURE. No representation or warranty made by the
Borrower or the Guarantor in this Agreement or in any agreement, instrument,
document, certificate, or financial statement furnished to the Banks or the
Administrative Agent by or on behalf of or at the request of the Borrower and
the Guarantor in connection with any of the transactions contemplated by the
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein, taken as a whole, not misleading in light of the circumstances in which
they are made.
SECTION 6.17. PERMITS AND GOVERNMENTAL AUTHORITY. All permits (other
than those the absence of which could not reasonably be expected to have a
Material Adverse Effect) required for the construction and operation of all
landfills currently owned or operated by the Borrower or any of its Material
Subsidiaries have been obtained and remain in full force and effect and are not
subject to any appeals or further proceedings or to any unsatisfied conditions
that may allow material modification or revocation. Neither the Borrower nor any
of its Subsidiaries, nor, to the knowledge of the Borrower, the holder of such
permits is in violation of any such permits, except for any violation which
could not reasonably be expected to have a Material Adverse Effect.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation or any Letter of Credit is outstanding or the
Banks have any obligation to make Loans, or any Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit hereunder, or the Banks have any
obligations to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall, and shall cause its Subsidiaries to, comply with the
following covenants:
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SECTION 7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, fees and other amounts provided for in this Agreement
and the other Loan Documents, all in accordance with the terms of this Agreement
and such other Loan Documents.
SECTION 7.2. MAINTENANCE OF U.S. OFFICE. The Borrower will maintain its
chief executive offices at Houston, Texas, or at such other place in the United
States of America as the Borrower shall designate upon 30 days' prior written
notice to the Administrative Agent.
SECTION 7.3. RECORDS AND ACCOUNTS. The Borrower will, and will cause
each of its Subsidiaries to, keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP and
with the requirements of all regulatory authorities and maintain adequate
accounts and reserves for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties, all other
contingencies, and all other proper reserves.
SECTION 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver to the Banks:
(a) as soon as practicable, but, in any event not later than
100 days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such year, consolidated statements of cash flows, and the
related consolidated statements of operations, each setting forth in
comparative form the figures for the previous fiscal year, all such
consolidated financial statements to be in reasonable detail, prepared,
in accordance with GAAP and, with respect to the consolidated financial
statements, certified by Ernst & Young LLP or by other nationally
recognized independent auditors selected by the Borrower and reasonably
satisfactory to the Administrative Agent (the "Accountants"). In
addition, simultaneously therewith, the Borrower shall provide the
Banks with a written statement from such Accountants to the effect that
they have read a copy of this Agreement, and that, in making the
examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such Accountants
shall have obtained knowledge of any then existing Default or Event of
Default they shall disclose in such statement any such Default or Event
of Default;
(b) as soon as practicable, but in any event not later than 60
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, copies of the consolidated balance sheet
and statement of operations of the Borrower and its Subsidiaries as at
the end of such quarter, subject to year-end adjustments, and the
related consolidated statement of cash flows, all in reasonable detail
and prepared in accordance with GAAP (to the extent GAAP is applicable
to interim unaudited financial statements) with a certification by the
principal financial or accounting officer of the Borrower (the "CFO or
the CAO") that the consolidated financial statements are prepared in
accordance with GAAP (to the extent GAAP is applicable to interim
unaudited financial statements) and fairly present, in all material
respects, the consolidated financial condition of the Borrower and its
Subsidiaries on a consolidated basis as at the close of business
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on the date thereof and the results of operations for the period then
ended, subject to year-end adjustments and the exclusion of detailed
footnotes;
(c) simultaneously with the delivery of the financial
statements referred to in (a) and (b) above, a certificate in the form
of Exhibit C hereto (the "Compliance Certificate") signed by the CFO or
the CAO or the Borrower's corporate treasurer, stating that the
Borrower and its Subsidiaries are in compliance with the covenants
contained in Sections 7, 8 and 9 hereof as of the end of the applicable
period and setting forth in reasonable detail computations evidencing
such compliance with respect to the covenants contained in Section 9
hereof and that no Default or Event of Default exists, provided that if
the Borrower shall at the time of issuance of such Compliance
Certificate or at any other time obtain knowledge of any Default or
Event of Default, the Borrower shall include in such certificate or
otherwise deliver forthwith to the Banks a certificate specifying the
nature and period of existence thereof and what action the Borrower
proposes to take with respect thereto;
(d) promptly following, the filing or mailing thereof, copies
of all material of a financial nature filed with the Securities and
Exchange Commission or sent to the Borrower's and its Subsidiaries'
stockholders generally; and
(e) from time to time such other financial data and other
information as the Banks may reasonably request.
The Borrower hereby authorizes each Bank to disclose any information
obtained pursuant to this Agreement to all appropriate governmental regulatory
authorities where required by law; provided, however, this authorization shall
not be deemed to be a waiver of any rights to object to the disclosure by the
Banks of any such information which the Borrower has or may have under the
federal Right to Financial Privacy Act of 1978, as in effect from time to time,
except as to matters specifically permitted therein.
SECTION 7.5. EXISTENCE AND CONDUCT OF BUSINESS. The Borrower will, and
will cause each Material Subsidiary, to do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
and franchises; and effect and maintain its foreign qualifications (except where
the failure of the Borrower or any Material Subsidiary to remain so qualified
could not reasonably be expected to have a Material Adverse Effect), licensing,
domestication or authorization, except as any of the foregoing may be terminated
by its Board of Directors in the exercise of its reasonable judgment; provided
that such termination could not reasonably be expected to have a Material
Adverse Effect. The Borrower will not, and will cause its Subsidiaries not to,
become obligated under any contract or binding arrangement which, at the time it
was entered into, could reasonably be expected to have a Material Adverse
Effect. The Borrower will, and will cause each Subsidiary to, continue to engage
primarily in any of the businesses now conducted by the Borrower and its
Subsidiaries and in related businesses, and any additional businesses acquired
pursuant to the terms of Section 8.4(a) hereunder.
SECTION 7.6. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause its Material Subsidiaries to, cause all material properties used or useful
in the conduct of their businesses to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and cause to
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be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower and its Material
Subsidiaries may be necessary so that the businesses carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this section shall prevent the Borrower or any of its
Subsidiaries from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Borrower or such
Subsidiary, desirable in the conduct of its or their business and which could
not reasonably be expected to have a Material Adverse Effect.
SECTION 7.7. INSURANCE. The Borrower will, and will cause its
Subsidiaries to, maintain with financially sound and reputable insurance
companies (including captive insurance companies), funds or underwriters,
insurance of the kinds, covering the risks (other than risks arising out of or
in any way connected with personal liability of any officers and directors
thereof) and in the relative proportionate amounts usually carried by reasonable
and prudent companies conducting businesses similar to that of the Borrower and
its Subsidiaries, in amounts substantially similar to the existing coverage
policies maintained by the Borrower and its Subsidiaries, copies of which have
been provided to the Administrative Agent. In addition, the Borrower will
furnish from time to time, upon the Administrative Agent's request, a summary of
the insurance coverage of the Borrower and its Subsidiaries, which summary shall
be in form and substance satisfactory to the Administrative Agent and, if
requested by the Administrative Agent, will furnish to the Administrative Agent
copies of the applicable policies.
SECTION 7.8. TAXES. The Borrower will, and will cause its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies, which if unpaid might by law become a Lien upon
any of its property; provided, however, that any such tax, assessment, charge,
levy or claim need not be paid if the failure to do so (either individually, or
in the aggregate for all such failures) could not reasonably be expected to have
a Material Adverse Effect and the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto as required by GAAP; and provided, further, that the Borrower or such
Subsidiary will pay all such taxes, assessments, charges, levies or claims prior
to the foreclosure on any Lien which may have attached as security therefor.
SECTION 7.9. INSPECTION OF PROPERTIES, BOOKS AND CONTRACTS. The
Borrower will, and will cause its Material Subsidiaries to, permit the
Administrative Agent or any Bank or any of their designated representatives,
upon reasonable notice, to visit and inspect any of the properties of the
Borrower and its Material Subsidiaries, to examine the books of account of the
Borrower and its Material Subsidiaries, or contracts (and to make copies thereof
and extracts therefrom), and to discuss the affairs, finances and accounts of
the Borrower and its Material Subsidiaries with, and to be advised as to the
same by, their officers, all at such times and intervals as may be reasonably
requested.
SECTION 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS;
MAINTENANCE OF MATERIAL LICENSES AND PERMITS. The Borrower will, and will cause
each Subsidiary to, (i) comply with the provisions of its charter documents and
by-laws;
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(ii) comply with all agreements and instruments by which it or any of its
properties may be bound except where noncompliance could not reasonably be
expected to have a Material Adverse Effect; (iii) comply with all applicable
laws and regulations (including Environmental Laws), decrees, orders, judgments,
licenses and permits, including, without limitation, all environmental permits
("Applicable Requirements"), except where noncompliance with such Applicable
Requirements could not reasonably be expected to have a Material Adverse Effect;
(iv) maintain all operating permits for all landfills now owned or hereafter
acquired, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (v) dispose of hazardous waste only at
licensed disposal facilities operating, to the Borrower's knowledge, in
compliance with Environmental Laws, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect. If at any time any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower or any Material Subsidiary may fulfill any of its obligations
hereunder or under any other Loan Document, the Borrower will immediately take
or cause to be taken all reasonable steps within the power of the Borrower or
such Material Subsidiary to obtain such authorization, consent, approval, permit
or license and furnish the Banks with evidence thereof.
SECTION 7.11. ENVIRONMENTAL INDEMNIFICATION. The Borrower covenants and
agrees that it will indemnify and hold the Banks, the Issuing Banks and the
Administrative Agent and their respective affiliates, and each of the
representatives, agents and officers of each of the foregoing, harmless from and
against any and all claims, expense, damage, loss or liability incurred by the
Banks, the Issuing Banks or the Administrative Agent (including all reasonable
costs of legal representation incurred by the Banks, the Issuing Banks or the
Administrative Agent) relating to (a) any Release or threatened Release of
Hazardous Substances on the Real Property; (b) any violation of any
Environmental Laws or Applicable Requirements with respect to conditions at the
Real Property or other assets of the Borrower or its Subsidiaries, or the
operations conducted thereon; or (c) the investigation or remediation of offsite
locations at which the Borrower, any of its Subsidiaries, or their predecessors
are alleged to have directly or indirectly Disposed of Hazardous Substances. It
is expressly acknowledged by the Borrower that this covenant of indemnification
shall survive the payment of the Loans and Reimbursement Obligations and
satisfaction of all other Obligations hereunder and shall inure to the benefit
of the Banks, the Issuing Banks, the Administrative Agent and their affiliates,
successors and assigns.
SECTION 7.12. FURTHER ASSURANCES. The Borrower and the Guarantor will
cooperate with the Administrative Agent and execute such further instruments and
documents as the Administrative Agent shall reasonably request to carry out to
the Majority Banks' satisfaction the transactions contemplated by this
Agreement.
SECTION 7.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION. The Borrower
shall deliver to the Banks, within 30 days of receipt thereof, written notice of
the initiation of any action, claim, complaint, or any other notice of dispute
or litigation against the Borrower or any of its Subsidiaries wherein the
asserted, demanded or alleged liability is in excess of $25,000,000 or which
questions the validity or enforceability of any Loan Document, together with a
copy of each such complaint or other notice received by the Borrower or any of
its Subsidiaries if requested by the Administrative Agent.
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SECTION 7.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND
ENVIRONMENTAL CLAIMS.
(a) The Borrower will provide the Banks with written notice as
to any material cancellation or material adverse change in any
insurance of the Borrower or any of its Material Subsidiaries within
ten (10) Business Days after the Borrower's or any of its Material
Subsidiary's receipt of any notice (whether formal or informal) of such
material cancellation or material change by any of its insurers.
(b) The Borrower will promptly, and in any event within ten
(10) Business Days of the Borrower's obtaining knowledge thereof,
notify the Banks in writing of any of the following events:
(i) upon the Borrower's or any Material Subsidiary's
obtaining knowledge of any violation of any Environmental Law
regarding the Real Property or the Borrower's or any
Subsidiary's operations which violation could reasonably be
expected to have a Material Adverse Effect;
(ii) upon the Borrower's or any Material Subsidiary's
obtaining knowledge of any potential or known Release, or
threat of Release, of any Hazardous Substance at, from, or
into the Real Property which could reasonably be expected to
have a Material Adverse Effect;
(iii) upon the Borrower's or any Material
Subsidiary's receipt of any notice of any material violation
of any Environmental Law or of any Release or threatened
Release of Hazardous Substances, including a notice or claim
of liability or potential responsibility from any third party
(including any federal, state, provincial, territorial or
local governmental officials) and including notice of any
formal inquiry, proceeding, demand, investigation or other
action with regard to (A) the Borrower's, any Material
Subsidiary's or any Person's operation of the Real Property,
(B) contamination on, from, or into the Real Property, or (C)
investigation or remediation of offsite locations at which the
Borrower, any Material Subsidiary, or its predecessors are
alleged to have directly or indirectly Disposed of Hazardous
Substances, and with respect to which the asserted, demanded
or alleged liability associated therewith exceeds $35,000,000;
or
(iv) upon the Borrower's or any Material Subsidiary's
obtaining knowledge that any expense or loss which
individually or in the aggregate exceeds $35,000,000 has been
incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any
Hazardous Substances with respect to which the Borrower or any
Material Subsidiary has been alleged to be liable by such
governmental authority or for which a Lien may be imposed on
the Real Property by such governmental authority.
SECTION 7.15. NOTICE OF DEFAULT. The Borrower will promptly notify the
Banks in writing of the occurrence of any Default or Event of Default. If any
Person shall give any
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notice or take any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Agreement or any other note,
evidence of indebtedness, indenture or other obligation evidencing indebtedness
in excess of $25,000,000 as to which the Borrower or any of its Material
Subsidiaries is a party or obligor, whether as principal or surety, the Borrower
shall promptly upon obtaining actual knowledge thereof give written notice
thereof to the Banks, describing the notice of action and the nature of the
claimed default.
SECTION 7.16. USE OF PROCEEDS. The proceeds of the Loans shall be used
for general corporate purposes, to provide working capital, to provide letters
of credit and to refinance existing Indebtedness of the Borrower and its
Subsidiaries. No proceeds of the Loans shall be used in any way that will
violate Regulations U or X of the Board of Governors of the Federal Reserve
System.
SECTION 7.17. CERTAIN TRANSACTIONS. Except as disclosed in the
Disclosure Documents prior to the Effective Date, and except for arm's length
transactions pursuant to which the Borrower or any Subsidiary makes payments in
the ordinary course of business upon terms no less favorable than the Borrower
or such Subsidiary could obtain from third parties, none of the officers,
directors, or employees or any other affiliate of the Borrower or any Subsidiary
are presently or shall be a party to any transaction with the Borrower or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower or any
Subsidiary, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
agrees that, so long as any Obligation or Letter of Credit is outstanding or the
Banks have any obligation to make Loans or any Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit hereunder, or the Banks have any
obligation to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall, and shall cause its Subsidiaries to, comply with the
following covenants:
SECTION 8.1. RESTRICTIONS ON INDEBTEDNESS. Neither the Borrower nor any
of its Subsidiaries shall become or be a guarantor or surety of, or otherwise
create, incur, assume, or be or remain liable, contingently or otherwise, with
respect to any Indebtedness, or become or be responsible in any manner (whether
by agreement to purchase any obligations, stock, assets, goods or services, or
to supply or advance any funds, assets, goods or services or otherwise) with
respect to any Indebtedness of any other Person (other than the Borrower or any
of its Subsidiaries), or incur any Indebtedness other than:
(a) Indebtedness arising under this Agreement or the other
Loan Documents;
(b) (i) Indebtedness incurred by the Borrower or any
Subsidiary with respect to any suretyship or performance bond incurred
in the ordinary course of its business and undrawn landfill closure
bonds;
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(ii) Guarantees of any of its Subsidiaries'
obligations to governmental authorities in lieu of the posting of any
landfill closure bonds;
(c) Unsecured Indebtedness of the Borrower (and any guarantee
thereof by the Guarantor), including commercial paper and the Five Year
Revolving Credit Facility, which is pari passu or subordinated to the
Obligations; provided that there does not exist a Default or Event of
Default at the time of the incurrence of such Indebtedness and no
Default or Event of Default would be created by the incurrence of such
Indebtedness;
(d) Indebtedness of the Guarantor and the Borrower's
Subsidiaries listed in Schedule 8.1(d) and any extension, renewal or
refinancing by the Guarantor or such Subsidiary of such Indebtedness,
provided that the terms and conditions of any such extension, renewal
or refinancing are substantially the same as the terms and conditions
in effect on the Effective Date, or are more favorable to the Guarantor
or such Subsidiary; and
(e) (i) Other Indebtedness of the Borrower's Subsidiaries
(other than of the Guarantor), (ii) secured Indebtedness of the
Borrower, (iii) Indebtedness with respect to drawn landfill closure
bonds, and (iv) Indebtedness with respect to Permitted Receivables
Transactions; provided that the aggregate amount of all such
Indebtedness in this Section 8.1(e) shall not exceed 15% of
Consolidated Tangible Assets at any time.
SECTION 8.2. RESTRICTIONS ON LIENS. The Borrower will not, and will
cause its Subsidiaries not to, create or incur or suffer to be created or
incurred or to exist any Lien of any kind upon any property or assets of any
character, whether now owned or hereafter acquired, or upon the income or
profits therefrom; or transfer any of such property or assets or the income or
profits therefrom for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors; or acquire, or agree or have an option to acquire, any
property or assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement; or suffer to exist for a period
of more than 30 days after the same shall have been incurred any Indebtedness or
claim or demand against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or sell, assign, pledge or otherwise transfer any accounts, contract
rights, general intangibles or chattel paper, with or without recourse, except
for Permitted Liens.
The Borrower and the Guarantor covenant and agree that if either of
them or any of their Subsidiaries shall create or assume any Lien upon any of
their respective properties or assets, whether now owned or hereafter acquired,
other than Permitted Liens (unless prior written consent shall have been
obtained from the Banks), the Borrower and the Guarantor will make or cause to
be made effective provision whereby the Obligations and the Guaranteed
Obligations will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured so long as such other Indebtedness shall be
so secured; provided, that the covenants of the Borrower and the Guarantor
contained in this sentence shall only be in effect for so long as the Borrower
or the Guarantor shall be similarly obligated under any other Indebtedness;
provided, further, that an Event of Default shall occur for so long as such
other Indebtedness becomes secured
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notwithstanding any actions taken by the Borrower or the Guarantor to ratably
secure the Obligations and the Guaranteed Obligations hereunder.
SECTION 8.3. RESTRICTIONS ON INVESTMENTS. Except to the extent provided
in Section 8.4, neither the Borrower nor any Subsidiary may make or permit to
exist or to remain outstanding any Investment, unless both before and after
giving effect thereto (i) the Borrower and its Subsidiaries are in compliance
with the covenants set forth in Sections 7, 8 and 9 hereof; (ii) there does not
exist a Default or Event of Default and no Default or Event of Default would be
created by the making of such Investment; and (iii) the aggregate amount of all
Investments (excluding Investments in (A) direct obligations of the United
States of America or any agency thereof having maturities of less than one (1)
year, (B) certificates of deposit having maturities of less than one (1) year,
issued by commercial banks in the United States or Canada having capital and
surplus of not less than $100,000,000, and (C) Subsidiaries), does not exceed
15% of Consolidated Tangible Assets; provided, that the ability of the Borrower
and its Subsidiaries to incur any Indebtedness in connection with any Investment
permitted by this Section 8.3 shall be governed by Section 8.1.
SECTION 8.4. MERGERS, CONSOLIDATIONS, SALES.
(a) Neither the Borrower nor any Subsidiary shall be a party
to any merger, consolidation or exchange of stock unless the Borrower
shall be the surviving entity with respect to any such transaction to
which the Borrower is a party and the Guarantor shall be the survivor
of any merger with any other Subsidiary or a Subsidiary shall be the
surviving entity (and continue to be a Subsidiary) with respect to any
such transactions to which one or more Subsidiaries is a party (and the
conditions set forth below are satisfied), or purchase or otherwise
acquire all or substantially all of the assets or stock of any class
of, or any partnership, membership or joint venture or other interest
in, any other Person except as otherwise provided in Section 8.3 or
this Section 8.4. Notwithstanding the foregoing, the Borrower and its
Subsidiaries may purchase or otherwise acquire all or substantially all
of the assets or stock of any class of, or joint venture or other
interest in, any Person if the following conditions have been met: (i)
the proposed transaction will not otherwise create a Default or an
Event of Default hereunder; and (ii) the business to be acquired
predominantly involves (A) the collection, transfer, hauling, disposal
or recycling of solid waste or thermal soil remediation, or (B) other
lines of businesses currently engaged in, or related, associated,
complementary or supplementary thereto, whether from an operational,
business, financial, technical or administrative standpoint; provided
that the Borrower or its Subsidiaries may purchase or otherwise acquire
all or substantially all of the assets or stock of any class of, or any
partnership, membership or joint venture or other interest in, any
Persons in unrelated businesses, not to exceed an aggregate amount of
$100,000,000 during the first year following the Effective Date, and
not to exceed a total aggregate amount of $200,000,000 during the term
of this Agreement. Notwithstanding anything herein to the contrary, the
ability of the Borrower and its Subsidiaries to incur any Indebtedness
in connection with any transaction permitted pursuant to this Section
8.4 shall be governed by Section 8.1.
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(b) Neither the Borrower nor any Subsidiary shall sell,
transfer, convey or lease any assets or group of assets, including the
sale or transfer of any property owned by the Borrower or any
Subsidiary in order then or thereafter to lease such property or lease
other property which the Borrower or such Subsidiary intends to use for
substantially the same purpose as the property being sold or
transferred, or sell or assign, with or without recourse, any
receivables, except (i) transfers of real or personal property among
Subsidiaries of the Borrower, (ii) so long as no Default or Event of
Default has occurred and is continuing, or would result therefrom,
sales of assets or pursuant to a sale-leaseback transaction, provided
that any net cash proceeds from any such sale or sale-leaseback shall,
within 180 days, either be used to pay down outstanding Loans under
this Agreement and outstanding loans under the Five Year Revolving
Credit Facility pro rata, or be reinvested by such Person in assets of
the business of the Borrower and its Subsidiaries, used for working
capital, invested in Investments in accordance with the provisions of
Section 8.3 or used for other general corporate purposes, (iii) sales
of accounts receivable (and contract rights, general intangibles or
chattel paper related thereto) more than sixty (60) days past due sold
or assigned in the ordinary course of collecting past due accounts, or
(iv) pursuant to a Permitted Receivables Transaction.
SECTION 8.5. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. Neither the
Borrower nor any of its Subsidiaries will (a) declare or pay any Distributions,
or (b) redeem, convert, retire or otherwise acquire shares of any class of its
capital stock (other than in connection with a merger permitted by Section 8.4
hereof or conversion into another form of equity of any preferred shares of the
Borrower existing as of the Effective Date pursuant to the terms thereof);
unless at the time of such Distribution or redemption no Default or Event of
Default exists or would be created hereunder. Notwithstanding the above, any
Subsidiary may make Distributions to the Borrower and the Borrower agrees that
neither the Borrower nor any Material Subsidiary will enter into any agreement
restricting Distributions from such Material Subsidiary to the Borrower.
SECTION 8.6. EMPLOYEE BENEFIT PLANS. None of the Borrower, any of its
Subsidiaries, or any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result
in a material liability for the Borrower on a consolidated basis; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or the Guarantor pursuant to Section 302(f) or
Section 4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (within the meaning of Section 4001 of
ERISA), other than with respect to the Terminated Plans, of all
Guaranteed Pension Plans exceeding the
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value of the aggregate assets of such Plans, disregarding for this
purpose the benefit liabilities and assets of any such Plan with assets
in excess of benefit liabilities.
The Borrower and its Subsidiaries will (i) promptly upon the request of
any Bank or the Administrative Agent, furnish to the Banks a copy of the most
recent actuarial statement required to be submitted under Section 103(d) of
ERISA and Annual Report, Form 5500, with all required attachments, in respect of
each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch, furnish
to the Banks any notice, report or demand sent or received in respect of a
Guaranteed Pension Plan under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066
and 4068 of ERISA, or in respect of a Multiemployer Plan, under Sections 4041A,
4202, 4219, 4242 or 4245 of ERISA.
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation or Letter of Credit is outstanding or the Banks
have any obligation to make Loans, or any Issuing Bank has any obligation to
issue, extend or renew any Letter of Credit hereunder, or the Banks have any
obligation to reimburse any Issuing Bank for drawings honored under any Letter
of Credit, it shall comply with the following covenants:
SECTION 9.1. INTEREST COVERAGE RATIO. As of the end of any fiscal
quarter of the Borrower, the Borrower will not permit the ratio of (a) EBIT for
the four fiscal quarters then ending to (b) Consolidated Total Interest Expense
for such period to be less than the applicable ratio set forth in the table
below:
FISCAL QUARTER(s) ENDING: RATIO:
------------------------- ------
6/30/02 - 12/31/02 2.50:1.00
3/31/03 and thereafter 3.00:1.00
SECTION 9.2. TOTAL DEBT TO EBITDA. As of the end of any fiscal quarter
of the Borrower, the Borrower will not permit the ratio of (a) Total Debt to (b)
EBITDA for the four fiscal quarters then ending to exceed 3.00:1.00.
SECTION 9.3. MINIMUM NET WORTH. The Borrower will not permit
Consolidated Net Worth at any time to be less than $3,500,000,000, plus 75% of
cumulative positive Consolidated Net Income for each fiscal quarter, beginning
with the fiscal quarter ended March 31, 2001.
SECTION 10. CONDITIONS PRECEDENT.
SECTION 10.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement and the obligations of the Banks to make any Loans and of any Issuing
Bank to issue Letters of Credit and of the Banks to participate in Letters of
Credit and otherwise be bound by the terms of this Agreement shall be subject to
the satisfaction of each of the following conditions precedent:
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SECTION 10.1.1. CORPORATE ACTION. All corporate action
necessary for the valid execution, delivery and performance by the
Borrower and the Guarantor of the Loan Documents shall have been duly
and effectively taken, and evidence thereof certified by authorized
officers of the Borrower and the Guarantor and satisfactory to the
Administrative Agent shall have been provided to the Banks.
SECTION 10.1.2. LOAN DOCUMENTS, ETC. Each of the Loan
Documents and other documents listed on the closing agenda shall have
been duly and properly authorized, executed and delivered by the
respective parties thereto and shall be in full force and effect in a
form satisfactory to the Majority Banks.
SECTION 10.1.3. CERTIFIED COPIES OF CHARTER DOCUMENTS. The
Banks shall have received from each of the Borrower and the Guarantor,
certified by a duly authorized officer of such Person to be true and
complete on the Effective Date, (a) its charter or other incorporation
documents, (b) its by-laws and (c) good standing certificates and
foreign qualifications.
SECTION 10.1.4. INCUMBENCY CERTIFICATE. The Banks shall have
received an incumbency certificate, dated as of the Effective Date,
signed by duly authorized officers of the Borrower and the Guarantor
giving the name and bearing a specimen signature of each individual who
shall be authorized: (a) to sign the Loan Documents on behalf of the
Borrower and the Guarantor; (b) to make Syndicated Loan Requests and
Letter of Credit Requests; (c) to make Competitive Bid Quote Requests;
and (d) to give notices and to take other action on the Borrower's or
the Guarantor's behalf under the Loan Documents.
SECTION 10.1.5. CERTIFICATES OF INSURANCE. The Administrative
Agent shall have received a certificate of insurance from an
independent insurance broker dated as of the Effective Date, or within
15 days prior thereto, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the
insurance coverage of the Borrower and its Subsidiaries.
SECTION 10.1.6. OPINION OF COUNSEL. The Banks shall have
received a favorable legal opinion from the deputy general counsel to
the Borrower and the Guarantor addressed to the Banks, dated the
Effective Date, in form and substance satisfactory to the
Administrative Agent.
SECTION 10.1.7. SATISFACTORY FINANCIAL CONDITION. Other than
as disclosed in the Disclosure Documents, no material adverse change
shall have occurred in the financial condition, results of operations,
business, properties or prospects of the Borrower and its Subsidiaries,
taken as a whole, since the Balance Sheet Date.
SECTION 10.1.8. PAYMENT OF CLOSING FEES. The Borrower shall
have paid the agreed upon closing fees to the Administrative Agent for
the account of the Banks
SECTION 10.1.9. TERMINATION OF THE 364 DAY LOAN AGREEMENT.
The 364 Day Loan Agreement, dated as of June 29, 2001, among
the Borrower, the Guarantor and certain of the Banks shall be paid in
full and terminated.
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SECTION 10.1.10. CLOSING CERTIFICATE. The Borrower shall have
delivered to the Administrative Agent a certificate, dated as of the
Effective Date, stating that, as of such date (a) the representations
and warranties set forth herein or in any other Loan Document are true
and correct, and (b) no Default or Event of Default has occurred and is
continuing.
SECTION 11. CONDITIONS TO ALL LOANS. The obligations of the Banks to
make or continue for an additional Interest Period in accordance with Section
2.7 any Loan and the obligation of any Issuing Bank to issue, extend, or renew
any Letter of Credit at the time of and subsequent to the Effective Date is
subject to the following conditions precedent:
SECTION 11.1. REPRESENTATIONS TRUE. Each of the representations and
warranties of the Borrower and the Guarantor (as applicable) contained in this
Agreement or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of such
Loan or the issuance, extension, or renewal of any Letter of Credit, as
applicable, with the same effect as if made at and as of that time (except to
the extent of changes resulting from transactions contemplated or permitted by
this Agreement and changes occurring in the ordinary course of business which
either individually or in the aggregate do not result in a Material Adverse
Effect, and to the extent that such representations and warranties relate
expressly and solely to an earlier date).
SECTION 11.2. PERFORMANCE; NO EVENT OF DEFAULT. The Borrower shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by it prior to or at the time of the making of any
Loan the issuance, extension or renewal of any Letter of Credit, and at the time
of the making of any Loan or the issuance, renewal or extension of any Letter of
Credit, there shall exist no Default or Event of Default or condition which
would result in a Default or an Event of Default upon consummation of such Loan
or issuance, extension, or renewal of any Letter of Credit, as applicable. Each
request for a Loan, or for issuance, extension or renewal of a Letter of Credit
shall constitute certification by the Borrower that the conditions specified in
Sections 11.1 and 11.2 will be duly satisfied on the date of such Loan or Letter
of Credit issuance, extension or renewal.
SECTION 11.3. NO LEGAL IMPEDIMENT. No change shall have occurred in any
law or regulations thereunder or interpretations thereof which in the reasonable
opinion of the Banks would make it illegal for the Banks to make Loans, for any
Issuing Bank to issue, extend or renew, or the Banks to participate in, Letters
of Credit hereunder.
SECTION 11.4. GOVERNMENTAL REGULATION. The Banks shall have received
from the Borrower and its Subsidiaries such statements in substance and form
reasonably satisfactory to the Banks as they shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency or
the Board of Governors of the Federal Reserve System or the Office of the
Superintendent of Financial Institutions.
SECTION 11.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall have been delivered to the Banks as of the date of the making of
any extension of credit in substance and in form satisfactory to the Banks,
including without limitation a
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Syndicated Loan Request in the form attached hereto as Exhibit A or a Letter of
Credit Request in the form attached hereto as Exhibit B and the Banks shall have
received all information and such counterpart originals or certified or other
copies of such documents as the Banks may reasonably request.
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SECTION 12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice and/or lapse of time,
"Defaults") shall occur:
(a) if the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or
other amounts owing hereunder (other than those specified in subsection
(a) above) within five (5) Business Days after the same shall become
due and payable whether at the Maturity Date or any accelerated date of
maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the
covenants contained in Sections 7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant
or agreement contained herein or in any of the other Loan Documents
(other than those specified in subsections (a), (b), and (c) above) and
such failure shall not be remedied within 30 days after written notice
of such failure shall have been given to the Borrower by the
Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this
Agreement or in any document or instrument delivered pursuant to or in
connection with this Agreement shall prove to have been false in any
material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to
pay when due, or within any applicable period of grace, any
Indebtedness or Swap Obligation in an aggregate amount greater than
$50,000,000, or fail to observe or perform any material term, covenant
or agreement contained in any one or more agreements by which it is
bound, evidencing or securing any Indebtedness or Swap Obligation in an
aggregate amount greater than $50,000,000 for such period of time as
would permit, or would have permitted (assuming the giving of
appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof or
terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Material Subsidiary
makes an assignment for the benefit of creditors, or admits in writing
its inability to pay or generally fails to pay its debts as they mature
or become due, or petitions or
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applies for the appointment of a trustee or other custodian, liquidator
or receiver of the Borrower, the Guarantor or any Material Subsidiary,
or of any substantial part of the assets of the Borrower, the Guarantor
or any Material Subsidiary or commences any case or other proceeding
relating to the Borrower, the Guarantor or any Material Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or takes any action to
authorize or in furtherance of any of the foregoing, or if any such
petition or application is filed or any such case or other proceeding
is commenced against the Borrower, the Guarantor or any Material
Subsidiary or the Borrower, the Guarantor or any Material Subsidiary
indicates its approval thereof, consent thereto or acquiescence
therein;
(h) if a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower
or the Guarantor or any Material Subsidiary bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree
or order for relief is entered in respect of the Borrower or the
Guarantor or any Material Subsidiary in an involuntary case under
federal bankruptcy laws of any jurisdiction as now or hereafter
constituted;
(i) if there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days, whether or not consecutive,
any final judgment against the Borrower or any Subsidiary which, with
other outstanding final judgments against the Borrower and its
Subsidiaries exceeds in the aggregate $25,000,000 after taking into
account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Banks shall have
determined in their reasonable discretion that such event reasonably
could be expected to result in liability of the Borrower or any
Subsidiary to the PBGC or the Plan in an aggregate amount exceeding
$25,000,000 and such event in the circumstances occurring reasonably
could constitute grounds for the partial or complete termination of
such Plan by the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer such Plan; or a
trustee shall have been appointed by the appropriate United States
District Court to administer such Plan; or the PBGC shall have
instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded otherwise than in accordance with the
terms thereof or with the express prior written agreement, consent or
approval of the Banks, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower, the Guarantor, or
any of their respective stockholders, or any court or any other
governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable in accordance with the
terms thereof; or
(l) if any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired
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beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of 25% or more
of the outstanding shares of common voting stock of the Borrower; or
during any period of twelve consecutive calendar months, individuals
who were directors of the Borrower on the first day of such period
(together with any new directors whose election by such board or whose
nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors still in office who
were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) shall cease to
constitute a majority of the board of directors of the Borrower;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrower, declare all amounts owing with respect to
this Agreement, and the other Loan Documents and all Reimbursement Obligations
to be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest, notice of intent to accelerate, notice of
acceleration to the extent permitted by law or other notice of any kind, all of
which are hereby expressly waived by the Borrower; provided that in the event of
any Event of Default specified in Section 12.1(g) or 12.1(h) with respect to the
Borrower or the Guarantor, all such amounts shall become immediately due and
payable automatically and without any requirement of notice from the
Administrative Agent or any Bank. Upon demand by the Majority Banks after the
occurrence of any Event of Default, the Borrower shall immediately provide to
the Administrative Agent cash in an amount equal to the aggregate Maximum
Drawing Amount to be held by the Administrative Agent as collateral security for
the Reimbursement Obligations.
SECTION 12.2. TERMINATION OF COMMITMENTS. If any Event of Default
pursuant to Sections 12.1(g) or 12.1(h) hereof shall occur with respect to the
Borrower or the Guarantor, any unused portion of the Total Commitment hereunder
shall forthwith terminate and the Banks and the Issuing Banks shall be relieved
of all obligations to make Loans or to issue, extend or renew Letters of Credit
hereunder; or if any other Event of Default shall occur, the Majority Banks may
by notice to the Borrower terminate the unused portion of the Total Commitment
hereunder, and, upon such notice being given, such unused portion of the Total
Commitment hereunder shall terminate immediately and the Banks and the Issuing
Banks shall be relieved of all further obligations to make Loans or to issue,
extend or renew Letters of Credit hereunder. No termination of any portion of
the Total Commitment hereunder shall relieve the Borrower of any of its existing
Obligations to the Banks, the Issuing Banks or the Administrative Agent
hereunder or elsewhere.
SECTION 12.3. REMEDIES. In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans and other Obligations pursuant
to Section 12.1, each Bank, upon notice to the other Banks, if owed any amount
with respect to the Loans or the Reimbursement Obligations, may proceed to
protect and enforce its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including, without limitation, as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise,
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proceed to enforce the payment thereof or any legal or equitable right of such
Bank, any recovery being subject to the terms of Section 29 hereof. No remedy
herein conferred upon any Bank or the Administrative Agent or the holder of any
Note is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
SECTION 13. SETOFF. Regardless of the adequacy of any collateral,
during the continuance of an Event of Default, any deposits or other sums
credited by or due from any Bank to the Borrower and any securities or other
property of the Borrower in the possession of such Bank may be applied to or set
off against the payment of the Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to the Banks or the Administrative Agent.
Any amounts set off with respect to the Obligations shall be distributed ratably
in accordance with Section 29 among all of the Banks by the Bank setting off
such amounts. If any Bank fails to share such setoff ratably, the Administrative
Agent shall have the right to withhold such Bank's share of the Borrower's
payments until each of the Banks shall have, in the aggregate, received a pro
rata repayment.
SECTION 14. EXPENSES. Whether or not the transactions contemplated
herein shall be consummated, the Borrower hereby promises to reimburse the
Administrative Agent and the Joint Lead Arrangers and Joint Book Managers for
all reasonable out-of-pocket fees and disbursements (including all reasonable
attorneys' fees) incurred or expended in connection with the syndication,
preparation, filing or recording, or interpretation of this Agreement, the other
Loan Documents, or any amendment, modification, approval, consent or waiver
hereof or thereof. The Borrower further promises to reimburse the Administrative
Agent and the Banks for all reasonable out-of-pocket fees and disbursements
(including all reasonable legal fees and the allocable cost of in-house
attorneys' fees) incurred or expended in connection with the enforcement of any
Obligations or the satisfaction of any indebtedness of the Borrower hereunder or
under any other Loan Document, or in connection with any litigation, proceeding
or dispute hereunder in any way related to the credit hereunder. The Borrower
also promises to pay the Administrative Agent all reasonable out-of-pocket fees
and disbursements, incurred or expended in connection with the Competitive Bid
Loan procedure under Section 4 hereof.
SECTION 15. THE AGENTS.
SECTION 15.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby
irrevocably appoints and authorizes Fleet to act as Administrative Agent,
provided, however, the Administrative Agent is hereby authorized to serve only
as administrative agent for the Banks and to exercise such powers as are
reasonably incidental thereto and as are set forth in this Agreement and the
other Loan Documents. The Administrative Agent hereby acknowledges that it does
not have the authority to negotiate any agreement which would bind the Banks or
agree to any amendment, waiver or modification of any of the Loan Documents or
bind the Banks except as set forth in this Agreement or the Loan Documents.
Except as provided in this Agreement, and in the other Loan Documents, the
Administrative Agent shall take action or refrain from acting only upon
instructions of the Banks. It is agreed that the duties, rights, privileges and
immunities of the Issuing Banks, in their capacity as issuers of Letters of
Credit hereunder, shall be identical to the duties, rights, privileges and
immunities of the Administrative Agent as
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provided in this Section 15. The Administrative Agent shall not have any duties
or responsibilities or any fiduciary relationship with any Bank except those
expressly set forth in this Agreement and the other Loan Documents. Neither the
Administrative Agent nor any of its affiliates shall be responsible to the Banks
for any recitals, statements, representations or warranties made by the Borrower
or any other Person whether contained herein or otherwise or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, the other Loan Documents or any other document referred to or
provided for herein or therein or for any failure by the Borrower or any other
Person to perform its obligations hereunder or thereunder. The Administrative
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. The Administrative Agent, the Agents and any of their
directors, officers, employees or agents shall not be responsible for any action
taken or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct. The
Administrative Agent in its separate capacity as a Bank shall have the same
rights and powers hereunder as any other Bank. The Co-Documentation Agents and
the Co-Syndication Agents shall not have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement in such capacity,
other than, with respect to the Co-Documentation Agents and BOA, those
applicable to all Banks as Banks.
SECTION 15.2. ACTIONS BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement as reasonably deemed appropriate unless it shall first have received
the consent of the Majority Banks (or, when expressly required hereby, all of
the Banks), and shall be indemnified to its reasonable satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any of the Loan Documents in accordance with the instruction
of the Majority Banks (or, when expressly required hereby or thereby, all of the
Banks), and such instruction and any action taken or failure to act pursuant
thereto shall be binding upon the Banks and all future holders of any Loan
Obligation or any Letter of Credit Participation.
SECTION 15.3. INDEMNIFICATION. Without limiting the obligations of the
Borrower hereunder or under any other Loan Document, the Banks agree to
indemnify the Administrative Agent, its affiliates and its respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
ratably in accordance with their respective Commitment Percentages for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any other Loan Document or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or the enforcement
of any of the terms hereof or thereof or of any such other documents; provided,
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Administrative Agent (or
any agent thereof), IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL SUCH
INDEMNIFIED
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PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.
SECTION 15.4. REIMBURSEMENT. Without limiting the provisions of
Sections 5.1(a), 5.13, and 13, the Administrative Agent shall not be obliged to
make available to any Person any sum which the Administrative Agent is expecting
to receive for the account of that Person until the Administrative Agent has
determined that it has received that sum. The Administrative Agent may, however,
disburse funds prior to determining that the sums which the Administrative Agent
expects to receive have been finally and unconditionally paid to the
Administrative Agent, if the Administrative Agent wishes to do so. If and to the
extent that the Administrative Agent does disburse funds and it later becomes
apparent that the Administrative Agent did not then receive a payment in an
amount equal to the sum paid out, then any Person to whom the Administrative
Agent made the funds available shall, on demand from the Administrative Agent,
refund to the Administrative Agent the sum paid to that Person. If, in the
opinion of the Administrative Agent, the distribution of any amount received by
it in such capacity hereunder or under the other Loan Documents might involve it
in liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be determined by
such court.
SECTION 15.5. DELINQUENT BANKS. Intentionally Omitted.
SECTION 15.6. DOCUMENTS. The Administrative Agent will forward to each
Bank, promptly after receipt thereof, a copy of each notice or other document
furnished to the Administrative Agent for such Bank hereunder; provided,
however, that, notwithstanding the foregoing, the Administrative Agent may
furnish to the Banks a monthly summary with respect to Letters of Credit issued
hereunder in lieu of copies of the related Letter of Credit Applications.
SECTION 15.7. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.
Each Bank represents that it has, independently and without reliance on the
Administrative Agent, the Agents or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of the Borrower and the Guarantor and the
decision to enter into this Agreement and the other Loan Documents and agrees
that it will, independently and without reliance upon the Administrative Agent,
the Agents or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action under this Agreement or any other Loan
Document. Except as herein expressly provided to the contrary, the
Administrative Agent shall not be required to keep informed as to the
performance or observance by the Borrower and the Guarantor of this Agreement,
the other Loan Documents or any other document referred to or provided for
herein or therein or by any other Person of any other agreement or to make
inquiry of, or to inspect the properties or books of, any Person. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the Administrative
Agent
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shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning any person which may come into the possession of
the Administrative Agent or any of their affiliates. Each Bank shall have access
to all documents relating to the Administrative Agent's performance of their
duties hereunder at such Bank's request. Unless any Bank shall promptly object
to any action taken by the Administrative Agent hereunder of which such Bank has
actual knowledge (other than actions which require the prior consent of such
Bank in accordance with the terms hereof or to which the provisions of Section
15.9 are applicable and other than actions which constitute gross negligence or
willful misconduct by the Administrative Agent), such Bank shall be presumed to
have approved the same.
SECTION 15.8. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving 60 days' prior written notice thereof to
the Banks and the Borrower. Upon any such resignation, the Majority Banks (other
than the resigning Administrative Agent) shall have the right to appoint a
successor Administrative Agent from among the Banks, subject to the consent of
the Borrower. If no successor to the Administrative Agent shall have been so
appointed by the Majority Banks and approved by the Borrower and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Banks, appoint a successor Administrative Agent from among
the remaining Banks, which shall be a financial institution having a combined
capital and surplus in excess of $1,000,000,000. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the retiring Administrative
Agent's resignation, the provisions of this Agreement shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent. Any new Issuing Bank appointed
pursuant to this Section 15.8 shall immediately issue new Letters of Credit in
place of Letters of Credit previously issued or, if acceptable to the resigning
Issuing Bank, issue letters of credit in favor of the resigning Issuing Bank as
security for the outstanding Letters of Credit and shall in due course replace
all Letters of Credit previously issued by the resigning Issuing Bank.
SECTION 15.9. ACTION BY THE BANKS, CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) No failure or delay by the Administrative Agent, any Issuing Bank or any
Bank in exercising any right or power hereunder 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, the Issuing
Banks and the Banks hereunder are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrower 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 or issuance of a Letter of Credit shall not
be construed as a waiver of any Default or Event of Default, regardless of
whether the Administrative Agent, any Lender or the
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Issuing Bank may have had notice or knowledge of such Default or Event of
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Majority Banks or by the Borrower and the
Administrative Agent with the consent of the Majority Banks; provided that no
such agreement shall (i) increase the Commitment of any Bank without the written
consent of such Bank, (ii) reduce the principal amount of any Loan or
Reimbursement Obligations, or reduce the rate of interest on the Loans or reduce
any fees payable hereunder, without the written consent of each Bank affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Bank affected
thereby; (iv) release the Borrower from its Obligations or the Guarantor from
its Guaranteed Obligations hereunder without the written consent of each Bank,
or (v) change any of the provisions of this Section 15.9 or any provision of
this Agreement requiring action by all the Banks, or the percentage of Banks
constituting "Majority Banks", without the written consent of each Bank;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or any Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the Issuing
Banks, as the case may be.
SECTION 16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Banks, the Agents, the Issuing Banks, the Joint Lead Arrangers and
Joint Book Managers and the Administrative Agent and their affiliates, as well
as the Banks' and the Administrative Agent's and their affiliates' shareholders,
directors, agents, officers, subsidiaries and affiliates, from and against all
damages, losses, settlement payments, obligations, liabilities, claims, suits,
penalties, assessments, citations, directives, demands, judgments, actions or
causes of action, whether statutorily created or under the common law, and
reasonable costs and expenses incurred, suffered, sustained or required to be
paid by an indemnified party by reason of or resulting from the transactions
contemplated hereby, except any of the foregoing which result from the gross
negligence or willful misconduct of such indemnified party. In any
investigation, enforcement matter, proceeding or litigation, or the preparation
therefor, the Banks and the Administrative Agent shall be entitled to select
their own counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel
(including the non-duplicative allocated cost of internal counsel), and
settlement costs. In the event of the commencement of any such proceeding or
litigation against the Banks or Administrative Agent by third parties, the
Borrower shall be entitled to participate in such proceeding or litigation with
counsel of their choice at their expense. The covenants of this Section 16 shall
survive payment or satisfaction of payment of amounts owing with respect to any
Note or the Loans and satisfaction of all the Obligations hereunder and under
the Loan Documents, IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL SUCH
INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE OR CONTRIBUTORY
NEGLIGENCE.
SECTION 17. WITHHOLDING TAXES. The Borrower hereby agrees that:
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(a) Any and all payments made by the Borrower hereunder shall
be made free and clear of, and without deduction for, any and all
present or future taxes, levies, fees, duties, imposts, deductions,
charges or withholdings of any nature whatsoever, excluding, in the
case of the Administrative Agent or the Banks, (i) taxes imposed on, or
measured by, its net income or profits, (ii) franchise taxes imposed on
it, (iii) taxes imposed by any jurisdiction as a direct consequence of
it, or any of its affiliates, having a present or former connection
with such jurisdiction, including, without limitation, being organized,
existing or qualified to do business, doing business or maintaining a
permanent establishment or office in such jurisdiction, and (iv) taxes
imposed by reason of its failure to comply with any applicable
certification, identification, information, documentation or other
reporting requirement (all such non-excluded taxes being hereinafter
referred to as "Indemnifiable Taxes"). In the event that any
withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Indemnifiable Taxes pursuant to
any applicable law, or governmental rule or regulation, then the
Borrower will (i) direct to the relevant taxing authority the full
amount required to be so withheld or deducted, (ii) forward to the
Administrative Agent for delivery to the applicable Bank an official
receipt or other documentation satisfactory to the Administrative Agent
and the applicable Bank evidencing such payment to such taxing
authority, and (iii) direct to the Administrative Agent for the account
of the relevant Banks such additional amount or amounts as is necessary
to ensure that the net amount actually received by each relevant Bank
will equal the full amount such Bank would have received had no such
withholding or deduction (including any Indemnifiable Taxes on such
additional amounts) been required. Moreover, if any Indemnifiable Taxes
are directly asserted against the Administrative Agent or any Bank with
respect to any payment received by the Administrative Agent or such
Bank by reason of the Borrower's failure to properly deduct and
withhold such Indemnifiable Taxes from such payment, the Administrative
Agent or such Bank may pay such Indemnifiable Taxes and the Borrower
will promptly pay all such additional amounts (including any penalties,
interest or reasonable expenses) as is necessary in order that the net
amount received by such Person after the payment of such Indemnifiable
Taxes (including any Indemnifiable Taxes on such additional amount)
shall equal the amount such Person would have received had not such
Indemnifiable Taxes been asserted. Any such payment shall be made
promptly after the receipt by the Borrower from the Administrative
Agent or such Bank, as the case may be, of a written statement setting
forth in reasonable detail the amount of the Indemnifiable Taxes and
the basis of the claim.
(b) The Borrower shall pay any present or future stamp or
documentary taxes or any other excise or any other similar levies which
arise from any payment made hereunder or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrower hereby indemnifies and holds harmless the
Administrative Agent and each Bank for the full amount of Indemnifiable
Taxes or Other Taxes (including, without limitation, any Indemnifiable
Taxes or Other Taxes imposed on amounts payable under this Section 17)
paid by the Administrative
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Agent or such Bank, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with
respect thereto, by reason of the Borrower's failure to properly deduct
and withhold Indemnifiable Taxes pursuant to paragraph (a) above or to
properly pay Other Taxes pursuant to paragraph (b) above. Any
indemnification payment from the Borrower under the preceding sentence
shall be made promptly after receipt by the Borrower from the
Administrative Agent or Bank of a written statement setting forth in
reasonable detail the amount of such Indemnifiable Taxes or such Other
Taxes, as the case may be, and the basis of the claim.
(d) If the Borrower pays any amount under this Section 17 to
the Administrative Agent or any Bank and such payee knowingly receives
a refund of any taxes with respect to which such amount was paid, the
Administrative Agent or such Bank, as the case may be, shall pay to the
Borrower the amount of such refund promptly following the receipt
thereof by such payee.
(e) In the event any taxing authority notifies the Borrower or
the Guarantor that any of them has improperly failed to deduct or
withhold any taxes (other than Indemnifiable Taxes) from a payment made
hereunder to the Administrative Agent or any Bank, the Borrower shall
timely and fully pay such taxes to such taxing authority.
(f) The Administrative Agent or the Banks shall, upon the
request of the Borrower, take reasonable measures to avoid or mitigate
the amount of Indemnifiable Taxes required to be deducted or withheld
from any payment made hereunder if such measures can be taken without
such Person in its sole judgment suffering any legal, regulatory or
economic disadvantage.
(g) Without prejudice to the survival of any other agreement
of the parties hereunder, the agreements and obligations of the
Borrower contained in this Section 17 shall survive the payment in full
of the Obligations.
SECTION 18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SECTION 18.1. CONFIDENTIALITY. Each of the Banks and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrower or any of its Subsidiaries pursuant to this Agreement that is
identified by such Person as being confidential at the time the same is
delivered to the Banks or the Administrative Agent, provided that nothing herein
shall limit the disclosure of any such information (a) after such information
shall have become public other than through a violation of this Section 18, or
becomes available to any of the Banks or the Administrative Agent on a
nonconfidential basis from a source other than the Borrower, (b) to the extent
required by statute, rule, regulation or judicial process, (c) to counsel for
any of the Banks or the Administrative Agent, (d) to bank examiners or any other
regulatory authority having jurisdiction over any Bank or the Administrative
Agent, or to auditors or accountants, (e) to the Administrative Agent, any Bank
or any Financial Affiliate, (f) in connection with any litigation to which any
one or more of the Banks, the
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Administrative Agent or any Financial Affiliate is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (g) to an affiliate of any Bank or the Administrative Agent, (h) to
any actual or prospective assignee or participant or any actual or prospective
counterparty (or its advisors) to any swap or derivative transactions referenced
to credit or other risks or events arising under this Agreement or any other
Loan Document so long as such assignee, participant or counterparty, as the case
may be, agrees to be bound by the provisions of Section 18.1, or (i) with the
consent of the Borrower.
SECTION 18.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Banks and the Administrative Agent
shall, prior to disclosure thereof, notify the Borrower of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental agency)
or pursuant to legal process.
SECTION 18.3. OTHER. In no event shall any Bank or the Administrative
Agent be obligated or required to return any materials furnished to it or any
Financial Affiliate by the Borrower or any of its Subsidiaries. The obligations
of each Bank under this Section 18 shall supersede and replace the obligations
of such Bank under any confidentiality letter in respect of this financing
signed and delivered by such Bank to the Borrower prior to the date hereof and
shall be binding upon any assignee of, or purchaser of any participation in, any
interest in any of the Loans or Reimbursement Obligations from any Bank.
SECTION 19. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
all covenants, agreements, representations and warranties made herein, in the
other Loan Documents or in any documents or other papers delivered by or on
behalf of the Borrower or the Guarantor pursuant hereto shall be deemed to have
been relied upon by the Banks, the Issuing Banks and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by them, and
shall survive the making by the Banks of the Loans and the issuance, extension
or renewal of any Letters of Credit by any Issuing Bank, as herein contemplated,
and shall continue in full force and effect so long as any amount due under this
Agreement, any Obligation, or any Letter of Credit remains outstanding and
unpaid or any Bank has any obligation to make any Loans or any Issuing Bank has
any obligation to issue, extend, or renew any Letters of Credit hereunder. All
statements contained in any certificate or other paper delivered by or on behalf
of the Borrower pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower hereunder.
SECTION 20. ASSIGNMENT AND PARTICIPATION. It is understood and agreed
that each Bank shall have the right to assign at any time all or a portion of
its Commitment Percentage and interests in the risk relating to the Loans,
outstanding Letters of Credit and its Commitment hereunder in an amount equal to
or greater than $5,000,000 (or, if a Bank's Commitment is less than $5,000,000,
in a minimum amount equal to such Bank's Commitment, provided that prior to any
Commitment reductions pursuant to Section 2.3.1, such Bank's Commitment was at
least $5,000,000) to additional banks, other financial institutions or Bank
Affiliates with the prior written approval of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower, which
approvals shall not be unreasonably withheld. Any Bank may at
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any time, and from time to time, assign to any branch, lending office, or Bank
Affiliate all or any part of its rights and obligations under the Loan Documents
by notice to the Administrative Agent and the Borrower. It is further agreed
that each bank or other financial institution which executes and delivers to the
Administrative Agent and the Borrower hereunder an Assignment and Acceptance
substantially in the form of Exhibit D hereto (an "Assignment and Acceptance")
together with an assignment fee in the amount of $3,500 payable by the assigning
Bank to the Administrative Agent, shall, on the date specified in such
Assignment and Acceptance, become a party to this Agreement and the other Loan
Documents for all purposes of this Agreement and the other Loan Documents, and
its portion of the Commitment, the Loans and Letters of Credit shall be as set
forth in such Assignment and Acceptance. The Bank assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (except for
indemnity rights arising out of the period prior to such assignment) and be
released from its obligations under this Agreement and the other Loan Documents.
Upon the execution and delivery of such Assignment and Acceptance (a) to the
extent applicable, the Borrower shall issue Notes (and replacement Notes) or the
Administrative Agent shall make appropriate entries on the applicable loan
account(s) to reflect such assignment of Loan(s); and (b) this Agreement and
Schedule 1 shall be deemed to be appropriately amended to reflect (i) the status
of the bank, financial institution or Bank Affiliate as a party hereto and (ii)
the status and rights of the Banks hereunder.
Each Bank shall also have the right to grant participations to one or
more banks, other financial institutions or Bank Affiliates in its Commitment,
the Loans and outstanding Letters of Credit. The documents evidencing any such
participation shall limit such participating bank's, financial institution's or
Bank Affiliate's, voting rights with respect to this Agreement to the matters
set forth in Section 15.9(b)(i) - (v).
Notwithstanding the foregoing, no assignment or participation shall
operate to increase the Total Commitment hereunder or otherwise alter the
substantive terms of this Agreement, and no Bank which retains a Commitment
hereunder shall have a Commitment of less than $5,000,000, except as a result of
reductions in the Total Commitment pursuant to Section 2.3 hereof.
Anything contained in this Section 20 to the contrary notwithstanding,
any Bank may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or under any of the
other Loan Documents.
The Borrower agrees that in addition to disclosures made in accordance
with standard and customary banking practices any Bank may disclose information
obtained by such Bank pursuant to this Agreement to assignees or participants
and potential assignees or participants hereunder; provided that such assignees
or participants or potential assignees or participants shall agree to be bound
by Section 18 hereof.
SECTION 21. PARTIES IN INTEREST. All the terms of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto
and thereto; provided, that the
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Borrower shall not assign or transfer its rights or obligations hereunder or
thereunder without the prior written consent of each of the Banks.
SECTION 22. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the other Loan Documents shall be in writing
and shall be delivered in hand, mailed by United States first class mail,
postage prepaid, or sent by telegraph, telex or facsimile and confirmed by
letter, addressed as follows:
(a) if to the Borrower or the Guarantor, at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Treasurer, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇
▇'▇▇▇▇▇▇▇, Executive Vice President, General Counsel and Secretary,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; or
(b) if to the Administrative Agent at Fleet National Bank, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Managing Director, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; or
(c) if to any Bank, at the last address provided to the
Administrative Agent;
or such other address for notice as shall have last been furnished in writing to
the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer, (b) if sent by registered or certified first-class mail,
postage prepaid, five Business Days after the posting thereof, and (c) if sent
by telex, facsimile, or cable, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
SECTION 23. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Banks, the Issuing
Banks or the Administrative Agent would otherwise have. The captions in this
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof. This Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought. This Agreement, to the extent
signed and delivered by means of a facsimile machine, shall be treated in all
manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. At the request of any party hereto,
each other party hereto shall re-execute original forms thereof and deliver them
to all other parties. No party hereto shall raise the use of a facsimile machine
to deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile
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machine as a defense to the formation of a contract and each party forever
waives such defense.
SECTION 24. CONSENTS, ETC. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in this
Section 24, subject to the provisions of Section 15.9. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement to be given by the Banks may
be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower and the Majority Banks. To the
extent permitted by law, no course of dealing or delay or omission on the part
of any of the Banks, the Issuing Banks or the Administrative Agent in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
SECTION 25. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE BORROWER AND THE
GUARANTOR HEREBY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK, ANY ISSUING BANK, THE
ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH BANK, SUCH ISSUING BANK, THE ADMINISTRATIVE AGENT OR SUCH AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE BANKS, AND THE ISSUING BANKS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BECAUSE OF, AMONG OTHER THINGS, THE BORROWER'S AND THE GUARANTOR'S WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SECTION 26. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE
OF NEW YORK AND
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SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE
BORROWER AND THE GUARANTOR CONSENT AND AGREE THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
IN ANY SUCH SUIT BEING MADE UPON THE BORROWER IN ACCORDANCE WITH LAW AT THE
ADDRESS SPECIFIED IN SECTION 22. THE BORROWER AND THE GUARANTOR HEREBY WAIVE ANY
OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR
ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
SECTION 27. SEVERABILITY. The provisions of this Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
SECTION 28. GUARANTY.
SECTION 28.1. GUARANTY. For value received and hereby acknowledged and
as an inducement to the Banks and the Issuing Banks to make the Loans available
to the Borrower, and issue, extend or renew Letters of Credit for the account of
the Borrower, the Guarantor hereby unconditionally and irrevocably guarantees
(a) the full punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrower now or hereafter
existing whether for principal, interest, fees, expenses or otherwise, and (b)
the strict performance and observance by the Borrower of all agreements,
warranties and covenants applicable to the Borrower in the Loan Documents and
(c) the obligations of the Borrower under the Loan Documents (such Obligations
collectively being hereafter referred to as the "Guaranteed Obligations").
SECTION 28.2. GUARANTY ABSOLUTE. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms
hereof, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Bank, any
Issuing Bank or the Administrative Agent with respect thereto. The liability of
the Guarantor under the guaranty granted under this Agreement with regard to the
Guaranteed Obligations shall be absolute and unconditional irrespective of:
(a) any change in the time, manner or place of payment of, or
in any other term of, all or any of its Guaranteed Obligations or any
other amendment or waiver of or any consent to departure from this
Agreement or any other Loan Document (with regard to such Guaranteed
Obligations);
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(b) any release or amendment or waiver of or consent to
departure from any other guaranty for all or any of its Guaranteed
Obligations;
(c) any change in ownership of the Borrower;
(d) any acceptance of any partial payment(s) from the Borrower
or the Guarantor; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of its
Obligations under any Loan Document.
The guaranty under this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any Guaranteed
Obligation is rescinded or must otherwise be returned by the Banks, the Issuing
Banks or the Administrative Agent upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
SECTION 28.3. EFFECTIVENESS; ENFORCEMENT. The guaranty under this
Agreement shall be effective and shall be deemed to be made with respect to each
Loan and each Letter of Credit as of the time it is made, issued or extended, or
becomes a Letter of Credit under this Agreement, as applicable. No invalidity,
irregularity or unenforceability by reason of any bankruptcy or similar law, or
any law or order of any government or agency thereof purporting to reduce, amend
or otherwise affect any liability of the Borrower, and no defect in or
insufficiency or want of powers of the Borrower or irregular or improperly
recorded exercise thereof, shall impair, affect, be a defense to or claim
against such guaranty. The guaranty under this Agreement is a continuing
guaranty and shall (a) survive any termination of this Agreement, and (b) remain
in full force and effect until payment in full of, and performance of, all
Guaranteed Obligations and all other amounts payable under this Agreement. The
guaranty under this Agreement is made for the benefit of the Administrative
Agent, the Issuing Banks and the Banks and their successors and assigns, and may
be enforced from time to time as often as occasion therefor may arise and
without requirement on the part of the Administrative Agent, the Issuing Banks
or the Banks first to exercise any rights against the Borrower, or to resort to
any other source or means of obtaining payment of any of the said obligations or
to elect any other remedy.
SECTION 28.4. WAIVER. Except as otherwise specifically provided in any
of the Loan Documents, the Guarantor hereby waives promptness, diligence,
protest, notice of protest, all suretyship defenses, notice of acceptance and
any other notice with respect to any of its Guaranteed Obligations and the
guaranty under this Agreement and any requirement that the Banks, the Issuing
Banks or the Administrative Agent protect, secure, perfect any security interest
or Lien or any property subject thereto or exhaust any right or take any action
against the Borrower or any other Person. The Guarantor also irrevocably waives,
to the fullest extent permitted by law, all defenses which at any time may be
available to it in respect of its Guaranteed Obligations by virtue of any
statute of limitations, valuation, stay, moratorium law or other similar law now
or hereafter in effect.
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SECTION 28.5. EXPENSES. The Guarantor hereby promises to reimburse (a)
the Administrative Agent for all reasonable out-of-pocket fees and disbursements
(including all reasonable attorneys' fees), incurred or expended in connection
with the preparation, filing or recording, or interpretation of the guaranty
under this Agreement, the other Loan Documents to which the Guarantor is a
party, or any amendment, modification, approval, consent or waiver hereof or
thereof, and (b) the Administrative Agent, the Issuing Banks and the Banks and
their respective affiliates for all reasonable out-of-pocket fees and
disbursements (including reasonable attorneys' fees), incurred or expended in
connection with the enforcement of its Guaranteed Obligations (whether or not
legal proceedings are instituted). The Guarantor will pay any taxes (including
any interest and penalties in respect thereof) other than the Banks' taxes based
on overall income or profits, payable on or with respect to the transactions
contemplated by the guaranty under this Agreement, the Guarantor hereby agreeing
jointly and severally to indemnify each Bank with respect thereto.
SECTION 28.6. CONCERNING JOINT AND SEVERAL LIABILITY OF THE GUARANTOR.
(a) The Guarantor hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and
several liability with the Borrower, with respect to the payment and
performance of all of its Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations arising under this Section 28),
it being the intention of the parties hereto that all such Guaranteed
Obligations shall be the joint and several Guaranteed Obligations of
the Guarantor and the Borrower without preferences or distinction among
them.
(b) If and to the extent that the Borrower shall fail to make
any payment with respect to any of its Obligations as and when due or
to perform any of its Guaranteed Obligations in accordance with the
terms thereof, then in each such event the Guarantor will make such
payment with respect to, or perform, such Guaranteed Obligation.
(c) The Guaranteed Obligations of the Guarantor under the
provisions of this Section 28 constitute full recourse obligations of
the Guarantor enforceable against the Guarantor to the full extent of
its properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Agreement,
the Guarantor hereby waives notice of acceptance of its joint and
several liability, notice of any Loans made, or Letters of Credit
issued under this Agreement, notice of any action at any time taken or
omitted by the Administrative Agent, the Issuing Banks or the Banks
under or in respect of any of the Guaranteed Obligations, and,
generally, to the extent permitted by applicable law, all demands,
notices and other formalities of every kind in connection with this
Agreement. The Guarantor hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the
Guaranteed Obligations, the acceptance of any payment of any of the
Guaranteed Obligations, the acceptance of any partial payment thereon,
any waiver, consent or other action or acquiescence by the
Administrative Agent, the Issuing Banks or the Banks at any time or
times in respect of any Default or Event of Default by the Borrower or
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the Guarantor in the performance or satisfaction of any term, covenant,
condition or provision of this Agreement or any other Loan Document,
any and all other indulgences whatsoever by the Administrative Agent,
the Issuing Banks or the Banks in respect of any of the Guaranteed
Obligations, and the taking, addition, substitution or release, in
whole or in part, at any time or times, of any security for any of the
Guaranteed Obligations or the addition, substitution or release, in
whole or in part, of the Borrower or the Guarantor. Without limiting
the generality of the foregoing, the Guarantor assents to any other
action or delay in acting or failure to act on the part of the Banks,
the Issuing Banks or the Administrative Agent with respect to the
failure by the Borrower or the Guarantor to comply with its respective
Obligations or Guaranteed Obligations, including, without limitation,
any failure strictly or diligently to assert any right or to pursue any
remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 28,
afford grounds for terminating, discharging or relieving the Guarantor,
in whole or in part, from any of the Guaranteed Obligations under this
Section 28, it being the intention of the Guarantor that, so long as
any of the Guaranteed Obligations hereunder remain unsatisfied, the
Guaranteed Obligations of the Guarantor under this Section 28 shall not
be discharged except by performance and then only to the extent of such
performance. The Guaranteed Obligations of the Guarantor under this
Section 28 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation, reconstruction or
similar proceeding with respect to the Borrower or the Guarantor or the
Banks, the Issuing Banks or the Administrative Agent. The joint and
several liability of the Guarantor hereunder shall continue in full
force and effect notwithstanding any absorption, merger, consolidation,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of the Borrower or the Guarantor,
the Banks, the Issuing Banks or the Administrative Agent.
(e) The Guarantor shall be liable under this Section 28 only
for the maximum amount of such liabilities that can be incurred under
applicable law without rendering this Section 28 voidable under
applicable law relating to fraudulent conveyance and fraudulent
transfer, and not for any greater amount. Accordingly, if any
obligation under any provision under this Section 28 shall be declared
to be invalid or unenforceable in any respect or to any extent, it is
the stated intention and agreement of the Guarantor, the Administrative
Agent, the Issuing Banks and the Banks that any balance of the
obligation created by such provision and all other obligations of the
Guarantor under this Section 28 to the Banks, the Issuing Banks or the
Administrative Agent shall remain valid and enforceable, and that all
sums not in excess of those permitted under applicable law shall remain
fully collectible by the Banks, the Issuing Banks and the
Administrative Agent from the Borrower or the Guarantor, as the case
may be.
(f) The provisions of this Section 28 are made for the benefit
of the Administrative Agent, the Issuing Banks and the Banks and their
successors and assigns, and may be enforced in good faith by them from
time to time against the Guarantor as often as occasion therefor may
arise and without requirement on the part of the Administrative Agent,
the Issuing Banks or the Banks first to marshal any of their claims or
to exercise any of their rights against the Borrower or the Guarantor
or to exhaust any remedies available to them against the Borrower or
the
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Guarantor or to resort to any other source or means of obtaining
payment of any of the obligations hereunder or to elect any other
remedy. The provisions of this Section 28 shall remain in effect until
all of the Guaranteed Obligations shall have been paid in full or
otherwise fully satisfied and the Commitments have expired and all
outstanding Letters of Credit have expired, matured or otherwise been
terminated. If at any time, any payment, or any part thereof, made in
respect of any of the Guaranteed Obligations, is rescinded or must
otherwise be restored or returned by the Banks, the Issuing Banks or
the Administrative Agent upon the insolvency, bankruptcy or
reorganization of the Borrower or the Guarantor, or otherwise, the
provisions of this Section 28 will forthwith be reinstated in effect,
as though such payment had not been made.
SECTION 28.7. WAIVER. Until the final payment and performance in full
of all of the Obligations, the Guarantor shall not exercise and the Guarantor
hereby waives any rights the Guarantor may have against the Borrower arising as
a result of payment by the Guarantor hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove any
claim in competition with the Administrative Agent, the Issuing Banks or any
Bank in respect of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceedings of any nature; the Guarantor will not claim
any setoff, recoupment or counterclaim against the Borrower in respect of any
liability of the Borrower to the Guarantor; and the Guarantor waives any benefit
of and any right to participate in any collateral security which may be held by
the Administrative Agent, the Issuing Banks or any Bank.
SECTION 28.8. SUBROGATION; SUBORDINATION. The payment of any amounts
due with respect to any indebtedness of the Borrower for money borrowed or
credit received now or hereafter owed to the Guarantor is hereby subordinated to
the prior payment in full of all of the Obligations. The Guarantor agrees that,
after the occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, ▇▇▇ for or otherwise attempt to
collect any such indebtedness of the Borrower to the Guarantor until all of the
Obligations shall have been paid in full. If, notwithstanding the foregoing
sentence, the Guarantor shall collect, enforce or receive any amounts in respect
of such indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by the Guarantor as trustee for the
Banks, the Issuing Banks and the Administrative Agent and be paid over to the
Administrative Agent at Default, for the benefit of the Banks, the Issuing
Banks, and the Administrative Agent on account of the Obligations without
affecting in any manner the liability of the Guarantor under the other
provisions hereof.
SECTION 29. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein,
each payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari
passu among the Banks, in accordance with the aggregate outstanding
principal amount of the Obligations owing to each Bank divided by the
aggregate outstanding principal amount of all Obligations.
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(b) Each Bank agrees that if it shall, through the exercise of
a right of banker's lien, setoff or counterclaim against any Borrower
(pursuant to Section 13 or otherwise), including a secured claim under
Section 506 of the Bankruptcy Code or other security or interest
arising from or in lieu of, such secured claim, received by such Bank
under any applicable bankruptcy, insolvency or other similar law or
otherwise, obtain payment (voluntary or involuntary) in respect of the
Notes, Loans, Reimbursement Obligations and other Obligations held by
it (other than pursuant to Section 5.5, Section 5.6 or Section 5.8) as
a result of which the unpaid principal portion of the Notes and the
Obligations held by it shall be proportionately less than the unpaid
principal portion of the Notes and the Obligations held by any other
Bank, it shall be deemed to have simultaneously purchased from such
other Bank a participation in the Notes and the Obligations held by
such other Bank, so that the aggregate unpaid principal amount of the
Notes and the Obligations and participations in Notes and Obligations
held by each Bank shall be in the same proportion to the aggregate
unpaid principal amount of the Notes and the Obligations then
outstanding as the principal amount of the Notes and the Obligations
held by it prior to such exercise of banker's lien, setoff or
counterclaim was to the principal amount of all Notes and Obligations
outstanding prior to such exercise of banker's lien, setoff or
counterclaim; provided, however, that if any such purchase or purchases
or adjustments shall be made pursuant to this Section 29 and the
payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent
of such recovery and the purchase price or prices or adjustments
restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Person holding such a
participation in the Obligations deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim
with respect to any and all moneys owing by the Borrower to such Person
as fully as if such Person had made a Loan directly to the Borrower in
the amount of such participation.
SECTION 30. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first set forth above.
THE BORROWER AND GUARANTOR:
WASTE MANAGEMENT, INC.
By:
-----------------------------------------
Name:
Title: Vice President and Treasurer
WASTE MANAGEMENT HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title: Executive Vice President and Chief
Administrative Officer
By:
-----------------------------------------
Name:
Title: Vice President and Treasurer
THE BANKS AND AGENTS:
FLEET NATIONAL BANK, individually and as
Administrative Agent
By
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
-----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By
-----------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
CITIBANK, N.A.
By
-----------------------------------------
Name:
Title: