EXHIBIT 10.1
[CONFORMED COPY]
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CREDIT AGREEMENT
dated as of June 18, 1998
among
ALLIED WASTE NORTH AMERICA, INC.
ALLIED WASTE INDUSTRIES, INC.
CERTAIN LENDERS
CREDIT SUISSE FIRST BOSTON
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PAaRTNERS L.P.,
as Co-Syndication Agents
CITIBANK, N.A.,
as Issuing Bank
and
CITICORP USA, INC.,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms..............................2
Section 1.02. Computation of Time Periods.......................28
Section 1.03. Accounting Terms; Changes in GAAP.................28
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances......................................29
Section 2.02. Making the Advances...............................30
Section 2.03. Repayment.........................................31
Section 2.04. Termination or Reduction of the Commitments.......32
Section 2.05. Prepayments, Etc..................................32
Section 2.06. Interest..........................................34
Section 2.07. Fees..............................................35
Section 2.08. Conversion and Continuation of Advances...........36
Section 2.09. Increased Costs, Illegality, Etc..................37
Section 2.10. Payments and Computations.........................38
Section 2.11. Taxes.............................................40
Section 2.12. Sharing of Payments, Etc..........................42
Section 2.13. Letters of Credit.................................43
Section 2.14. Replacement of Lender.............................47
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Initial Extensions of Credit......................48
Section 3.02. Conditions Precedent to Each Borrowing and
Issuance........................................50
Section 3.03. Determinations Under Section 3.01.................51
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Organization; Powers..............................51
Section 4.02. Authorization.....................................51
Section 4.03. Enforceability....................................52
Section 4.04. Governmental Approvals............................52
Section 4.05. Financial Statements..............................53
Section 4.06. No Material Adverse Change........................53
Section 4.07. Title to Properties; Possession Under Leases......53
Section 4.08. Subsidiaries; Other Equity Investments............53
Section 4.09. Litigation; Compliance with Laws..................54
Section 4.10. Agreements........................................54
Section 4.11. Federal Reserve Regulations.......................54
Section 4.12. Investment Company Act; Public Utility
Holding Company Act.............................55
Section 4.13. Tax Returns.......................................55
Section 4.14. No Material Misstatements.........................55
Section 4.15. Employee Benefit Plans............................55
Section 4.16. Environmental Matters.............................55
Section 4.17. Insurance.........................................56
Section 4.18. Labor Matters.....................................56
Section 4.19. Solvency..........................................57
Section 4.20. Intellectual Property.............................57
Section 4.21. Year 2000.........................................57
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01. Existence; Businesses and Properties..............58
Section 5.02. Insurance.........................................58
Section 5.03. Obligations and Taxes.............................59
Section 5.04. Financial Statements, Reports, etc................59
Section 5.05. Litigation and Other Notices......................61
Section 5.06. Employee Benefits.................................61
Section 5.07. Maintaining Records; Access to Properties
and Inspections.................................61
Section 5.08. Environmental Laws................................62
Section 5.09. Preparation of Environmental Reports..............62
Section 5.10. Further Assurances................................63
Section 5.11. Compliance with Terms of Leaseholds...............64
Section 5.12. Performance of Material Agreements................64
Section 5.13. Junior Indebtedness...............................65
Section 5.14. Inactive Subsidiaries.............................65
Section 5.15. Year 2000.........................................65
ARTICLE VI
NEGATIVE COVENANTS
Section 6.01. Indebtedness......................................65
Section 6.02. Liens.............................................65
Section 6.03. No Other Negative Pledge..........................67
Section 6.04. Sale and Lease-Back Transactions..................67
Section 6.05. Investments, Loans and Advances...................68
Section 6.06. Mergers, Consolidations, Sales of Assets
and Acquisitions................................70
Section 6.07. Dividends and Distributions; Restrictions
on Ability of Subsidiaries to Pay
Dividends; Preferred Stock......................71
Section 6.08. Transactions with Affiliates......................73
Section 6.09. Business of Allied, Company and Subsidiaries......73
Section 6.10. Other Indebtedness and Agreements.................73
Section 6.11. Capital Expenditures..............................74
Section 6.12. Financial Covenants...............................74
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default.................................75
Section 7.02. Actions in Respect of the Letters of
Credit Upon Default.............................77
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action..........................78
Section 8.02. Administrative Agent's Reliance, Etc..............78
Section 8.03. CUSA and Affiliates...............................79
Section 8.04. Lender Credit Decision............................79
Section 8.05. Indemnification...................................79
Section 8.06. Collateral Duties.................................80
Section 8.07. Successor Administrative Agent....................80
Section 8.08. Co-Syndication Agents and other Titles............81
ARTICLE IX
THE GUARANTEE
Section 9.01. The Guarantee.....................................81
Section 9.02. Obligations Unconditional.........................82
Section 9.03. Reinstatement.....................................85
Section 9.04. Subrogation.......................................85
Section 9.05. Remedies..........................................85
Section 9.06. Instrument for the Payment of Money...............85
Section 9.07. Continuing Guarantee..............................86
Section 9.08. Rights of Contribution............................86
Section 9.09. General Limitation on Guarantee Obligations.......86
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Consents, Etc........................87
Section 10.02. Notices, Etc.....................................88
Section 10.03. No Waiver; Remedies..............................89
Section 10.04. Costs, Expenses and Indemnification..............89
Section 10.05. Right of Setoff..................................90
Section 10.06. Governing Law; Submission to Jurisdiction........91
Section 10.07. Assignments and Participations...................91
Section 10.08. Execution in Counterparts........................94
Section 10.09. No Liability of the Issuing Banks................94
Section 10.10. Confidentiality..................................95
Section 10.11. WAIVER OF JURY TRIAL.............................95
Section 10.12. Survival.........................................95
Section 10.13. Captions.........................................96
Section 10.14. Successors and Assigns...........................96
SCHEDULES
Schedule I Subsidiary Guarantors
Schedule 2.01 List of Commitments
Schedule 2.13 Existing Letters of Credit
Schedule 4.08 Subsidiaries; other Equity Investments;
Inactive Subsidiaries
Schedule 4.09 Litigation
Schedule 4.16 Environmental Matters
Schedule 4.17 Insurance
Schedule 6.02 Liens
EXHIBITS
EXHIBIT A-1....... Form of Revolving Credit Note
EXHIBIT A-2....... Form of Term Note
EXHIBIT B-1....... Form of Pledge Agreement
EXHIBIT B-2....... Form of Security Agreement
EXHIBIT C......... Form of Notice of Borrowing
EXHIBIT D-1....... Form of Opinion of Counsel to the Obligors
EXHIBIT D-2....... Form of Opinion of General Counsel of the Company
EXHIBIT E......... Form of Opinion of Special New York Counsel to CUSA
EXHIBIT F......... Form of Assignment and Acceptance
EXHIBIT G......... Form of Assumption Agreement
- 5 -
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 18, 1998 among:
(1) ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation
(the "Company");
(2) ALLIED WASTE INDUSTRIES, INC., a Delaware corporation
("Allied");
(3) each of the SUBSIDIARY GUARANTORS listed on Schedule I hereto
and each Subsidiary of the Company that becomes a "Subsidiary
Guarantor" after the date hereof pursuant to Section 5.10
(individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with Allied, the
"Guarantors"; and the Guarantors collectively with the
Company, the "Obligors");
(4) each of the lenders (the "Initial Lenders") listed on the signature
pages hereof;
(5) CITIBANK, N.A., as Issuing Bank; and
(6) CITICORP USA, INC., as administrative agent (together with its
successor in such capacity, the "Administrative Agent") for
the Lenders and the Issuing Bank hereunder.
PRELIMINARY STATEMENTS:
Capitalized terms used in these Preliminary Statements and not
otherwise defined have the meanings assigned to them in Section 1.01.
(a) The Company and the Subsidiary Guarantors are engaged as
an integrated group in the business of collecting, processing,
recycling and disposing of waste (and in businesses related thereto)
and in furnishing the required supplies, services, equipment, credit
and other facilities for such integrated operation. The integrated
operation requires financing on such a basis that credit supplied to
the Company be made available from time to time to the Subsidiary
Guarantors, as required for the continued successful operation of the
Company and the Subsidiary Guarantors, separately, and the integrated
operation as a whole. In that connection, the Obligors have requested
that the Lenders extend credit to the Company (to be made available by
the Company to the Subsidiary Guarantors) in an aggregate principal or
face amount not exceeding $1,100,000,000 to finance the operations of
the Company and the Subsidiary Guarantors, to refinance certain
existing indebtedness of the Company and the Subsidiary Guarantors, to
finance Permitted Acquisitions and Capital Expenditures, for working
capital and for other general corporate purposes.
(b) To induce the Lenders to extend such credit, the parties
hereto propose to enter into this Agreement pursuant to which the
Lenders will make loans to the Company and the Issuing Bank (and
certain other Lenders) will issue letters of credit for the account of
members of the Allied Group; each Guarantor will guarantee the credit
so extended; and each of the Obligors will agree to execute and deliver
pledge agreements and security agreements providing for security
interests and liens to be granted by the Obligors on certain of their
respective Properties as collateral security for the obligations of the
Obligors to the Lenders and the Administrative Agent hereunder.
(c) Each of the Obligors expects to derive benefit, directly
or indirectly, from the credit so extended to the Company (in the case
of the Company and the Subsidiary Guarantors, both in its separate
capacity and as a member of the integrated group), since the successful
operation of each of the Company and the Subsidiary Guarantors is
dependent on the continued successful performance of the functions of
the integrated group as a whole.
(d) The Company and Allied entered into a Credit Agreement
dated as of December 30, 1996 (the "Original Credit Agreement") with
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., Credit Suisse First Boston,
Citibank and the other lenders party thereto providing for extensions
of credit to the Obligors, which Credit Agreement was amended and
restated pursuant to the Existing Credit Agreement. This Agreement
replaces the Original Credit Agreement as amended by the Existing
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Acquired Business" means (a) any Person at least a majority
of the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company, in each case in accordance with the terms of this
Agreement.
"Acquired Indebtedness" means Indebtedness of an Acquired
Business outstanding on the date such Acquired Business was acquired by
the Company or one of its wholly owned Subsidiaries.
"Acquired Revenues" means, with respect to any period, the
revenues attributable to Acquired Business during such period, provided
that if the Company acquires, directly or indirectly, less than all of
the capital stock or other ownership interests of an Acquired Business,
only the percentage of revenues of such Acquired Business attributable
to the Allied Group's collective interest in such Acquired Business
shall be deemed to be "Acquired Revenues" for purposes of this
Agreement.
"Acquisition Consideration" means, with respect to any
acquisition, the aggregate amount of consideration paid by the members
of the Allied Group in connection therewith, including, without
limitation (but without duplication):
(1) the aggregate amount of cash paid, the aggregate
fair market value of non-cash property delivered and the
aggregate principal amount of Indebtedness incurred by members
of the Allied Group in connection with such acquisition;
(2) the aggregate amount of Indebtedness and other
liabilities of the Acquired Business assumed by the members of
the Allied Group; and
(3) the aggregate amount of Indebtedness and other
liabilities retained by the Acquired Business,
but in any event excluding (x) common stock, Preferred Stock (other
than Cash-Pay Preferred Stock) and other Non-Cash-Pay equity interests
issued by Allied in connection with such acquisition; (y) payment
obligations of members of the Allied Group based on post-acquisition
performance of the Acquired Business and (z) liabilities for which
members of the Allied Group have received indemnification or other
financial assurances from or on behalf of the transferor (so long as
the obligors on such indemnification or other financial assurances are,
in the reasonable opinions of the Administrative Agent and the Company,
creditworthy).
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
at its office at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (or his successor), or
such other account maintained by the Administrative Agent as may be
designated by the Administrative Agent in a written notice to the
Lenders, the Issuing Bank and the Company.
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Administrative Agent.
"Advance" means a Revolving Credit Advance or a Term Advance.
"Affiliate" means, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Allied" has the meaning specified in the recital of parties
to this Agreement.
"Allied Group" means, collectively, Allied and Allied's
Subsidiaries (including, without limitation, the Company and the
Company's Subsidiaries), and a "member" of the Allied Group means
Allied and each of Allied's Subsidiaries.
"Allied Senior Notes" means the 11.30% Senior Discount Notes
due 2007 of Allied in an aggregate principal amount at maturity of
$418,000,000.
"Allied Senior Notes Indenture" means the Indenture dated as
of May 15, 1997 among Allied and U.S. Bank Trust National Association,
as trustee, relating to the Allied Senior Notes, as from time to time
amended.
"Allied Waste Senior Subordinated Notes" means the 10-1/4%
Senior Subordinated Notes due 2006 issued by the Company on December 5,
1996, in an aggregate principal amount of $525,000,000.
"Allied Waste Senior Subordinated Notes Indenture" means the
Indenture dated as of December 1, 1996 among the Company, Allied, the
Subsidiaries of Allied party thereto and U.S. Bank Trust National
Association, as trustee, as from time to time amended.
"Applicable Commitment Fee Rate" means 0.50% per annum;
provided that (so long as no Event of Default shall have occurred and
be continuing):
(1) the Applicable Commitment Fee Rate shall be 0.25%
per annum during the first Pricing Period; and
(2) if for any Rolling Period ending on or after the
Closing Date the Leverage Ratio as at the end of such Rolling
Period shall be within any of the ranges specified in the
schedule below, then, subject to the delivery to the
Administrative Agent of the Certified Financial Statements
with respect to the fiscal year, or fiscal quarter, ending on
the last day of such Rolling Period prior to the date by which
such Certified Financial Statements are required to be so
delivered, the "Applicable Commitment Fee Rate" for the
related Pricing Period shall be changed to the percentage per
annum set forth opposite the reference to such range in such
schedule:
Applicable
Range of Leverage Ratio Commitment Fee Rate
Greater than or equal to 4.75 to 1.00 0.500%
Greater than or equal to 4.25 to 1.00
but less than 4.75 to 1.00 0.375%
Greater than or equal to 3.50 to 1.00
but less than 4.25 to 1.00 0.250%
Less than 3.50 to 1.00 0.200%
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Letter of Credit Fee Rate" means, at any time, a
rate per annum equal to the Applicable Margin for Eurodollar Rate
Advances in effect at such time.
"Applicable Margin" means (a) with respect to all Base Rate
Advances, 0.500% per annum and (b) with respect to all Eurodollar Rate
Advances, 1.750% per annum; provided that (so long as no Event of
Default shall have occurred and be continuing):
(1) during the first Pricing Period, the Applicable
Margin with respect to all Base Rate Advances will be 0.00%
per annum and the Applicable Margin with respect to all
Eurodollar Rate Advances will be 1.125% per annum; and
(2) if for any Rolling Period ending on or after the
Closing Date the Leverage Ratio as at the end of such Rolling
Period shall be within any of the ranges specified in the
schedule below, then, subject to the delivery to the
Administrative Agent of the Certified Financial Statements
with respect to the fiscal year, or fiscal quarter, ending on
the last day of such Rolling Period prior to the date by which
such Certified Financial Statements are required to be so
delivered, the "Applicable Margin" for the related Pricing
Period shall be changed to the percentage per annum set forth
opposite the reference to such range in such schedule:
Applicable Margin (% p.a.)
Range of Leverage Ratio Base Rate Eurodollar Rate
Advances Advances
Greater than or equal to 4.75 to 1.00 0.500% 1.750%
Greater than or equal to 4.25 to 1.00
but less than 4.75 to 1.00 0.250% 1.500%
Greater than or equal to 3.50 to 1.00
but less than 4.25 to 1.00 0.000% 1.125%
Less than 3.50 to 1.00 0.000% 0.750%
"Asset Sale" means any sale, lease, assignment, transfer or
other disposition of any property (whether now owned or hereafter
acquired, whether in one transaction or a series of related
transactions and whether by way of merger or otherwise) by any member
of the Allied Group, including, without limitation, any such sale,
assignment, transfer or other disposition of any capital stock or other
ownership interests of any of Allied's Subsidiaries.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 10.07 and in
substantially the form of Exhibit F.
"Assumption Agreement" means an assumption agreement between a
Specified Subsidiary and the Administrative Agent in substantially the
form of Exhibit G.
"Available Amount" of any Letter of Credit means the maximum
amount available to be drawn under such Letter of Credit (assuming
compliance with all conditions to drawing specified therein).
"Bankruptcy Code" means Title 11 of the United States Code, as
from time to time amended.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of (a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as Citibank's base
rate and (b) 0.50% per annum above the Federal Funds Rate. Each change
in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Term
Borrowing.
"Business Day" means any day on which banks are not required
or authorized to close in New York City and Phoenix, Arizona, and, if
such Business Day relates to a Eurodollar Rate Advance, on which
dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred
during such period) made by Allied or any of its Subsidiaries to
acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs unless
such repairs are required to be capitalized in accordance with GAAP)
during such period computed in accordance with GAAP; provided that
Capital Expenditures shall not include (a) expenditures classified as
Permitted Acquisitions, (b) expenditures made by an Acquired Business
prior to the time such Acquired Business was acquired by the Company or
any of its Subsidiaries pursuant to a Permitted Acquisition or (c)
expenditures made with the proceeds of condemnation awards or insurance
for fixed assets, plant and equipment.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Cash-Pay Preferred Stock" means Preferred Stock (1) that
requires periodic payment of cash dividends or (2) that the issuer
thereof has undertaken to redeem for cash at a fixed or determinable
date or dates prior to the Maturity Date, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (3) is redeemable for cash
on any date prior to the Maturity Date at the option of the holder
thereof.
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking
of, such property for which such Person or any of its Subsidiaries
receives insurance proceeds, proceeds of a condemnation award or other
compensation.
"Certified Financial Statements" means the certified financial
statements required to be delivered to the Administrative Agent with
respect to a fiscal year pursuant to Section 5.04(a) or with respect to
a fiscal quarter pursuant to Section 5.04(b), in each case setting
forth, inter alia, a calculation of the Leverage Ratio as at the last
day of such fiscal year or fiscal quarter, as the case may be.
"Change in Control" means:
(a) any Person or group (within the meaning of Rule 13d-5
promulgated under the Securities Exchange Act of 1934 as in effect on
the date hereof) shall have acquired directly or indirectly, beneficial
ownership of shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding capital
stock of Allied;
(b) Allied is merged, consolidated or reorganized into or with
another corporation or other Person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined
voting power of the then outstanding securities of the corporation or
other Person that is the survivor of such merger, consolidation or
reorganization immediately after such transaction is held in the
aggregate by the holders of Allied Voting Stock immediately prior to
such transaction (where "Allied Voting Stock" means outstanding
securities of Allied entitled to vote generally in the election of
directors of Allied); or
(c) a majority of the seats (other than vacant seats) on the
board of directors of Allied shall at any time be occupied by Persons
who were neither nominated by the board of directors of Allied nor
appointed by directors so nominated; or
(d) any change in control (or similar event, however
denominated) with respect to Allied shall occur under and as defined in
any indenture or agreement in respect of Indebtedness in an aggregate
principal amount in excess of $50,000,000; or
(e) Allied shall cease to own and control, directly,
beneficially and of record, 100% of the outstanding capital stock of
the Company, free and clear of all Liens (other than Liens under the
Pledge Agreement).
"Citibank" means Citibank, N.A., a national banking
association, and its successors.
"Closing Date" means the date upon which the initial extension
of credit hereunder is made.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Collateral" means all "Collateral" referred to in the
Security Documents and all other property that is subject to any Lien
created by any Security Document in favor of the Administrative Agent.
"Commitment" means a Revolving Credit Commitment or a Term
Commitment.
"Company" has the meaning specified in the recital of parties
to this Agreement.
"Company's Account" means the account of the Company
maintained with Citibank, at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇; or such other account maintained
by the Company with Citibank and designated by the Company in a written
notice to the Administrative Agent.
"Confidential Information" means information identified as
being confidential that a member of the Allied Group furnishes to the
Administrative Agent, the Issuing Bank or any Lender, but does not
include any such information once such information has become generally
available to the public or once such information has become available
to the Administrative Agent, the Issuing Bank or any Lender from a
source other than a member of the Allied Group (unless, in either case,
such information becomes so available as a result of the breach by the
Administrative Agent, the Issuing Bank or a Lender of its duty of
confidentiality set forth in Section 10.10).
"Confidential Information Memorandum" means the Confidential
Information Memorandum of the Company dated May 1998.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum, for
Allied and its Subsidiaries (determined on a Consolidated basis without
duplication in accordance with GAAP), of the following:
(a) net operating income (calculated before taxes,
Consolidated Interest Expense and income or loss attributable
to equity in Affiliates that are not Subsidiaries of Allied)
for such period plus
(b) the sum for such period of the following (in each
case to the extent deducted in determining net operating
income):
(1) depreciation and amortization;
(2) the aggregate amount of letter of credit
fees accrued during such period;
(3) all non-cash non-recurring charges
during such period, including charges for costs
related to Permitted Acquisitions (it being
understood that (x) non-cash non-recurring charges
shall not include accruals for closure and
post-closure liabilities and (y) charges shall be
deemed non-cash charges until the period during which
cash disbursements attributable to such charges are
made, at which point such charges shall be deemed
cash charges; provided that, for purposes of this
clause (y), the Company shall be required to monitor
the actual cash disbursements only for those non-cash
charges that exceed $1,000,000 individually or that
exceed $10,000,000 in the aggregate in any fiscal
year);
(4) all cash charges attributable to the
execution, delivery and performance of the Loan
Documents;
(5) all non-recurring cash charges related
to Permitted Acquisitions and financings (including
amendments thereto); and minus
(c) all non-cash non-recurring gains during such
period (to the extent included in determining net operating
income for such period).
If the Company or any of its Subsidiaries acquires any Acquired
Business during any Rolling Period, Consolidated EBITDA for such
Rolling Period will be determined on a pro forma basis as if such
Acquired Business were acquired on the first day thereof. In
determining the pro forma adjustments to Consolidated EBITDA to be made
with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Company and its
Subsidiaries prior to the first anniversary of the related acquisition
date that result in cost savings with respect to such Acquired Business
will be deemed to have been taken on the first day of the Rolling
Period for which Consolidated EBITDA is being determined (with the
intent that such cost savings be effectively annualized by
extrapolation from the demonstrated cost savings since the related
acquisition date). Such pro forma adjustments will be subject to
delivery to the Administrative Agent of a certificate of a Financial
Officer of the Company; such certificates may be delivered with respect
to any Acquired Business at any time after the end of the fiscal
quarter of the Company following the related acquisition date and may
be delivered quarterly (but only once per fiscal quarter with respect
to each Acquired Business). Each such certificate shall be accompanied
by supporting information and calculations demonstrating the actual
cost savings with respect to such Acquired Business and such other
information as any Lender, through the Administrative Agent, may
reasonably request.
"Consolidated Interest Expense" means, for any period, the
sum, for Allied and its Subsidiaries (determined on a Consolidated
basis without duplication in accordance with GAAP), of the following:
(a) all interest in respect of Indebtedness
(including the interest component of any payments in respect
of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period),
net of interest income; plus
(b) the net amount due and payable (or minus the net
amount receivable) under Interest Rate Protection Agreements
during such period (whether or not actually paid or received
during such period);
provided that "Consolidated Interest Expense" shall not include any
interest expense accrued and not paid in cash in respect of Non-Cash
Pay Indebtedness.
"Continuation", "Continue" and "Continued" each refers to a
continuation of Eurodollar Rate Advances from one Interest Period to
the next Interest Period pursuant to Section 2.08.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms "Controlling" and "Controlled"
shall have meanings correlative thereto.
"Conversion", "Convert" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Credit Agreement Transactions" means the transactions
contemplated by this Agreement and the other Loan Documents (including,
without limitation, the execution, delivery and performance by the
Obligors of the Loan Documents, the incurrence of liabilities by the
Obligors under the Loan Documents and the extensions of credit
hereunder) and any actual or proposed use by the Company of any of its
Subsidiaries of the proceeds of any of the extensions of credit
hereunder.
"CUSA" means Citicorp USA, Inc. and its successors.
"Default" means any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" in
the Administrative Questionnaire of such Lender or in the Assignment
and Acceptance pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to
the Administrative Agent.
"Domestic Subsidiary" means a Subsidiary of the Company
organized under the laws of the United States or any state thereof.
"Eligible Assignee" means: (a) any Lender or any Affiliate of
any Lender; (b) a commercial bank organized under the laws of the
United States, or any state thereof, and having total assets in excess
of $1,000,000,000; (c) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having a net worth in excess of $100,000,000; (d) a commercial bank
organized under the laws of any other country that is a member of the
OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having
total assets in excess of $1,000,000,000, so long as such bank is
acting through a branch or agency located in the country in which it is
organized or another country that is described in this clause (d); (e)
the central bank of any country that is a member of the OECD; (f) a
finance company, insurance company or other financial institution or
fund (whether a corporation, partnership, trust or other entity) that
is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in
excess of $100,000,000; and (g) any other Person (other than an
Affiliate of the Company) approved by the Administrative Agent and the
Company, such approval not to be unreasonably withheld or delayed.
"Environment" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land
surface or subsurface strata or as otherwise defined in any
Environmental Law.
"Environmental Claim" means any written accusation,
allegation, notice of violation, claim, demand order, directive, cost
recovery action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive or
equitable relief, personal injury (including sickness, disease or
death), Remedial Action costs, tangible or intangible property damage,
natural resource damages, nuisance, pollution, any adverse effect on
the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the threat,
the existence, or the continuation of the existence, of a Release
(including sudden or non-sudden, accidental or non-accidental
Releases), (b) exposure to any Hazardous Material, (c) the presence,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" means any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters, including the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. ▇▇.▇▇. 9601 et seq. (collectively "CERCLA"), the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Action of 1976 and Hazardous and Solid Waste Amendments of
1984, 42 U.S.C. ▇▇.▇▇. 6901 et seq., the Federal Water Pollution
Control Act, as amended, 33 U.S.C. ▇▇.▇▇. 1251 et seq., the Clean Air
Act of 1970, as amended, 42 U.S.C. ▇▇.▇▇. 7401 et seq., the Toxic
Substances Control Act of 1976, 15 U.S.C. ▇▇.▇▇. 2601 et seq., the
applicable portions of the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. ▇▇.▇▇. 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001 et seq.,
the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. ▇▇.▇▇.
300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
▇▇.▇▇. 5101 et seq., and all amendments or regulations promulgated
under any of the foregoing.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission
required by or from any Government Authority pursuant to any
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan with respect to which notice is required to be given
to the PBGC; (b) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA; (c) the existence with respect to any
Plan of an "accumulated funding deficiency" (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (d) the
filing pursuant to Section 412(d) of the Code or Section 303 of ERISA
of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV
of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Company or any of its ERISA Affiliates
from any Plan or Multiemployer Plan; (f) the receipt by the Company or
any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or, in the
case of the PBGC, to appoint a trustee to administer any Plan; (g) the
receipt by the Company or any ERISA Affiliate of any notice concerning
the imposition of Withdrawal Liability or a determination that
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h) the
occurrence of a "prohibited transaction" with respect to which any
member of the Allied Group is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which any
member of the Allied Group could otherwise be liable; and (i) any other
event or condition with respect to a Plan or Multiemployer Plan that
could reasonably be expected to result in liability of any member of
the Allied Group.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
in the Administrative Questionnaire of such Lender or in the Assignment
and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Lender as such Lender may from time to time specify to the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rates per annum at which deposits in U.S. Dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at approximately 10:00 A.M.
(New York time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's (or in
the case of Citibank, CUSA's) Eurodollar Rate Advance comprising part
of such Borrowing (determined without giving effect to any assignments
or participations by such Reference Bank) and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for each Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by
the Administrative Agent on the basis of applicable rate furnished to
and received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
means the reserve percentage (if any) applicable two Business Days
before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with deposits exceeding $1,000,000,000
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 7.01.
"Excluded Period" means, with respect to any additional amount
payable under Section 2.09 or 2.13, the period ending 180 days prior to
the applicable Lender's delivery of a certificate referenced in Section
2.09(a), 2.09(b) or 2.13(d), as applicable, with respect to such
additional amount.
"Existing Credit Agreement" means the Amended and Restated
Credit Agreement dated as of June 5, 1997 among the Company, Allied,
the lenders party thereto, the agents party thereto, and Credit Suisse
First Boston, as Administrative Agent, as amended and in effect on the
Closing Date.
"Existing Letters of Credit" means the letters of credit
outstanding under the Existing Credit Agreement on the Closing Date and
identified on Schedule 2.13.
"Facility" means the Revolving Credit Facility or the Term
Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Financial Officer" of any Person means the chief financial
officer, chief accounting officer, treasurer or controller of such
Person.
"Fixed Charges" means, for any period, the sum, for Allied and
its Subsidiaries (determined on a Consolidated basis without
duplication in accordance with GAAP), of the following:
(a) all regularly scheduled payments of principal of
Indebtedness (including the principal component of any
payments in respect of Capital Lease Obligations, but
excluding (1) payments on Indebtedness financed through the
incurrence of new Indebtedness or the issuance of Preferred
Stock or common stock of Allied and (2) optional prepayments
of Advances made pursuant to Section 2.05(a) or mandatory
prepayments of Advances made pursuant to Section 2.05(b)) made
during such period plus
(b) Consolidated Interest Expense for such period; plus
(c) the aggregate amount of cash taxes paid by
members of the Allied Group, on a Consolidated basis, during
such period; plus
(d) the aggregate amount of cash dividends paid by
members of the Allied Group in respect of their common and
Preferred Stock (other than (x) cash dividends paid by members
of the Allied Group to Allied, the Company or wholly owned
Subsidiaries of Allied in accordance with Section 6.07 and (y)
cash dividends in respect of Cash-Pay Preferred Stock to the
extent the same are included in Consolidated Interest
Expense); plus
(e) Lease Expense for such period.
"Fixed Charges Ratio" means, as at any date, the ratio of (a)
Consolidated EBITDA for the Rolling Period ending on or most recently
ended prior to such date plus Lease Expense for such Rolling Period to
(b) Fixed Charges for such Rolling Period.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of, and used in,
the preparation of the audited financial statements referred to in
Section 4.05.
"Governmental Authority" means any Federal, state, provincial,
municipal, local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantee" of or by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Indebtedness
of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person,
direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the
payment of such Indebtedness, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (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; provided that the term
"Guarantee" shall not include endorsements for collection or deposit in
the ordinary course of business.
"Guaranteed Obligations" has the meaning specified in Section
9.01.
"Guarantors" has the meaning specified in the recital of
parties to this Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes; hazardous or toxic substances or wastes;
pollutants; and solid, liquid or gaseous wastes, including petroleum or
petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing materials or
equipment, radon gas, infectious or medical wastes and all other
substances or wastes of any nature to the extent regulated pursuant to
any Environmental Law.
"Hedging Agreement" means any Interest Rate Protection
Agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Inactive Subsidiaries" has the meaning specified in Section
4.08(c).
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(c) all obligations of such Person under conditional sale or
other title retention agreements relating to property or assets
purchased by such Person;
(d) all obligations of such Person issued or assumed as the
deferred purchase price of property or services (excluding trade
accounts payable and accrued obligations incurred in the ordinary
course of business and waste disposal-based royalties);
(e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby have been
assumed;
(f) all Guarantees by such Person of Indebtedness of others;
(g) all Capital Lease Obligations of such Person;
(h) all net payment obligations of such Person in respect of
Interest Rate Protection Agreements and other Hedging Agreements;
(i) all obligations of such Person with respect to Cash-Pay
Preferred Stock issued by such Person; and
(j) all obligations of such Person as an account party in
respect of letters of credit and bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any
partnership in which such Person is a general partner.
"Indemnified Party" means the Administrative Agent, each
Issuing Bank, each Co-Syndication Agent named on the cover page of this
Agreement, each Lender and each of their respective Affiliates and
their officers, partners, directors, employees, agents and advisors.
"Initial Lenders" has the meaning specified in the recital of
the parties to this Agreement.
"Intellectual Property" has the meaning specified in the
Security Agreement.
"Interest Expense Coverage Ratio" means, as at any date, the
ratio of (a) Consolidated EBITDA for the Rolling Period ending on or
most recently ended prior to such date to (b) Consolidated Interest
Expense for such Rolling Period.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Company pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Company pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Company may, upon notice received
by the Administrative Agent not later than 10:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided that:
(a) with respect to Term Advances, the Company may
not select any Interest Period that ends after any Principal
Payment Date unless, after giving effect thereto, the
aggregate principal amount of Term Advances having Interest
Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of Term
Advances scheduled to be outstanding after giving effect to
the payments of principal required to be made on such
Principal Payment Date;
(b) with respect to Revolving Credit Advances, no
Interest Period for any Revolving Credit Advance may end after
the Revolving Credit Commitment Termination Date;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on the last day of a calendar month (or on any day for
which there is no numerically corresponding day in the
appropriate subsequent calendar month), such Interest Period
shall end on the last Business Day of the appropriate
subsequent calendar month.
"Interest Rate Protection Agreement" means any interest rate
swap, cap or other agreement satisfactory to the Administrative Agent
entered into by the Company that is designed to protect the Company
against fluctuations in interest rates and not for speculation.
"Issuing Bank" means Citibank, together with its successors in
such capacity, and any other Lender (or Affiliate thereof) appointed to
issue one or more specific Letters of Credit pursuant to Section
2.13(f).
"Junior Indebtedness" means:
(a) Indebtedness of members of the Allied Group in respect of
the Allied Senior Notes and Allied Waste Senior Subordinated Notes; and
(b) Indebtedness of members of the Allied Group the payment of
which is contractually subordinated to the obligations of the Obligors
hereunder.
"L/C Cash Collateral Account" means the "L/C Cash Collateral
Account" under the Security Agreement.
"L/C Related Documents" means this Agreement and each other
agreement or instrument relating to any Letter of Credit, in each case
as hereafter amended, supplemented or otherwise modified from time to
time.
"Lease Expense" means, for any period, for Allied and its
Subsidiaries (determined on a Consolidated basis without duplication in
accordance with GAAP) the aggregate amount of fixed and contingent
rentals payable with respect to operating leases of real and personal
property (other than Capital Lease Obligations).
"Lenders" means the Initial Lenders and each Eligible Assignee
that becomes a party hereto pursuant to Section 10.07. When reference
is made in this Agreement or any other Loan Document to any
"relevant" Lender in connection with either Facility, such
reference shall be deemed to refer to a Lender that has a Commitment
or outstanding Advances under such Facility. Unless the context
clearly indicates otherwise, the term "Lenders" shall include the
Issuing Banks.
"Letter of Credit" has the meaning specified in Section
2.13(a).
"Letter of Credit Liability" means, at any time, all of the
liabilities of the Company to the Issuing Banks in respect of Letters
of Credit, whether such liability is contingent or fixed, and shall
consist of the sum of (a) the aggregate Available Amount of all Letters
of Credit then outstanding plus (b) the aggregate amount that has then
been paid by, and has not been reimbursed to, the Issuing Banks under
Letters of Credit.
"Letter of Credit Sublimit" means $250,000,000.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the Rolling
Period ending on or most recently ended prior to such date.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means, collectively, this Agreement, the
Notes and the Security Documents.
"Margin Stock" has the meaning specified in Regulations U
and X.
"Material Adverse Effect" means (a) a materially adverse
effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of Allied and its Subsidiaries,
taken as a whole, (b) a material impairment of the ability of Allied or
the Company to perform their respective obligations under the Loan
Documents, (c) a material impairment of the ability of the members of
the Allied Group, taken as a whole, to perform their collective
obligations under the Loan Documents, or (d) a material impairment of
the rights of or benefits available to the Administrative Agent and the
Lenders under the Loan Documents.
"Material Agreement" means an agreement that is material to
the conduct of the business of the Company and its Subsidiaries, taken
as a whole.
"Maturity Date" means June 18, 2003, provided that if such
date is not a Business Day, the Maturity Date shall be the immediately
preceding Business Day.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(a) In the case of any Asset Sale, the aggregate amount of all
cash payments as and when received by the members of the Allied Group
directly or indirectly in connection with such Asset Sale; provided
that:
(1) such Net Available Proceeds shall be net of (x)
the amount of any legal, title and recording tax expenses,
commissions and other reasonable fees and expenses (including
reasonable expenses of preparing the relevant property for
sale) paid by the members of the Allied Group in connection
with such Asset Sale, (y) any Federal, state and local income
or other taxes estimated in good faith to be payable by the
members of the Allied Group as a result of such Asset Sale and
(z) the aggregate amount of reserves taken by the members of
the Allied Group in accordance with GAAP against
indemnification obligations incurred by them in connection
with such Asset Sale;
(2) such Net Available Proceeds shall be net of any
repayments of Indebtedness by members of the Allied Group to
the extent that (x) such Indebtedness is secured by a Lien on
the property that is the subject of such Asset Sale and (y)
the transferee of (or holder of a Lien on) such property
requires that such Indebtedness be repaid as a condition to
the purchase of such property; and
(3) in the case of an Asset Sale consisting of a
substantially contemporaneous exchange (including by way of a
substantially contemporaneous purchase and sale) of discrete
assets of members of the Allied Group for one or more other
assets used for similar purposes, Net Available Proceeds shall
be net of cash payments made by members of the Allied Group in
connection with such exchange.
(b) In the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by members of the Allied Group in respect of such Casualty
Event net of (1) reasonable expenses incurred by them in connection
therewith, (2) contractually required repayments of Indebtedness to the
extent secured by a Lien on the property suffering such Casualty Event
and any income and transfer taxes payable by members of the Allied
Group in respect of such Casualty Event and (3) amounts promptly
applied to or set aside for the repair or replacement of the property
suffering such Casualty Event.
(c) In the case of any Specified Issuance, the aggregate
amount of all cash received by members of the Allied Group in respect
of such Specified Issuance, net of:
(1) reasonable expenses incurred by them in
connection therewith;
(2) payments of principal on Junior Indebtedness
outstanding on the date of such Specified Issuance and made
with proceeds thereof, so long as the terms of the
Indebtedness or Cash-Pay Preferred Stock issued as part of
such Specified Issuance are no less favorable to the Lenders
(as reasonably determined by the Administrative Agent) than
the Junior Indebtedness so paid; and
(3) payments of principal on Acquired Indebtedness
outstanding on the date of such Specified Issuance in an
aggregate amount, for such Specified Issuance, not exceeding
$25,000,000, so long as the terms of the Indebtedness or
Cash-Pay Preferred Stock issued as part of such Specified
Issuance are no less favorable to the Lenders (as reasonably
determined by the Administrative Agent) than the Acquired
Indebtedness so paid.
"non-appealable" includes, for purposes of Sections 2.11(c), 2.13(e),
7.01(j) and 10.04(b), any judgment as to which all appeals have been
taken or as to which the time for taking an appeal shall have expired.
"Non-Cash-Pay" means:
(a) with respect to any Preferred Stock, that such
Preferred Stock is not Cash-Pay Preferred Stock; and
(b) with respect to any Indebtedness or equity
interest (other than Preferred Stock), that such Indebtedness
or equity interest does not require any cash payments to be
made thereon prior to the Maturity Date, whether by operation
of a sinking fund or otherwise.
"Notes" means the Revolving Credit Notes and the Term Notes.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.13(b)(i).
"Obligations" means, collectively, the Guaranteed Obligations,
the "Secured Obligations" (as defined in the Pledge Agreement) and the
"Secured Obligations" (as defined in the Security Agreement).
"Obligors" has the meaning assigned to such term in the
recitals of parties to this Agreement.
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Permitted Acquisition" has the meaning assigned to such term
in Section 6.05(m).
"Permitted Call/Option Agreements" means one or more swap,
cap, collar or option agreements pursuant to which one or more members
of the Allied Group effectively monetize the value of call rights with
respect to Junior Indebtedness, so long as such swap, cap, collar or
option agreements are designed to protect the members of the Allied
Group against increases in the cost to them of calling such Junior
Indebtedness and such agreements are not for speculation.
"Permitted Capital Expenditures" means:
(a) for the fiscal year ending December 31, 1998, the sum of
(1) $200,000,000 plus (2) 25% of Acquired Revenues for the fiscal year
ending December 31, 1998 with respect to Acquired Businesses acquired
during such fiscal year; and
(b) for any fiscal year ending after December 31, 1998, the
sum of (1) the amount of Permitted Capital Expenditures for the prior
fiscal year plus (2) 25% of Acquired Revenues for the then-current
fiscal year with respect to Acquired Businesses acquired during such
then-current fiscal year.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances, time deposits and demand deposits maturing within one year
from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United States of America or any state thereof that has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d) demand deposits made in the ordinary course of business
and consistent with the Company's customary cash management policy in
any domestic office of any commercial bank organized under the laws of
the United States of America or any state thereof;
(e) insured deposits issued by commercial banks of the type
described in clause (d) above;
(f) repurchase obligations with a term of not more than 90
days for, and secured by, underlying securities of the types described
in clauses (a) through (c) above entered into with a bank meeting the
qualifications described in clause (c) above;
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of
clauses (a) through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"Person" means any individual, corporation (including a
business trust), company, voluntary association, partnership, limited
liability company, joint venture, trust, unincorporated organization or
Governmental Authority or other entity of whatever nature.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of
which the Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in
the form of Exhibit B-1 between Allied and the Administrative Agent.
"Post-Default Rate" means a rate per annum equal to 2% plus
the Applicable Margin plus the Base Rate as in effect from time to
time.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pricing Period" means a period from the date on which
Certified Financial Statements are delivered to the Administrative
Agent until the earlier of (x) the date on which the next Certified
Financial Statements are so delivered and (y) the date by which the
next Certified Financial Statements are required to be so delivered;
provided that the first Pricing Period shall be the period from the
Closing Date until the earlier of (1) the delivery of the first
Certified Financial Statements to the Administrative Agent and (2) the
date by which the Certified Financial Statements for the fiscal quarter
ending June 30, 1998 are required to be so delivered.
"Principal Payment Date" means June 30, 2001, June 30, 2002
and June 18, 2003, provided that, if any such day is not a Business
Day, the relevant Principal Payment Date shall be the immediately
preceding Business Day.
"Pro Rata Share" of any amount means, with respect to any
Lender under either Facility at any time, the product of (a) a fraction
the numerator of which is the amount of such Lender's Commitments under
such Facility (or, if such Commitments shall have expired or been
terminated, the amount of such Lender's Advances under such Facility),
and the denominator of which is the aggregate Commitments or Advances,
as the case may be, under such Facility at such time, multiplied by (b)
such amount.
"Properties" has the meaning assigned to such term in Section
4.16.
"Quarterly Dates" means March 31, June 30, September 30 and
December 31 in each year, the first of which shall be the first such
day after the Closing Date, provided that, if any such day is not a
Business Day, the relevant Quarterly Date shall be the immediately
preceding Business Day.
"Reference Banks" means Citibank, Credit Suisse First Boston,
BankBoston and Bank One (or their respective Applicable Lending
Offices, as the case may be).
"Register" has the meaning specified in Section 10.07(c).
"Regulation U" and "Regulation X" mean Regulations U and X of
the Board of Governors of the Federal Reserve System, respectively, as
in effect from time to time.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of
any Hazardous Material in, into, onto or through the environment.
"Relevant Percentage" means (1) if the Leverage Ratio exceeds
4.50 to 1.00, 75%; (2) if the Leverage Ratio exceeds 4.00 to 1.00 but
does not exceed 4.50 to 1.00, 50%; and (3) if the Leverage Ratio does
not exceed 4.00 to 1.00, 0%. For purposes of clauses (1), (2) and (3)
above:
(x) for prepayments under Section 2.05(b)(i) with
respect to any Asset Sale, the Leverage Ratio shall be
determined as of the date immediately prior to the date of
such Asset Sale;
(y) for prepayments under Section 2.05(b)(ii) with
respect to any Casualty Event, the Leverage Ratio shall be
determined as of the date immediately prior to the receipt of
the Net Available Proceeds of such Casualty Event; and
(z) for prepayments under Section 2.05(b)(iii) with
respect to any Specified Issuance, the Leverage Ratio shall be
determined on a pro forma basis after giving effect to such
Specified Issuance.
"Reliant Insurance" means Reliant Insurance Company, an
insurance company organized under the laws of the State of Vermont and,
as at the Closing Date, a wholly owned Subsidiary of the Company.
"Remedial Action" means (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other
actions required by any Governmental Authority, or voluntarily
undertaken by any member of the Allied Group, to: (i) cleanup, remove,
treat, ▇▇▇▇▇ or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or the
environment; or (iii) perform studies and investigations in connection
with, or as a precondition to, the actions referred to in clause (i) or
(ii) above.
"Required Lenders" means at any time Lenders owed or holding
in the aggregate more than 50% of the sum of (1) the then aggregate
unpaid principal amount of the Advances, (2) the then aggregate Unused
Revolving Credit Commitments and (3) the then aggregate amount of all
outstanding Letter of Credit Liabilities.
"Required Period" means:
(a) with respect to any Permitted Acquisition having
Acquisition Consideration (or the formation of any Specified Subsidiary
having assets comprising) less than 2% of Total Assets as at the most
recently ended fiscal quarter, the period ending on the last day of the
fiscal quarter during which such acquisition or formation occurs; and
(b) with respect to any other Permitted Acquisition or the
formation of any other Specified Subsidiary, promptly following the
occurrence thereof.
"Responsible Officer" means any officer of Allied or the
Company (including, without limitation, any Financial Officer of Allied
or the Company).
"Revolving Credit Advance" means an Advance made pursuant to
Section 2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Revolving Credit
Advances (expressed as the maximum aggregate amount of such Lender's
Revolving Credit Advances and the aggregate amount of such Lender's Pro
Rata Shares of the Letter of Credit Liabilities that may be outstanding
at any time), as such commitment may be (a) reduced from time to time
pursuant to Section 2.04 or 2.05 and (b) reduced or increased from time
to time pursuant to assignments by or to such Lender pursuant to
Section 10.07. The initial amount of each Lender's Revolving Credit
Commitment is set forth on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Revolving Credit Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Credit Commitments is $800,000,000.
"Revolving Credit Commitment Termination Date" means the
earlier of (a) the Maturity Date and (b) the termination or
cancellation of the Revolving Credit Commitments pursuant to the terms
of this Agreement.
"Revolving Credit Facility" means the revolving credit
facility provided hereunder in respect of the aggregate Revolving
Credit Commitments.
"Revolving Credit Lender" means each Lender specified in
Schedule 2.01 (or in an Assignment and Acceptance pursuant to which it
becomes a Lender hereunder) as having a Revolving Credit Commitment
and, after the expiration or termination of the Revolving Credit
Commitments, each Lenders holding a Revolving Credit Advance.
"Revolving Credit Note" means a promissory note of the Company
payable to the order of a Lender, in substantially the form of Exhibit
A-1, as from time to time amended.
"Rolling Period" means any period of four consecutive fiscal
quarters of Allied.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means a Security Agreement substantially
in the form of Exhibit B-2 between the Company, the Subsidiary
Guarantors and the Administrative Agent, as from time to time amended.
"Security Documents" means the Pledge Agreement, the Security
Agreement, each security agreement or other grant of security now or
hereafter made by any Obligor to secure any of the Obligations
hereunder and under the other Loan Documents, and all Uniform
Commercial Code financing statements required by this Agreement or any
of the foregoing to be filed with respect to the security interests in
personal property created pursuant thereto.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person on a
going concern basis is not less than the amount that will be required
to pay the probable liability of such Person on its Indebtedness as
they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur Indebtedness or liabilities
beyond such Person's ability to pay as such Indebtedness and
liabilities mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute an unreasonably small
amount of capital. The portion of contingent liabilities of any Person
at any time that shall be included for purposes of the above
determinations shall be the amount of such contingent liabilities that,
in light of all facts and circumstances existing at such time, could
reasonably be expected to become actual matured liabilities of such
Person.
"Specialized Waste" means Specialized Waste Systems, Inc., a
Texas corporation.
"Specified Issuance" means (a) any issuance of Indebtedness
for borrowed money by members of the Allied Group; and (b) any issuance
of Cash-Pay Preferred Stock by members of the Allied Group.
"Specified Subsidiary" means a Domestic Subsidiary of the
Company (including Domestic Subsidiaries formed or acquired pursuant to
Permitted Acquisitions), but in any event excluding Inactive
Subsidiaries and Reliant Insurance.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Subsidiary" means, with respect to any Person (herein
referred to as the "parent"), any corporation, partnership, limited
liability company, association or other business entity of which
securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or more than
50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held directly or
indirectly by the parent.
"Subsidiary Guarantor" has the meaning specified in the
recital of parties to this Agreement.
"Tax Indemnitee" means each Issuing Bank, each Lender and the
Administrative Agent.
"Term Advance" means an advance made pursuant to Section
2.01(b).
"Term Borrowing" means a borrowing consisting of simultaneous
Term Advances of the same Type.
"Term Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Advance on the
Closing Date (expressed as the maximum principal amount of the Term
Advance to be made by such Lender hereunder), as such commitment may be
(a) reduced from time to time pursuant to Section 2.04 or 2.05 and (b)
reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.07. The initial amount of each
Lender's Term Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Term Commitment, as applicable. The initial aggregate
amount of the Lenders' Term Commitments is $300,000,000.
"Term Facility" means the term loan facility provided
hereunder in respect of the aggregate Term Commitments.
"Term Lender" means each Lender specified in Schedule 2.01 (or
in an Assignment and Acceptance pursuant to which it becomes a Lender
hereunder) as having a Term Commitment and, after the termination or
expiration of the Term Commitments, each Lender holding a Term Advance.
"Term Note" means a promissory note of the Company payable to
the order of a Lender, in substantially the form of Exhibit A-2, as
from time to time amended.
"Total Assets" means, at any time, the aggregate amount of
assets which at such time would be reflected as assets on a
Consolidated balance sheet of Allied and its Subsidiaries prepared in
accordance with GAAP.
"Total Indebtedness" means, at any time, the sum of :
(a) all Indebtedness (other than Indebtedness
described in clauses (h) and (i) of the definition of the term
"Indebtedness") of members of the Allied Group which at such
time would be required to be reflected as liabilities for
borrowed money on a Consolidated balance sheet of Allied and
its Subsidiaries prepared in accordance with GAAP; and
(b) the face amount of Cash-Pay Preferred Stock of
members of the Allied Group outstanding at such time.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (without duplication) (b) the sum of (i) the
aggregate outstanding principal amount of all Revolving Credit Advances
made by such Lender and (ii) such Lender's Pro Rata Share of the
aggregate amount of all Letter of Credit Liabilities.
"U.S. Dollars" and "$" means lawful money of the United States
of America.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
Section 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" mean "to but excluding".
Section 1.03. Accounting Terms; Changes in GAAP.
Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP. If the Company
notifies the Administrative Agent that the Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Company that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances.
(a) Revolving Credit Facility. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances ("Revolving Credit Advances") to the Company from time to time on any
Business Day during the period from the Closing Date until the Revolving Credit
Commitment Termination Date in an aggregate amount at any one time outstanding
not to exceed the amount of such Lender's Revolving Credit Commitment, and, as
to all Lenders, in an aggregate amount at any one time outstanding not to exceed
$800,000,000. All Revolving Credit Advances shall be made by the Lenders ratably
according to their respective Revolving Credit Commitments.
Within the limits of each Lender's Revolving Credit Commitment
in effect from time to time, the Company may borrow under this Section 2.01(a)
and/or obtain the issuance of Letters of Credit under Section 2.13, prepay
Revolving Credit Advances pursuant to Section 2.05(a) and reborrow under this
Section 2.01(a); provided that the aggregate outstanding principal amount of
Revolving Credit Advances when added to the aggregate Letter of Credit Liability
may not at any time exceed the aggregate amount of the Revolving Credit
Commitments at such time.
(b) Term Facility. Each Term Lender severally agrees, on the
terms and conditions hereinafter set forth, to make an advance (collectively,
the "Term Advances") to the Company on the Closing Date in an aggregate amount
not to exceed such Lender's Term Commitment, and, as to all Term Lenders, in an
aggregate amount not to exceed $300,000,000. All Term Advances shall be made by
the Lenders ratably according to their respective Term Commitments. Term
Advances once repaid may not be reborrowed.
(c) Minimum Amounts. Each Borrowing shall be in an aggregate
amount at least equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(d) Use of Proceeds. The proceeds of the Advances shall be
used solely (1) to repay the "Loans" under and as defined in the Existing Credit
Agreement and (2) for general corporate purposes of the Company and its
Subsidiaries (including, without limitation, to finance the operations of the
Company and the Subsidiary Guarantors, to finance Permitted Acquisitions and
Capital Expenditures, to pay fees and expenses reasonably incurred with respect
to any of the foregoing and for working capital).
(e) No Responsibility to Third Parties. Neither the
Administrative Agent nor any Lender nor any Issuing Bank shall have any
responsibility as to the application or use of any of the proceeds of any
Advance or the use of any Letter of Credit.
Section 2.02. Making the Advances.
(a) Except as otherwise provided in Section 2.13, each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the Business Day of (or, with respect to a Borrowing of Eurodollar
Rate Advances, 10:00 A.M. (New York City time) on the third Business Day prior
to the date of) the proposed Borrowing, by the Company to the Administrative
Agent. Each such notice of a Borrowing (a "Notice of Borrowing") shall be by
telex, telecopier or cable, confirmed immediately in writing, in substantially
the form of Exhibit C, specifying therein (1) the requested date of such
Borrowing, (2) the Facility under which such Borrowing is to be made, (3) the
requested Type of Advances comprising such Borrowing, (4) the requested
aggregate amount of such Borrowing and (5) in the case of a Borrowing consisting
of Eurodollar Rate Advances, the requested initial Interest Period therefor.
The Administrative Agent shall give to each Lender prompt
notice of each Notice of Borrowing received from the Company and, in the case of
a proposed Borrowing comprised of Eurodollar Rate Advances, the applicable
interest rate under Section 2.06(a)(ii).
Each Lender shall, before 1:00 P.M. (New York City time) on
the date of each Borrowing after the Closing Date, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will transfer same day funds to the Company's Account;
provided that in the case of any Revolving Credit Borrowing, the Administrative
Agent shall first make a portion of such funds equal to any unreimbursed
drawings under any Letters of Credit available to the relevant Issuing Banks for
reimbursement of such drawing.
(b) Anything in paragraph (a) above to the contrary
notwithstanding, (i) the Company may not select Eurodollar Rate Advances (1) for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or (2) if the obligation of the relevant Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.09, and (ii)
Eurodollar Rate Advances may not be outstanding under more than 20 separate
Interest Periods at any one time.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Company. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Company
shall indemnify each relevant Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a relevant Lender prior to 12:00 Noon (New York City time) on the date of
any Borrowing that such Lender will not make available to the Administrative
Agent such Lender's ratable portion of such Borrowing, the Administrative Agent
may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with Section
2.02(a) and the Administrative Agent may, in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent and the Administrative Agent shall have made available
such corresponding amount to the Company, such Lender and the Company severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Company, the
interest rate applicable at such time under Section 2.06 to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate (it
being understood that repayments by the Company pursuant to this sentence shall
not be subject to Sections 2.05(a) and 10.04(c)). If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.03. Repayment.
(a) Revolving Credit Advances. The Company hereby promises to
pay to the Administrative Agent for the account of each Revolving Credit Lender
the entire outstanding principal amount of such Lender's Revolving Credit
Advances, and each Revolving Credit Advance shall mature, on the Revolving
Credit Commitment Termination Date.
(b) Term Advances. The Company hereby promises to pay to the
Administrative Agent for the account of each Term Lender the aggregate principal
amount of such Lender's Term Advances in three consecutive annual installments,
one such installment to be payable on each Principal Payment Date, as follows:
Principal Payment Date
on or nearest to Amount of Installment
June 30, 2001 $75,000,000.00
June 30, 2002 $105,000,000.00
June 18, 2003 $120,000,000.00
If the Company does not borrow the full amount of the Term Commitments on the
Closing Date, or if the Term Commitments are reduced prior to the Closing Date,
the shortfall or reduction shall be applied to reduce the foregoing installments
ratably.
(c) All Advances. All repayments of principal under this
Section 2.03 shall be made together with interest accrued to the date of such
repayment on the principal amount repaid.
Section 2.04. Termination or Reduction of the Commitments.
(a) Optional. The Company may at any time or from time to
time, upon not less than three Business Days' notice to the Administrative
Agent, terminate in whole or reduce in part the Commitments under either
Facility, provided that (i) each partial reduction of the Commitments under such
Facility shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and (ii) the aggregate amount of the Revolving
Credit Commitments shall not be reduced below the aggregate Letter of Credit
Liabilities (less any portion thereof for which the Company has provided an
alternate letter of credit or cash collateral acceptable to the relevant Issuing
Banks and the Administrative Agent).
(b) Mandatory. The Revolving Credit Commitments shall be
automatically and permanently reduced to zero on the Revolving Credit Commitment
Termination Date. The unused Term Commitments shall be automatically and
permanently reduced to zero at the close of business on the Closing Date.
(c) Reductions Pro Rata; No Reinstatements. Each reduction of
the Commitments under a Facility shall be applied to the respective Commitments
of the Lenders according to their respective Pro Rata Shares of such Facility.
Commitments once terminated or reduced may not be reinstated.
Section 2.05. Prepayments, Etc.
(a) Optional Prepayments. The Company may, upon at least three
Business Days' notice (in the case of prepayment of Eurodollar Rate Advances) or
upon notice given on the date of prepayment (in the case of prepayments of Base
Rate Advances) to the Administrative Agent (which notice shall state the
Facility to be prepaid and the proposed date and aggregate principal amount of
the prepayment), and if such notice is given the Company shall, prepay the
outstanding principal amount of the Advances under the specified Facility in the
aggregate amount and on the date specified in such notice, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided that (x) each partial prepayment shall be in an aggregate principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
(y) any such prepayment of a Eurodollar Rate Advance other than on the last day
of the Interest Period therefor shall be accompanied by, and subject to, the
payment of any amount payable under Section 10.04(c) in respect of such
prepayment and (z) each such notice shall be made on the relevant day not later
than, in the case of prepayments of Eurodollar Rate Advances, 10:00 A.M. (New
York City time) and, in the case of prepayments of Base Rate Advances, 12:00
noon (New York City time).
(b) Mandatory Prepayments; Commitment Reductions.
(i) Asset Sales. Without limiting the obligation of the
Company to obtain the consent of the Required Lenders pursuant to
Section 6.06 to an Asset Sale not otherwise permitted hereunder, not
later than the third Business Day following the occurrence of each
Asset Sale the Company shall prepay the Advances (and/or cash
collateralize Letter of Credit Liabilities in the manner specified in
Section 2.05(d)), and the Revolving Credit Commitments shall be subject
to automatic reduction, in an aggregate amount equal to the Relevant
Percentage of the Net Available Proceeds of such Asset Sale; provided
that no prepayment shall be required pursuant to this clause (i) with
respect to:
(1) any sale, lease, assignment, transfer or other
disposition of any property to Allied, the Company or any
wholly owned Subsidiary of Allied;
(2) any sale, lease, assignment, transfer or other
disposition of inventory, obsolete or worn out assets, scrap,
Permitted Investments and cash and cash equivalents, in each
case if disposed of in the ordinary course of business for
fair value;
(3) the sale of Specialized Waste;
(4) any sale of an asset in connection with a sale
and leaseback of such asset; and
(5) any other Asset Sale of assets constituting, as
at the date of such Asset Sale, less than 2% of Total Assets
to the extent the Net Available Proceeds thereof are
reinvested in the business of members of the Allied Group
within one year of the date of such Asset Sale.
(ii) Casualty Events. Upon the date 30 days following the
receipt by any member of the Allied Group of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty
Event affecting any property of any member of the Allied Group, the
Company shall prepay the Advances (and/or cash collateralize Letter of
Credit Liabilities in the manner specified in Section 2.05(d)), and the
Revolving Credit Commitments shall be subject to automatic reduction,
in an aggregate amount, if any, equal to the Relevant Percentage of the
Net Available Proceeds of such Casualty Event; provided that no
prepayment shall be required pursuant to this clause (ii) with respect
to any Casualty Event with respect to assets constituting, as at the
date of receipt of the Net Available Proceeds thereof, less than 2% of
Total Assets to the extent such Net Available Proceeds are reinvested
in the business of members of the Allied Group within one year of the
date of such receipt. Nothing in the immediately preceding sentence
shall be deemed to limit any obligation of Allied or any of its
Subsidiaries pursuant to any of the Security Documents to remit to a
collateral or similar account (including, without limitation, a
"Collateral Account" under and as defined in the Security Documents)
maintained by the Administrative Agent pursuant to any of the Security
Documents the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event.
(iii) Specified Issuance. Upon the occurrence of each
Specified Issuance, the Company shall prepay the Advances in an amount
equal to the Relevant Percentage of the Net Available Proceeds thereof.
(iv) Change in Control. Upon the occurrence of a Change in
Control (unless otherwise consented to by the Required Lenders), the
Company shall prepay all Advances in full, the Commitments shall be
automatically and permanently reduced to zero and the Company shall
cash collateralize Letter of Credit Liabilities (less any portion
thereof for which the Company has provided an alternate letter of
credit acceptable to the relevant Issuing Banks and the Administrative
Agent) in the manner specified in Section 2.05(d).
(c) Application.
(i) Prepayments pursuant to Sections 2.05(b)(i) and (ii) shall
be applied first to the prepayment in full of the Term Advances, then
to the prepayment in full of outstanding Revolving Credit Advances
(with pro tanto reductions of the Revolving Credit Commitments) and
finally to cash collateralize Letter of Credit Liabilities in the
manner specified in paragraph (d) below.
(ii) Prepayments pursuant to Section 2.05(b)(iii) shall be
applied first to prepay outstanding Advances (pro rata to outstanding
Revolving Credit Advances and outstanding Term Advances), until the
Revolving Credit Advances have been prepaid in full, then to the
prepayment in full of outstanding Term Advances and finally to cash
collateralize Letter of Credit Liabilities in the manner specified in
paragraph (d) below.
(d) Cash Collateral for Letter of Credit Liabilities. In the
event that the Company shall be required pursuant to Section 2.05(b) to cash
collateralize Letter of Credit Liabilities, the Company shall effect the same by
paying to the Administrative Agent same day funds in an amount equal to the
required amount, which funds shall be deposited in the L/C Cash Collateral
Account until such time as the Letters of Credit shall have been terminated and
all of the Letter of Credit Liabilities paid in full. Deposits of funds in the
L/C Cash Collateral Account, releases of such funds for application to Letter of
Credit Liabilities, releases of such funds to the members of the Allied Group
and investments of funds on deposit therein shall be subject to, and effected in
accordance with, the terms of the Security Agreement.
(e) Terms Applicable to All Prepayments. All prepayments under
this Section 2.05 shall be made together with accrued interest to the date of
such prepayment on the principal amount prepaid. Each prepayment of Advances
under this Section 2.05 shall be made for the account of the relevant Lenders
according to their respective Pro Rata Shares of the principal amount of the
Advances then outstanding under the relevant Facility. All prepayments applied
to the Term Advances shall be applied to the remaining installments thereof in
inverse order of maturities.
Section 2.06. Interest.
(a) Ordinary Interest. The Company shall pay interest on the
unpaid principal amount of each Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. While such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (1) the Base
Rate in effect from time to time plus (2) the Applicable Margin in
effect from time to time, payable in arrears quarterly on each
Quarterly Date and on the date such Base Rate Advance shall be
Converted (but only on the amount Converted) or paid in full.
(ii) Eurodollar Rate Advances. While such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (1) the Eurodollar
Rate for such Interest Period for such Advance plus (2) the Applicable
Margin in effect from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each three-month anniversary of the first
day of such Interest Period occurring during such Interest Period.
(b) Post-Default Interest. If an Event of Default shall have
occurred and be continuing during any period, the Company shall, notwithstanding
anything else in this Agreement to the contrary, pay to the Administrative Agent
for the account of each Lender interest, during such period, at the applicable
Post-Default Rate on any principal of any Advance made by such Lender to the
Company, and on any other amount whatsoever then due and payable by the Company
hereunder or under the Notes held by such Lender to or for the account of such
Lender, such interest to be payable from time to time on demand.
Section 2.07. Fees.
(a) Commitment Fee. The Company hereby promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee, on the average daily Unused Revolving Credit Commitment of such
Lender (such daily average to be calculated for the period for which the
commitment fee is then payable) for the period from the Closing Date (or from
the effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender other than the Initial
Lenders) until the Revolving Credit Commitment Termination Date at the
Applicable Commitment Fee Rate, payable in arrears (x) quarterly after the date
of this Agreement on each Quarterly Date and (y) on the Revolving Credit
Commitment Termination Date.
(b) Letter of Credit Commission, Etc. The Company hereby
promises to pay to the Administrative Agent (A) for the account of each Issuing
Bank a non-refundable fronting fee of 1/4% per annum of the face amount of each
Letter of Credit issued by such Issuing Bank for the period from the date of
issuance thereof until such Letter of Credit has been drawn in full, expires or
is terminated and (B) for the account of each Lender a non-refundable commission
on such Lender's Pro Rata Share of the average daily aggregate Available Amount
of all Letters of Credit then outstanding at the Applicable Letter of Credit Fee
Rate, such fees to be payable in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and calculated, for any day, after
giving effect to any payments made under such Letter of Credit on such day.
(c) Letter of Credit Expenses. The Company shall pay to each
Issuing Bank, for its own account, such commission, issuance fees, transfer fees
and other fees and charges in connection with the issuance or administration of
the Letters of Credit issued by it as the Company and such Issuing Bank shall
agree.
Section 2.08. Conversion and Continuation of Advances.
(a) Optional Conversion. The Company may on any Business Day,
upon notice given to the Administrative Agent not later than 10:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Section 2.09, Convert all or any
portion of the Advances of one Type outstanding under a Facility (and, in the
case of Eurodollar Rate Advances, having the same Interest Period) into Advances
of the other Type under such Facility; provided that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than $5,000,000 or integral multiples of $1,000,000 in excess thereof and no
Conversion of any Advances shall result in a more than 20 separate Interest
Periods being outstanding. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
aggregate amount, Type and Facility of the Advances (and, in the case of
Eurodollar Rate Advances, the Interest Period therefor) to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Company.
(b) Certain Mandatory Conversions.
(i) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000 such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Company shall fail to select the duration of any
Interest Period for any outstanding Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01 and in clause (a) or (c) of this Section 2.08,
the Administrative Agent will forthwith so notify the Company and the
relevant Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default and upon notice from the Administrative Agent to the
Company at the request of the Required Lenders, (x) each Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, or to
Continue, Eurodollar Rate Advances shall be suspended.
(c) Continuations. The Company may, on any Business Day, upon
notice given to the Administrative Agent not later than 10:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Continuation and subject to the provisions of Sections 2.09, Continue all or any
portion of the Eurodollar Rate Advances outstanding under a Facility having the
same Interest Period as such Eurodollar Rate Advances; provided that any such
Continuation shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Continuation of Eurodollar Rate Advances shall be
in an amount not less than $5,000,000 and no Continuation of any Eurodollar Rate
Advances shall result in more than 20 separate Interest Periods being
outstanding. Each such notice of Continuation shall, within the restrictions
specified above, specify (i) the date of such Continuation, (ii) the aggregate
amount and Facility of, and the Interest Period for, the Advances being
Continued and (iii) the duration of the initial Interest Period for the
Eurodollar Rate Advances subject to such Continuation. Each notice of
Continuation shall be irrevocable and binding on the Company.
Section 2.09. Increased Costs, Illegality, Etc.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of (to the extent any such introduction or change
occurs after the date hereof) any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
adopted or made after the date hereof (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances under any Facility, then
the Company shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided that, before making any such demand,
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Company
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender determines in good faith that compliance
with any law or regulation enacted or introduced after the date hereof or any
guideline or request from any central bank or other governmental authority
adopted or made after the date hereof (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type or the
issuance of the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), the Company shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder or to
the issuance or maintenance of any Letters of Credit. A certificate as to such
amounts submitted to the Company by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, (i) the
Required Lenders reasonably determine and notify the Administrative Agent that
the Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
or (ii) if fewer than two Reference Banks furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances, the Administrative Agent shall forthwith so notify the Company and the
Lenders, whereupon (x) each Eurodollar Rate Advance will automatically, on the
last day of any then existing Interest Period therefor, Convert to a Base Rate
Advance, and (y) the obligation of the Lenders to make, or to Convert Advances
into, or to Continue, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Company and such Lenders that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of (to the extent
any such introduction or change occurs after the date hereof) any law or
regulation shall make it unlawful, or any central bank or other governmental
authority having appropriate jurisdiction shall assert in writing after the date
hereof that it is unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice
thereof and demand therefor by such Lender to the Company through the
Administrative Agent, (i) each Eurodollar Rate Advance of such Lender will
automatically, upon such demand, Convert to a Base Rate Advance and (ii) the
obligation of such Lender to make, or to Convert Advances into, or to Continue,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Company that such Lender has determined that the circumstances
causing such suspension no longer exist; provided that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
(e) The Company shall not be obligated to pay any additional
amounts arising pursuant to clauses (a) and (b) of this Section 2.09 that are
attributable to the Excluded Period with respect to such additional amount;
provided that if an applicable law, rule, regulation, guideline or request shall
be adopted or made on any date and shall be applicable to the period (a
"ss.2.09(e) Retroactive Period") prior to the date on which such law, rule,
regulation, guideline or request is adopted or made, the limitation on the
Company's obligation to pay such additional amounts hereunder shall not apply to
the additional amounts payable in respect of such ss.2.09(e) Retroactive Period
so long as the Company receives written notice of such law, rule, regulation,
guideline or request from the Administrative Agent or any Lender within 180 days
after its adoption.
Section 2.10. Payments and Computations.
(a) The Company shall make each payment hereunder and under
the Notes not later than 12:00 Noon (New York City time) on the day when due in
U.S. Dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds and without deduction, set-off or counterclaim. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or commitment fees under or in
respect of a particular Facility ratably (other than amounts payable pursuant to
Section 2.09(a), 2.09(b), 2.11, 2.13(d) or 10.04(c), or amounts payable to the
Issuing Banks in respect of Letters of Credit) to the relevant Lenders for the
account of their Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 10.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, and the Company has not otherwise
directed how such funds are to be applied (which direction is consistent with
the terms of the Loan Documents), the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender ratably in
accordance with such Lender's proportionate share of the principal amount of all
outstanding Revolving Credit Advances, then to such Lenders proportionate share
of the principal amount of all outstanding Term Advances and then to the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to such
Lender, and for application to such principal installments, as the
Administrative Agent shall direct.
(c) The Company hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made by the Company when due hereunder
or under any Note held by such Lender, to charge from time to time against any
or all of the Company's accounts with such Lender any amount so due (with notice
to the Administrative Agent and the Company promptly following such charge).
(d) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks.
(e) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days (or, in the case of Base Rate Advances bearing interest based upon
clause (a) in the definition of "Base Rate" in Section 1.01, 365 or 366 days, as
the case may be), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder made in
accordance with the provisions of this Agreement shall be conclusive and binding
for all purposes, absent manifest error.
(f) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(g) Unless the Administrative Agent shall have received notice
from the Company prior to the date on which any payment is due to any Lender
hereunder that the Company will not make such payment in full, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Company shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.11. Taxes.
(a) Any and all payments by each Obligor hereunder or under
the Notes shall be made, in accordance with Section 2.10, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Tax Indemnitee, income and franchise taxes and
general taxes on capital imposed on such Tax Indemnitee by a jurisdiction as a
result of such Tax Indemnitee being organized under the laws of such
jurisdiction (or a political subdivision thereof) or of its principal office or
Applicable Lending Office being located in such jurisdiction (or a political
subdivision thereof) (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If an Obligor shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note to any Tax Indemnitee, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.11) such Tax Indemnitee receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Obligor shall
make such deductions and (iii) such Obligor shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Obligor agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made by it hereunder or under the
Notes or from the execution, delivery or registration of this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
(c) Each Obligor will indemnify each Tax Indemnitee for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.11) paid by such Tax Indemnitee and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto; provided that the Obligors shall not be liable for any such Taxes,
Other Taxes or liability that is found in a final, non-appealable judgment to
have resulted from (1) the gross negligence or willful misconduct of such Tax
Indemnitee or (2) the failure by the Administrative Agent to perform any of its
obligations under this Agreement (but only to the extent such failure is found
in a final, non-appealable judgment to have resulted from the gross negligence
or willful misconduct of the Administrative Agent). This indemnification shall
be made within 30 days from such date such Tax Indemnitee makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Obligor will furnish to the Administrative Agent, at its address referred
to in Section 10.02, appropriate evidence of payment thereof. If such Obligor
shall make a payment hereunder or under the Notes through an account or branch
outside the United States, or a payment is made on behalf of such Obligor by a
payor that is not a United States Person, such Obligor will, if no taxes are
payable in respect of such payment, furnish, or will cause such payor to
furnish, to the Administrative Agent, at such address, a certificate from the
appropriate taxing authority or authorities, or an opinion of counsel acceptable
to the Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States Person" has the meanings
specified in Section 7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Initial Lender) and on the date
of the Assignment and Acceptance pursuant to which it became a Lender (in the
case of each other Lender), and from time to time thereafter if requested in
writing by the Company or the Administrative Agent or promptly upon the
occurrence of any event requiring a change in the last form delivered by such
Lender (but, in each case, only so long as such Lender remains lawfully able to
do so after the date such Lender becomes a Lender hereunder), provide the
Administrative Agent and the Company with either (i) Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party that reduces
the rate of withholding tax on payments under this Agreement and the Notes or
certifying that the income receivable pursuant to this Agreement and the Notes
is effectively connected with the conduct of a trade or business in the United
States or (ii) Internal Revenue Service form W-8, upon which the Company is
entitled to rely, from a Lender that has not at the time such Lender becomes a
Lender hereunder been named in any notice issued by the Secretary of the
Treasury (or such Secretary's authorized delegate) pursuant to Sections
881(c)(2)(B) or 871(h)(5) of the Code, or any successor form or statement
prescribed by the Internal Revenue Service in order to establish that such
Lender is entitled to treat the interest payments under this Agreement and the
Notes as portfolio interest that is exempt from withholding tax under the Code,
together with a certificate stating that such Lender is not described in Section
881(c)(3) of the Code. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero (or if the Lender cannot provide at such
time such form because it is not entitled to reduced withholding under a treaty,
the payments are not effectively connected income and the payments do not
qualify as portfolio interest), withholding tax at such rate (or at the then
existing U.S. statutory rate if the Lender cannot provide the form) shall be
excluded from Taxes unless and until such Lender provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be excluded from Taxes for periods governed by such form;
provided that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to the extent
such tax results in liability for such payments, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States interest withholding tax,
if any, applicable with respect to the Lender assignee on such date.
(f) For any period with respect to which a Lender has failed
to provide the Company and the Administrative Agent with the appropriate form
described in Section 2.11(e) (other than if such failure is due to a change in
law occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under paragraph (e) above),
such Lender shall not be entitled to indemnification under paragraph (a) or (c)
above with respect to Taxes imposed by the United States.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.11 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office(s) if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) Without prejudice to the survival of any other agreement
of the Obligors hereunder, the agreements and obligations of the Obligors
contained in this Section 2.11 shall survive the payment in full of principal
and interest hereunder and under the Notes.
Section 2.12. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on account of the
Advances owing to it under either Facility (other than pursuant to Section
2.09(a), 2.09(b), 2.11, 2.13(d) or 10.04(c), or payments to the Issuing Banks in
respect of Letters of Credit) in excess of its ratable share of payments on
account of the Advances under such Facility obtained by all the relevant
Lenders, such Lender shall forthwith purchase from the other relevant Lenders
such participations in the Advances under such Facility owing to them as shall
be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
relevant Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.12 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Company in the amount of such participation.
Section 2.13. Letters of Credit.
(a) Issuance of Letters of Credit, Etc. On the Closing Date,
all Existing Letters of Credit shall automatically, without any action on the
part of any Person, be deemed to be Letters of Credit hereunder for all purposes
of this Agreement and the other Loan Documents. In addition, on and after the
Closing Date the Company may request the Issuing Banks to issue or have
outstanding, on the terms and conditions hereinafter set forth, letters of
credit for the account of the members of the Allied Group (collectively with the
Existing Letters of Credit, the "Letters of Credit") from time to time on any
Business Day during the period from the Closing Date until the date 90 days
prior to the Revolving Credit Commitment Termination Date; provided that:
(i) the aggregate Available Amount of all Letters of Credit
shall not exceed at any time the Letter of Credit Sublimit and the
aggregate outstanding principal amount of all Revolving Credit Advances
when added to the aggregate amount of Letter of Credit Liabilities
shall not exceed the aggregate Revolving Credit Commitments on such
Business Day;
(ii) no Letter of Credit shall have an expiration date later
than, or shall permit the account party or the beneficiary to require
the renewal thereof to a date beyond, the date 30 days prior to the
Revolving Credit Commitment Termination Date.
On each day during the period commencing with the issuance by an
Issuing Bank of any Letter of Credit and until such Letter of Credit shall have
been drawn in full or expired or been terminated, the Revolving Credit
Commitment of each Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to such Lender's Pro Rata Share of the then
undrawn amount of such Letter of Credit. Each Letter of Credit shall be
denominated and payable in U.S. Dollars.
(b) Request for Issuance.
(i) Each Letter of Credit shall be issued upon notice, given
not later than 1:00 P.M. (New York City time) three Business Days prior
to the date of the proposed issuance of such Letter of Credit, by the
Company to the relevant Issuing Bank and the Administrative Agent,
which shall give to each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telex or telecopier, confirmed
promptly in writing, specifying therein (A) the requested date of such
issuance (which shall be a Business Day), (B) the Available Amount
requested for such Letter of Credit, (C) the identity of the relevant
Issuing Bank with respect to such Letter of Credit, (D) the expiration
date of such Letter of Credit, (E) the account party or parties for
such Letter of Credit, (F) the name and address of the beneficiary of
such Letter of Credit and (G) the form of such Letter of Credit,
together with a description of the nature of the transactions or
obligations proposed to be supported thereby. If the requested form of
such Letter of Credit is acceptable to the relevant Issuing Bank in its
sole discretion, such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of
Credit available to the Company at its office referred to in Section
10.02 or as otherwise agreed with the Company in connection with such
issuance.
(ii) Each Issuing Bank shall furnish (A) to the Administrative
Agent on the first Business Day of each week a written report
summarizing the issuance and expiration dates of Letters of Credit
issued by it during the previous week and drawings during such week
under all Letters of Credit issued by it, (B) to each Lender and to the
Company on the first Business Day of each month, a written report
summarizing the issuance and expiration dates of the Letters of Credit
issued by it during the preceding month and drawings during such month
under all Letters of Credit issued by it and (C) to the Administrative
Agent and each Lender on the first Business Day of each calendar
quarter, a written report setting forth the average daily aggregate
Available Amount during the preceding calendar quarter of all Letters
of Credit issued by it.
(c) Drawing and Reimbursement.
(i) The payment by an Issuing Bank of a draft drawn under any
Letter of Credit shall constitute for all purposes of this Agreement
the making by such Issuing Bank of an advance to the Company in the
amount of such payment, which the Company agrees to repay on demand
and, if not paid on demand, shall bear interest, from the date demanded
to the date paid in full (and which interest shall be payable on
demand), (x) from and including the date of demand to but not including
the second Business Day thereafter at the Base Rate in effect for each
such day plus the Applicable Margin in effect for each such day, and
(y) from and including said second Business Day thereafter at the
Post-Default Rate. Without limiting the obligations of the Company
hereunder, upon demand by such Issuing Bank through the Administrative
Agent, each Lender having a Revolving Credit Commitment shall make
Revolving Credit Advances in an aggregate amount equal to the amount of
such Lender's Pro Rata Share of such advance by making available for
the account of its Applicable Lending Office to the Administrative
Agent for the account of such Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to
the sum of (A) its Pro Rata Share of the outstanding principal amount
of such advance plus (B) interest accrued and unpaid to and as of such
date on the outstanding principal amount of such advance.
(ii) Each Lender agrees to make such Revolving Credit Advances
on the Business Day on which demand therefor is made by such Issuing
Bank through the Administrative Agent (provided that notice of such
demand is given not later than 12:00 Noon (New York City time) on such
Business Day) or (if notice of such demand is given after such time)
the first Business Day next succeeding such demand.
(iii) If and to the extent that any Revolving Credit Lender
shall not have so made the amount of such Revolving Credit Advance
available to the Administrative Agent for the account of such Issuing
Bank, such Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from
the date of demand by such Issuing Bank until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate.
(iv) The Revolving Credit Advances provided for in this
Section 2.13 shall be made by the Lenders irrespective of whether there
has occurred and is continuing any Default or Event of Default or of
whether any other condition precedent specified in Article III has not
been satisfied, and the obligation of each Lender under the Revolving
Credit Facility to make such Revolving Credit Advances is absolute and
unconditional.
(d) Increased Costs.
(i) If any change in any law or regulation or in the
interpretation thereof (to the extent any such change occurs after the date
hereof) by any court or administrative or governmental authority charged with
the administration thereof shall either (x) impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of credit or
guarantees issued by, or assets held by, or deposits in or for the account of,
any Issuing Bank or any Lender or (y) impose on any Issuing Bank or any Lender
any other condition regarding this Agreement, such Issuing Bank or such Lender
or any Letter of Credit, and the result of any event referred to in the
preceding clause (x) or (y) shall be to increase the cost to such Issuing Bank
or such Lender of issuing or maintaining any Letter of Credit or any commitment
hereunder in respect of Letters of Credit, then, upon demand by such Issuing
Bank or such Lender, the Company shall immediately pay to such Issuing Bank or
such Lender, from time to time as specified by such Issuing Bank or such Lender,
additional amounts that shall be sufficient to compensate such Issuing Bank or
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Company by such Issuing Bank or such Lender
shall be conclusive and binding for all purposes, absent manifest error.
(ii) The Company shall not be obligated to pay any additional
amounts arising pursuant to this Section 2.13(d) that are attributable to the
Excluded Period with respect to such additional amounts; provided that if an
applicable law, rule, regulation, guideline or request shall be adopted or made
on any date and shall be applicable to the period (a "ss.2.13(d) Retroactive
Period") prior to the date on which such law, rule, regulation, guideline or
request is adopted or made, the limitation on the Company's obligation to pay
such additional amounts hereunder shall not apply to the additional amounts
payable in respect of such ss.2.13(d) Retroactive Period so long as the Company
receives written notice of such law, rule, regulation, guideline or request from
the Administrative Agent or any Lender within 180 days after its adoption.
(e) Obligations Absolute. The Obligations of the Company under
this Agreement and any other L/C Related Document shall, to the extent permitted
by law, be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of such L/C Related Document under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any one or more
of such other documents and agreements, including, but not limited to,
the L/C Related Documents;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Company in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the relevant Issuing
Bank or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the relevant Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit, except to the extent
that such payment resulted from such Issuing Bank's willful misconduct
or gross negligence, as found in a final, non-appealable judgment by a
court of competent jurisdiction, in determining whether such draft or
certificate complies on its face with the terms of such Letter of
Credit;
(vi) any exchange, release or nonperfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of the
Obligations of the Company in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
(f) Additional Issuers of Letters of Credit. At the reasonable
request of the Company, the Administrative Agent shall appoint a Lender or an
Affiliate of a Lender (in each case, an "LC Issuer") to issue one or have
outstanding one or more specific Letters of Credit hereunder in accordance with
the terms hereof, provided that:
(1) such appointment shall in no way be deemed to be a
resignation or removal of any other Issuing Bank hereunder;
(2) such appointment shall be subject to the consent of such
LC Issuer and an acknowledgment from such LC Issuer that it shall
perform its obligations as an Issuing Bank hereunder in accordance with
the terms hereof (and, if such LC Issuer is not a Lender, the Affiliate
of such LC Issuer that is a Lender shall have acknowledged that such
Lender shall ensure the performance of such LC Issuer's obligations
hereunder);
(3) each Initial Lender shall be deemed to be an "LC Issuer"
with respect to the Existing Letters of Credit (if any) issued by it;
and
(4) unless the context otherwise requires, each reference
herein and in the other Loan Documents to the "Issuing Bank" shall be
deemed to include reference to such LC Issuers.
Section 2.14. Replacement of Lender.
(a) Subject to clause (b) below, if any Lender requests
compensation pursuant to Section 2.09(a), 2.09(b), 2.11 or 2.13(d), or the
obligation of any Lender to make, or to Convert Base Rate Advances into, or to
Continue, Eurodollar Rate Advances shall be suspended pursuant to Section
2.09(c) or 2.09(d) (such Lender being herein called an "Affected Lender"), then,
so long as such condition exists, the Company may, after the date 30 days after
the date of such request or suspension, (x) designate an Eligible Assignee
acceptable to the Administrative Agent and each Issuing Bank (which acceptance
will not be unreasonably withheld) that is not an Affiliate of the Company (such
Eligible Assignee being herein called a "Replacement Lender") to assume the
Affected Lender's Commitments and other obligations hereunder and to purchase
the Affected Lender's Advances and other rights under the Loan Documents (all
without recourse to or representation or warranty by, or expense to, the
Affected Lender) for a purchase price equal to the aggregate principal amount of
the outstanding Advances held by the Affected Lender plus all accrued but unpaid
interest on such Advances and accrued but unpaid fees owing to the Affected
Lender (and upon such assumption, purchase and substitution, and subject to the
execution and delivery to the Administrative Agent by the Replacement Lender of
documentation satisfactory to the Administrative Agent and compliance with the
requirements of Section 10.07(c), the Replacement Lender shall succeed to the
rights and obligations of the Affected Lender hereunder and the other Loan
Documents); (y) pay to the Affected Lender all amounts payable to such Affected
Lender under Section 10.04(c), calculated as if the purchase by the Replacement
Lender constituted a mandatory prepayment of Advances by the Company, and (z)
pay to the Administrative Agent the processing and recordation fee specified in
Section 10.07(a)(vi) with respect to such assignment. If the Company exercises
its rights under the preceding sentence, the Affected Lender shall no longer be
a party hereto or have any rights or obligations hereunder or under the other
Loan Documents; provided that the obligations of the Company to the Affected
Lender under Sections 2.09, 2.11 and 10.04 with respect to events occurring or
obligations arising before or as a result of such replacement shall survive such
exercise.
(b) The Company may not exercise its rights under this Section
2.14 (i) with respect to any Affected Lender unless the Company simultaneously
exercises such rights with respect to all Affected Lenders or (ii) if a Default
or an Event of Default has occurred and is then continuing.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Initial Extensions of Credit.
The obligation of any Lender or Issuing Bank to make its initial extension of
credit hereunder (whether by making an Advance or issuing a Letter of Credit) is
subject to the condition precedent that (1) such extension of credit shall be
made on or before June 30, 1998 and (2) the Administrative Agent shall have
received the following in form and substance satisfactory to it:
(a) The Notes, duly executed by the Company.
(b) The following documents, each dated the Closing Date
(unless otherwise specified):
(i) for each Obligor, a copy of the organizational
documents, as amended and in effect, of such Obligor certified
(as of a date reasonably close to the Closing Date) by the
Secretary of State of the jurisdiction of organization of such
Obligor; a certificate from such Secretary of State dated as
of a date reasonably close to the Closing Date as to the good
standing of and organizational documents filed by such
Obligor; and evidence from each Obligor that it is qualified
to do business in each jurisdiction where such qualification
is required;
(ii) for each Obligor, a certificate of the Secretary
or an Assistant Secretary of such Obligor, dated the Closing
Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws (or operating or partnership
agreement, where applicable) of such Obligor as amended and in
effect at all times from the date on which the resolutions
referred to in clause (B) were adopted to and including the
date of such certificate, (B) that attached thereto is a true
and complete copy of resolutions (or consent by members or
partners, where applicable, to the extent required) duly
adopted by the board of directors (or members or partners,
where applicable) of such Obligor authorizing the execution,
delivery and performance of such of the Loan Documents to
which such Obligor is or is intended to be a party and the
extensions of credit hereunder, and that such resolutions (or
consent by members or partners, where applicable, to the
extent required) have not been modified, rescinded or amended
and are in full force and effect, (C) that the organizational
documents of such Obligor have not been amended since the date
of the certification thereto furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of
each officer (or member or partner, where applicable) of such
Obligor executing such of the Loan Documents to which such
Obligor is intended to be a party and each other document to
be delivered by such Obligor from time to time in connection
therewith (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice
in writing from such Obligor);
(iii) for each Obligor, a certificate of another
officer (or member or partner, where applicable) of such
Obligor, dated the Closing Date, as to the incumbency and
specimen signature of the Secretary or Assistant Secretary, as
the case may be, of such Obligor;
(c) The Pledge Agreement and the Security Agreement, in
substantially the forms of Exhibits B-1 and B-2, respectively, duly
executed by each of the intended parties thereto, together with:
(i) such appropriately completed and duly executed
copies of Uniform Commercial Code financing statements as the
Administrative Agent or any Lender shall have requested in
order to perfect the Liens created by the Security Documents
and covering the Collateral described therein;
(ii) executed documents for recordation and filing of
or with respect to such Security Documents that the
Administrative Agent or any Lender may deem necessary or
desirable in order to perfect the Liens created thereby; and
(iii) the stock certificates required to be delivered
pursuant to such Security Documents, each accompanied by
undated stock powers executed in blank.
(d) (i) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
counsel for the Obligors, in substantially the form of Exhibit D-1 and
otherwise satisfactory to the Administrative Agent and the Lenders; and
(ii) a favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., general counsel of
the Company, in substantially the form of Exhibit D-2 and otherwise
satisfactory to the Administrative Agent and the Lenders.
(e) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special New York counsel for CUSA, in substantially the form of Exhibit
E.
(f) A certificate of a Financial Officer of the Company to the
effect that:
(x) the representations and warranties contained in
each Loan Document are correct on and as of the Closing Date,
before and after giving effect to the transactions
contemplated hereby, as though made on and as of such date
(or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such
specific date); and
(y) no event has occurred and is continuing that
constitutes a Default or an Event of Default.
(g) Evidence of the existence of all insurance required to be
maintained by Allied and its Subsidiaries hereunder, together with
evidence that the Administrative Agent on behalf of the Secured Parties
is an additional insured or loss payee (to the extent required under
Section 5.02).
(h) Evidence of receipt of all governmental and third party
consents and approvals necessary in connection with this Agreement and
that the same remain in effect.
(i) The results of a recent lien search in each of the
jurisdictions requested by the Administrative Agent, and such searches
shall reveal no liens on any of the assets of any Obligor except for
Liens permitted by Section 6.02 or Liens to be discharged on or prior
to the Closing Date pursuant to documentation satisfactory in form and
substance to the Administrative Agent.
(j) Evidence that the Company shall have paid all fees
required to be paid, and all expenses for which invoices have been
presented, on or before the Closing Date (including, without
limitation, the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, special New York counsel to CUSA).
(k) Evidence that the Company shall have repaid (or is
simultaneously repaying) all amounts owing under the Existing Credit
Agreement, that all letters of credit issued under the Existing Credit
Agreement shall have expired or been terminated, that all commitments
to lend thereunder shall have been (or shall simultaneously be)
terminated and that all Liens securing such obligations have been
released in a manner satisfactory to the Administrative Agent.
(l) Such environmental assessments as the Administrative Agent
may reasonably request.
(m) Such other approvals, opinions and documents relating to
this Agreement and the transactions contemplated hereby as any Lender
or any Issuing Bank may, through the Administrative Agent, reasonably
request.
Section 3.02. Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Lender to make an Advance on the occasion of each
Borrowing (excluding, however, the making of any Advance pursuant to Section
2.13), and the right of the Company to request the issuance of Letters of
Credit, shall be subject to the further conditions precedent that on the date of
such Borrowing or issuance the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing or Notice of Issuance and the
acceptance by the Company of the proceeds of such Borrowing or of such Letter of
Credit shall constitute a representation and warranty by the Company that on the
date of such Borrowing or issuance such statements are true):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Borrowing or issuance, before and after giving effect to such
Borrowing or issuance and to the application of the proceeds therefrom,
as though made on and as of such date (or, if any such representation
or warranty is expressly stated to have been made as of a specific
date, as of such specific date);
(b) no event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default or an Event of Default; and
(c) such Borrowing or issuance is permitted under the terms of
the Allied Senior Notes Indenture (including, without limitation, under
Sections 1008 and 1009 thereof) and under the terms of the Allied Waste
Senior Subordinated Notes Indenture (including, without limitation,
under Section 1008 thereof).
Section 3.03. Determinations Under Section 3.01.
For purposes of determining compliance with the conditions specified in
Section 3.01, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Lender prior to the Closing Date specifying its objection thereto and such
Lender shall not have made available to the Administrative Agent such Lender's
ratable portion of the Borrowings made on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Administrative
Agent, each Issuing Bank and each of the Lenders that:
Section 4.01. Organization; Powers. It (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to have a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Company, to borrow hereunder.
Section 4.02. Authorization.
The execution, delivery and performance by each Obligor of each of the Loan
Documents to which such Obligor is a party and the other Credit Agreement
Transactions:
(a) have been duly authorized by all requisite corporate and,
if required, stockholder action;
(b) in the case of Allied and the Company, will not (i)
violate (A) any provision of law, statute, rule or regulation, or of
the certificate or articles of incorporation or other constitutive
documents or by-laws, (B) any order of any Governmental Authority or
(C) any provision of any indenture, agreement or other instrument to
which Allied or the Company is a party or by which either of them or
any of their property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of
time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any
obligation under any such indenture, agreement or other instrument or
(iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by
Allied or the Company (other than any Lien created hereunder or under
the Security Documents); and
(c) in the case of members of the Allied Group (other than
Allied and the Company), will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws, (B) any order
of any Governmental Authority or (C) any provision of any indenture,
agreement or other instrument to which any of them is a party or by
which any of them or any of their property is or may be bound, (ii) be
in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or
other instrument or (iii) result in the creation or imposition of any
Lien upon or with respect to any property or assets now owned or
hereafter acquired by any of them (other than any Lien created
hereunder or under the Security Documents and Liens permitted under
Section 6.02), in each case other than violations, conflicts and
breaches referred to in clauses (i) and (ii) above that could not,
either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect or result in any liability of the
Administrative Agent or any Lender.
Section 4.03. Enforceability.
This Agreement has been duly executed and delivered by Allied and the Company
and constitutes, and each other Loan Document when executed and delivered by
each Obligor party thereto will constitute, a legal, valid and binding
obligation of such Obligor enforceable against such Obligor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
Section 4.04. Governmental Approvals.
No action, consent or approval of, registration or filing with or any other
action by any Governmental Authority is or will be required in connection with
the Credit Agreement Transactions, except for (a) the filing of Uniform
Commercial Code financing statements and other similar filings to perfect the
interests of the Secured Parties in the Collateral, (b) such as will have been
made or obtained and will be in full force and effect as of the Closing Date,
(c) such as may be required in the ordinary course of business in connection
with the performance of the obligations of Allied and the Company hereunder and
(d) such as may be required in connection with sales of capital stock or other
ownership interests of the Company or any of its Subsidiaries as part of
foreclosure proceedings with respect to such capital stock or other ownership
interests under the Security Documents.
Section 4.05. Financial Statements.
(a) Allied has heretofore furnished to the Lenders the
Consolidated balance sheet and statements of income, stockholders' equity and
cash flows of Allied and its Subsidiaries on a Consolidated basis (1) as of and
for the fiscal year ended December 31, 1997, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, and (2) as of and for the fiscal quarter and the
portion of the fiscal year ended March 31, 1998, certified by the chief
financial officer of Allied. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of Allied and its Subsidiaries as of such dates and for such periods in
accordance with U.S. generally accepted accounting principles consistently
applied, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (2) of the first sentence of
this paragraph.
(b) Allied has hereto furnished to the Lenders projected
Consolidated balance sheets and statements of income, stockholders' equity and
cash flows of Allied and its Subsidiaries (covering the period ending on
December 31, 2003). Such projected financial statements have been based on
estimates believed by Allied to be reasonable at the time such projections were
furnished to the Lenders.
Section 4.06. No Material Adverse Change.
Since December 31, 1997, there has been no material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Allied and its Subsidiaries, taken as a whole.
Section 4.07. Title to Properties; Possession Under Leases.
(a) Each member of the Allied Group has good title to, or
valid leasehold interests in, all properties and assets which are material to
the Allied Group, taken as a whole, except for minor defects in title that do
not materially interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes.
All such material properties and assets are free and clear of Liens, other than
Liens expressly permitted by the Loan Documents.
(b) Each member of the Allied Group has complied with all
obligations under all leases which are material to the Allied Group, taken as a
whole, to which it is a party and all such leases are in full force and effect,
except where failure to do so or failure of such leases to be in full force and
effect could not reasonably be expected to have a Material Adverse Effect. Each
member of the Allied Group enjoys peaceful and undisturbed possession under all
such material leases, except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section 4.08. Subsidiaries; Other Equity Investments.
(a) Part A of Schedule 4.08 sets forth as of June 1, 1998 a
list of all Subsidiaries of Allied. Each such Subsidiary is a wholly owned
Subsidiary except as otherwise indicated on Schedule 4.08. The shares of capital
stock or other ownership interests issued by the Company and the other
Subsidiaries of Allied and owned by members of the Allied Group are fully paid
and non-assessable and are owned by Allied or the Company, directly or
indirectly, free and clear of all Liens (other than Liens permitted by the Loan
Documents).
(b) Part B of Schedule 4.08 sets forth as of June 1, 1998 a
list of all equity investments (other than equity investments in Subsidiaries
referred to in Part A of said Schedule 4.08) held by Allied or any of its
Subsidiaries in any Person, and, for each such investment (i) the identity of
the Person or Persons holding such investment and (ii) the nature of such
investment.
(c) Part C of Schedule 4.08 sets forth as of the date hereof a
list of each Subsidiary of the Company that is inactive and that has total
assets of less than $10,000 (each, an "Inactive Subsidiary").
Section 4.09. Litigation; Compliance with Laws.
(a) Except as set forth on Schedule 4.09, there are no
actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of any Obligor,
threatened against or affecting any member of the Allied Group or any business,
property or rights of any such Person (i) that involve any Loan Document or the
Credit Agreement Transactions or (ii) as to which there is a reasonable
likelihood of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(b) No member of the Allied Group or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits), or is
in default with respect to any judgment, writ, injunction, decree or order of
any Governmental Authority, where such violation or default could reasonably be
expected to have a Material Adverse Effect.
Section 4.10. Agreements.
No member of the Allied Group is in default in any manner under any provision
of any indenture or other agreement or instrument evidencing Indebtedness, or
any other material agreement or instrument to which it is a party or by which it
or any of its properties or assets are or may be bound, where such default could
reasonably be expected to have a Material Adverse Effect.
Section 4.11. Federal Reserve Regulations.
(a) No member of the Allied Group is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Advance or any Letter of
Credit will be used by any member of the Allied Group, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board of Governors of the Federal Reserve System, including
Regulation U or X.
Section 4.12. Investment Company Act; Public Utility Holding Company Act. No
member of the Allied Group is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 4.13. Tax Returns.
Each member of the Allied Group has filed or caused to be filed all material
Federal, state and other tax returns, extensions or materials required to have
been filed by it and has paid or caused to be paid all taxes due and payable by
it and all assessments received by it, except taxes and assessments that are
being contested in good faith by appropriate proceedings and for which such
member shall have set aside on its books adequate reserves.
Section 4.14. No Material Misstatements.
None of (a) the Confidential Information Memorandum or (b) any other
information, report, financial statement, exhibit or schedule furnished by or on
behalf of Allied or the Company to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, as of the date of such statements and
in the light of the circumstances under which they were, are or will be made,
not misleading; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a
forecast, projection or expressions of opinion, each of Allied and the Company
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
Section 4.15. Employee Benefit Plans.
Each of the Company and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder, except where
non-compliance could not reasonably be expected to have a Material Adverse
Effect. No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of the Company or any of its ERISA
Affiliates, except where such liability could not reasonably be expected to have
a Material Adverse Effect. The present value of all benefit liabilities under
each Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more than $3,000,000
the fair market value of the assets of such Plan, and the aggregate present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto, exceed by more than $3,000,000 the aggregate
fair market value of the assets of all such underfunded Plans.
Section 4.16. Environmental Matters.
Except as set forth in Schedule 4.16:
(a) the facilities and properties owned, leased or operated by
Allied, the Company and Allied's other Subsidiaries (the "Properties") do not
contain, and have not previously contained, to the Company's best knowledge
(actual or constructive) any Hazardous Materials in amounts or concentrations
which (i) constitute, or constituted a violation of, (ii) require Remedial
Action under, or (iii) could give rise to liability under, Environmental Laws,
which violations, Remedial Actions and liabilities, in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(b) the Properties and all operations of the Company and
Allied's other Subsidiaries are in compliance, and in the last five years have
been in compliance, with all Environmental Laws and all necessary Environmental
Permits have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect;
(c) there have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in connection with the
operations of the Company or Allied's other Subsidiaries, which Releases or
threatened Releases, in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(d) no member of the Allied Group has received any notice of
an Environmental Claim in connection with the Properties or the operations of
the Company or any of Allied's Subsidiaries or with regard to any Person whose
liabilities for environmental matters any member of the Allied Group has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(e) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of the Properties in a manner that could give
rise to liability under any Environmental Law, nor have the Company or any of
Allied's other Subsidiaries retained or assumed any liability, contractually, by
operation of law or otherwise, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which transportation, generation,
treatment, storage or disposal, or retained or assumed liabilities, in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 4.17. Insurance.
Schedule 4.17 sets forth a true, complete and correct description of all
material insurance maintained by Allied and the Company (including insurance
maintained by Allied or the Company for Allied's Subsidiaries) as of the Closing
Date. As of the Closing Date, such insurance is in full force and effect and all
premiums which have become due and payable have been duly paid. Each member of
the Allied Group maintains insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
Section 4.18. Labor Matters.
As of the Closing Date, there are no strikes, lockouts or slowdowns against
any member of the Allied Group pending or, to the knowledge of Allied or the
Company, threatened, which could reasonably be expected to have a Material
Adverse Effect. The hours worked by and payments made to employees of the Allied
Group do not violate the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters, in a manner
which could reasonably be expected to have a Material Adverse Effect. All
payments due from members of the Allied Group, or for which any claim may be
made against any member of the Allied Group, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of such member, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect. The consummation
of the Credit Agreement Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any member of the Allied Group is
bound, except where such event could not reasonably be expected to have a
Material Adverse Effect.
Section 4.19. Solvency.
Immediately after the consummation of the Credit Agreement Transactions to
occur on the Closing Date and immediately following the making of each Advance
and after giving effect to the application of the proceeds thereof, and taking
into account all rights of indemnity, subrogation and contribution of the
Obligors under applicable law and under Section 9.08, each Obligor is Solvent.
Section 4.20. Intellectual Property.
Each member of the Allied Group owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted,
except for any failure to so own or license Intellectual Property which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. No claim has been asserted and is pending against any
member of the Allied Group challenging or questioning the use of any
Intellectual Property by them or the validity or effectiveness of any
Intellectual Property used by them, except for any claims, which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. The use of Intellectual Property by the members of the Allied Group does
not infringe on the rights of any Person in any material respect and in any
manner which could reasonably be expected to have a Material Adverse Effect.
Section 4.21. Year 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the computer
systems of Allied and its Subsidiaries and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
systems of Allied and its Subsidiaries interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed in all material
respects by June 30, 1999. The aggregate cost to Allied and its Subsidiaries of
such reprogramming and testing, and of the reasonably foreseeable consequences
of year 2000 to Allied and its Subsidiaries resulting from reprogramming errors
and the failure of others' systems or equipment, cannot reasonably be expected
to have a Material Adverse Effect. Except for such of the reprogramming referred
to in the preceding sentence as may be necessary, the computer and management
information systems of Allied and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit Allied and its Subsidiaries to conduct its business without
the occurrence of a Material Adverse Effect.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Obligor covenants and agrees with each Lender that so
long as this Agreement shall remain in effect, until the Revolving Credit
Commitments have been terminated and the principal of and interest on each
Advance, all fees and all other expenses or amounts payable under the Loan
Documents shall have been paid in full, all Letters of Credit have been canceled
or have expired (or fully collateralized with cash or one or more letters of
credit acceptable to the relevant Issuing Banks and the Administrative Agent)
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing:
Section 5.01. Existence; Businesses and Properties. Each of the Obligors
will, and will cause each of its Subsidiaries to:
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.06, except that, after
notice to and consultation with the Administrative Agent, any
Subsidiary of Allied (other than the Company) may terminate its
existence.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business;
maintain and operate such business in substantially the manner in which
it is presently conducted and operated; comply with all applicable
laws, rules, regulations and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except for
failures to comply which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and at all
times maintain and preserve all property material to the conduct of
such business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection
therewith may be properly conducted at all times, except for failures
to maintain and preserve property that could not reasonably be expected
to have a Material Adverse Effect.
Section 5.02. Insurance.
Each of the Obligors will, and will cause each of its Subsidiaries to:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or
similar locations, including public liability insurance against claims
for personal injury or death or property damage occurring upon, in,
about or in connection with the use of any properties owned, occupied
or controlled by it; and maintain such other insurance as may be
required by law.
(b) Cause all such policies to be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative
Agent, which endorsement shall provide that, from and after the Closing
Date, if the insurance carrier shall have received written notice from
the Administrative Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the
Company or the other Obligors under such policies directly to the
Administrative Agent; and deliver original or certified copies of all
such policies to the Administrative Agent.
(c) If any separate or additional property, casualty or
"umbrella" insurance policy is known by a Responsible Officer to have
been obtained by the Company or any other member of the Allied Group,
notify the Administrative Agent thereof promptly, and promptly deliver
to the Administrative Agent a duplicate original copy of such policy.
Section 5.03. Obligations and Taxes.
Each of the Obligors will, and will cause each of its Subsidiaries
to, pay its Indebtedness and other obligations promptly and in accordance with
their terms and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or any
part thereof; provided that (x) such payment of Indebtedness shall not be
required pursuant to this Section 5.03 to the extent failure to so pay could not
reasonably be expected to have a Material Adverse Effect; and (y) such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and Allied shall have set
aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien.
Section 5.04. Financial Statements, Reports, etc.
Allied shall furnish to the Administrative Agent:
(a) within seven days after the filing of Allied's Annual
Report on Form 10-K with respect to each fiscal year (and in any event
within 105 days after the end of such fiscal year), (x) its
Consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
Allied and its Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Subsidiaries
during such year, all audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other
independent public accountants of recognized national standing
acceptable to the Administrative Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such Consolidated financial statements fairly
present the financial condition and results of operations of Allied and
its Subsidiaries on a Consolidated basis in accordance with GAAP; (y) a
calculation of the Leverage Ratio as at the last day of such fiscal
year; and (z) annual consolidating income statements for Allied and
each of its operating regions;
(b) within seven days after the filing of Allied's Quarterly
Report on Form 10-Q with respect to each of the first three fiscal
quarters of each fiscal year (and in any event within 55 days after the
end of each such fiscal quarter), (x) its Consolidated balance sheet
and related statements of operations, stockholders' equity and cash
flows showing the financial condition of Allied and its Subsidiaries as
of the close of such fiscal quarter and the results of its operations
and the operations of such Subsidiaries during such fiscal quarter and
the then elapsed portion of the fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial condition and
results of operations of Allied and its Subsidiaries on a Consolidated
basis in accordance with GAAP, subject to normal year-end audit
adjustments and lack of footnote disclosures; (y) a calculation of the
Leverage Ratio as at the last day of such fiscal quarter; and (z)
quarterly consolidating income statements for Allied;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of the accounting firm
or Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that in making its examination in
connection with rendering such opinion or certificate with respect to
such statements, such Person has not obtained knowledge that an Event
of Default or Default has occurred or, if such Financial Officer has
obtained knowledge that an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Section 6.02, 6.04, 6.05, 6.06, 6.07, 6.11 and 6.12;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any member of the Allied Group with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) within 55 days after the end of each fiscal quarter, (x) a
report in form and substance satisfactory to the Administrative Agent
of all Permitted Acquisitions consummated during such quarter, which
report shall identify, inter alia, each Permitted Acquisition having
total Acquisition Consideration of $5,000,000 or more (a "Large
Acquisition") and, for each Large Acquisition, a description of the
total Acquisition Consideration therefor; and (y) a list of all of the
Company's Domestic Subsidiaries;
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
members of the Allied Group, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request; and
(g) within 60 days after the beginning of each fiscal year, a
copy of the annual business plan of Allied and forecasts, prepared by
management of Allied, in each case in form and detail reasonably
satisfactory to the Administrative Agent, of Allied's Consolidated
balance sheets and related statements of operations and cash flows on a
quarterly basis for such fiscal year and on an annual basis for each of
the following fiscal years remaining during the term of this Agreement.
Section 5.05. Litigation and Other Notices.
Each of the Obligors will, and will cause each of its Subsidiaries to furnish
to the Administrative Agent, each Issuing Bank and each Lender:
(a) as soon as possible and in any event within five Business
Days after any Responsible Officer knows or has reason to believe that
a Default or Event of Default has occurred, written notice specifying
the nature and extent thereof and the corrective action (if any) taken
or proposed to be taken with respect thereto;
(b) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice of the filing or commencement of, or of any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against any member of the Allied Group that
could reasonably be expected to have a Material Adverse Effect;
(c) prompt written notice of any development known to any
Responsible Officer that has had, or could reasonably be expected to
have, a Material Adverse Effect; and
(d) as soon as possible and in any event within five Business
Days after any Responsible Officer knows or has reason to believe that
a Change in Control has occurred or is reasonably likely to occur,
written notice of such Change in Control.
Section 5.06. Employee Benefits. Each of the Obligors will, and will cause
each of its Subsidiaries to:
(a) comply in all material respects with the applicable
provisions of ERISA and the Code, except where non-compliance could not
reasonably be expected to have a Material Adverse Effect; and
(b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible
Officer knows or has reason to know that, any ERISA Event has occurred
that, alone or together with any other ERISA Event could reasonably be
expected to result in liability of any member of the Allied Group in an
aggregate amount exceeding $5,000,000 or (ii) requiring payments by any
member of the Allied Group exceeding $2,500,000 in any year, a
statement of a Financial Officer of the Company setting forth details
as to such ERISA Event and the action, if any, that the Company
proposes to take with respect thereto.
Section 5.07. Maintaining Records; Access to Properties and Inspections.
Each of the Obligors will, and will cause each of its Subsidiaries to, keep
proper books of record and account in conformity with GAAP. Each Obligor will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender to visit and inspect the
financial records and the properties of members of the Allied Group at
reasonable times and as often as reasonably requested and to make extracts from
and copies of such financial records, and permit any representatives designated
by the Administrative Agent or any Lender to discuss the affairs, finances and
condition of members of the Allied Group with the officers thereof and
independent accountants therefor.
Section 5.08. Environmental Laws.
Each of the Obligors will, and will cause each of its Subsidiaries to:
(a) comply, and cause all lessees and other Persons occupying
its Properties to comply, in all respects with all Environmental Laws
and Environmental Permits applicable to its operations and Properties;
obtain and renew all Environmental Permits necessary for its operations
and Properties; and conduct any Remedial Action in accordance with
Environmental Laws, except where such non-compliance or failure to
obtain or renew Environmental Permits or to conduct any Remedial Action
could not reasonably be expected to have a Material Adverse Effect;
provided that no member of the Allied Group shall be required to
undertake any Remedial Action to the extent that any applicable
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances; and
(b) with respect to any Permitted Acquisition having
Acquisition Consideration in excess of $10,000,000, and any acquisition
of any other ownership or leasehold interest in, or the entry into any
agreement to conduct operations of, any landfill, transfer station or
other waste treatment or disposal facility the total consideration of
which is in excess of $10,000,000:
(i) prior to consummating any such acquisition or
commencement of any operations under any such agreement or
lease, obtain and review a favorable written assessment,
prepared by an environmental consulting firm recognized within
the municipal solid waste industry and among environmental
professionals as competent and reputable and which the Company
has reasonably determined to be suitable, that reasonably
addresses the environmental compliance and liability issues
associated with the subject of such acquisition, agreement or
lease (an "Environmental Assessment"); and
(ii) furnish such Environmental Assessment to the
Administrative Agent promptly following such acquisition or
the commencement of any operations under such an agreement or
lease.
Section 5.09. Preparation of Environmental Reports.
The Company and each other member of the Allied Group hereby agrees that, if a
Default or Event of Default caused by reason of a breach of Section 4.16 or 5.08
shall have occurred and be continuing, the Administrative Agent is authorized to
engage an environmental consulting firm selected by the Administrative Agent to
prepare, on behalf of the Administrative Agent, the Lenders and the Issuing
Banks but at the sole cost and expense of the Company, an environmental site
assessment report for the Properties which are the subject of such default,
which environmental site assessment report shall indicate the presence or
absence of Hazardous Materials and, to the extent feasible under the
circumstances, the estimated cost of any compliance or Remedial Action (if such
costs are reasonably ascertainable at such time) in connection with such
Properties. Each Obligor will, and will cause each of its Subsidiaries to,
cooperate fully with the Administrative Agent and such environmental consulting
firms in their preparation of such environmental assessment reports, including
(without limitation), permitting any representatives designated by the
Administrative Agent or such environmental consulting firms to visit and inspect
the related Properties at reasonable times and as often as reasonably requested
and to make extracts from and copies of environmental records of the members of
the Allied Group. If requested by the Company, the Company shall be entitled to
have access to the data relating to such environmental assessment reports.
Section 5.10. Further Assurances.
Each of the Obligors will, and will cause each of its Subsidiaries (other than
Inactive Subsidiaries) to:
(a) Execute any and all further documents, financing
statements, agreements and instruments, and take all further action
(including, without limitation, filing Uniform Commercial Code and
other financing statements) that the Required Lenders or the
Administrative Agent may reasonably request in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant,
preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security
Documents (subject to Liens permitted under the Loan Documents).
(b) Take such action from time to time as shall be necessary
to ensure that all Specified Subsidiaries (including Specified
Subsidiaries formed or acquired pursuant to Permitted Acquisitions) are
"Subsidiary Guarantors" hereunder, that all of the capital stock or
other ownership interests of Specified Subsidiaries owned by the
Company and the Specified Subsidiaries is pledged to the Administrative
Agent pursuant to the Security Agreement and that substantially all of
the personal property (in any event excluding landfills) of the Company
and the Specified Subsidiaries (including assets acquired pursuant to
Permitted Acquisitions) is pledged to the Administrative Agent pursuant
to the Security Agreement. Without limiting the generality of the
foregoing, in the event that the Company or any of the Specified
Subsidiaries shall form or acquire any new Subsidiary after June 1,
1998 that shall constitute a Specified Subsidiary, and in connection
with each Permitted Acquisition, the Company and the Specified
Subsidiaries will, within the Required Period therefor:
(i) cause each new Specified Subsidiary to become a
"Subsidiary Guarantor" hereunder and a "Grantor" under the
Security Agreement pursuant to an Assumption Agreement;
(ii) take and cause each new Specified Subsidiary to
take such action (including, without limitation, delivering
such shares of stock or other certificated ownership interests
and executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary to create and
perfect valid and enforceable first priority Liens (subject
only to Liens permitted under the Loan Documents) on
substantially all of the personal property (in any event
excluding landfills) of such new Specified Subsidiary and on
substantially all of the personal property (in any event
excluding landfills) acquired pursuant to each Permitted
Acquisition, as collateral security for the Obligations
hereunder and under the other Loan Documents;
(iii) deliver all certificates evidencing capital
stock or other ownership interests in such new Specified
Subsidiary owned by members of the Allied Group, each
accompanied by undated stock powers executed in blank; and
(iv) deliver such proof of corporate or other company
action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by each
Obligor pursuant to Section 3.01 on the Closing Date or as the
Administrative Agent shall have reasonably requested.
(c) At its own cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or
created, perfected security interests with respect to such of its
assets and properties (including real property but excluding landfills)
as the Administrative Agent or the Required Lenders shall designate (it
being understood that it is the intent of the parties that the
Obligations shall be secured by, among other things, substantially all
the assets of the Obligors (including real and other properties
acquired subsequent to the Closing Date, but in any event excluding
landfills)). Such security interests and Liens will be created under
Security Documents in form and substance satisfactory to the
Administrative Agent, and shall be accompanied by all such instruments
and documents (including legal opinions, title insurance policies and
lien searches) as the Administrative Agent shall reasonably request.
Notwithstanding the foregoing provisions of this Section 5.10, no member of the
Allied Group shall be required to pledge to, or create or perfect a security
interest in favor of, the Administrative Agent any property that is then subject
to a negative pledge clause permitted under Section 6.03, provided that (1) to
the extent reasonably requested by the Administrative Agent or the Required
Lenders, the Company shall use reasonable efforts to limit the property subject
to any negative pledge clause contained in documentation providing for
Indebtedness secured by Liens in accordance with Section 6.02(k); and (2) the
Company shall from time to time deliver to the Administrative Agent such
documents and other information as the Administrative Agent or any Lender may
reasonably request relating to such negative pledge clauses and the property
subject thereto.
Section 5.11. Compliance with Terms of Leaseholds.
Each of the Obligors will, and will cause each of its Subsidiaries to make all
payments and otherwise perform all obligations in respect of all leases of real
property to which a member of the Allied Group is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled, notify the
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such default
and cause each of Allied's Subsidiaries to do so, except, in any case, where the
failure to do any of the foregoing, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse Effect.
Section 5.12. Performance of Material Agreements.
Each of the Obligors will, and will cause each of its Subsidiaries to perform
and observe all of the terms and provisions of each Material Agreement, maintain
each such Material Agreement in full force and effect, enforce such Material
Agreement in accordance with its terms, and cause each of Allied's Subsidiaries
to do so, except, in any case, where the failure to do any of the foregoing,
either individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect; and take all action as may be from time to time
reasonably requested by the Administrative Agent or the Required Lenders
(through the Administrative Agent) to request and obtain information and reports
required to be provided by each other party to each such Material Agreement.
Section 5.13. Junior Indebtedness.
For so long as any Junior Indebtedness is outstanding, Allied shall deliver to
the Administrative Agent, on or prior to the last day of each fiscal year,
evidence reasonably satisfactory to the Administrative Agent that the members of
the Allied Group will be in compliance with the financial covenants (if any) set
forth therein (including compliance as a result of a waiver or amendment of the
terms thereof).
Section 5.14. Inactive Subsidiaries.
The Company shall cause each Inactive Subsidiary to be dissolved within 90
days of the date hereof; provided that if after such period the Company has not
caused any Inactive Subsidiary to be so dissolved, then each such Inactive
Subsidiary shall deemed to be (as of such 90th day) a newly formed Specified
Subsidiary for purposes of Section 5.10(b).
Section 5.15. Year 2000.
The Company will use its reasonable best efforts to ensure that any computer
systems and/or software used in the operation of Allied's or any of its
Subsidiaries' businesses is modified or replaced to the extent necessary to
prevent or avoid any the occurrence of any Material Adverse Effect as a result
of the commencement of the year 2000.
ARTICLE VI
NEGATIVE COVENANTS
Each Obligor covenants and agrees with each Lender that so
long as this Agreement shall remain in effect, until the Revolving Credit
Commitments have been terminated and the principal of and interest on each
Advance, all fees and all other expenses or amounts payable under the Loan
Documents shall have been paid in full, all Letters of Credit have been canceled
or have expired (or fully collateralized with cash or one or more letters of
credit acceptable to the relevant Issuing Banks and the Administrative Agent)
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing:
Section 6.01. Indebtedness.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness
secured by a Lien except Liens permitted by Section 6.02.
Section 6.02. Liens.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to create, incur, assume or permit to exist any Lien on any
property or assets (including stock or other securities of any Person, including
any Subsidiary of Allied) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on properties or assets of members of the Allied
Group existing on the date hereof and set forth in Schedule 6.02
(excluding, however, following the making of the initial extensions of
credit hereunder, the Indebtedness to be repaid with the proceeds of
such Advances, as indicated on Schedule 6.02); provided that such Liens
shall secure only those obligations (and extensions, renewals and
refinancings thereof) which they secure on the date hereof;
(b) Liens created under the Loan Documents;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of
business in compliance with worker's compensation, unemployment
insurance and other social security laws or regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on use of real 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 members of the Allied Group;
(h) Liens arising out of Capital Lease Obligations, so long
as such Liens (i) attach only to the property subject to the related
capitalized lease, (ii) the aggregate principal component of Capital
Lease Obligations incurred in any fiscal year shall not exceed
$50,000,000 and (iii) the aggregate principal component of Capital
Lease Obligations incurred after the Closing Date shall not exceed
$200,000,000;
(i) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII which
constitutes an Event of Default thereunder) in respect of which Allied
shall in good faith be prosecuting an appeal or proceedings for review
and in respect of which it shall have secured a subsisting stay of
execution pending such appeal or proceedings for review, provided
Allied shall have set aside on its books adequate reserves, in
accordance with GAAP, with respect to such judgment or award;
(j) Liens arising from Uniform Commercial Code financing
statements and similar documents filed on a precautionary basis in
respect of operating leases intended by the parties to be true leases
(other than any such leases entered into in violation of this
Agreement); and
(k) additional Liens on property (but not on the capital stock
or other ownership interests of any Domestic Subsidiary of the Company
or on any landfill) to secure Indebtedness (including, without
limitation, Capital Lease Obligations in addition to those permitted
under paragraph (h) of this Section 6.02) so long as the aggregate
principal amount of such Indebtedness does not at any time exceed 7.5%
of Total Assets.
Section 6.03. No Other Negative Pledge.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, enter into any agreement prohibiting or conditioning the
creation or assumption of any Lien upon any of its property or assets other
than:
(i) in favor of the Administrative Agent, the Lenders and the
Issuing Banks;
(ii) in favor of the holders of the Allied Waste Senior
Subordinated Notes, the holders of the Allied Senior Notes or any
trustee for such holders;
(iii) in connection with Indebtedness that may be secured by a
Lien in compliance with Section 6.02(a), (h), (j) or (k), provided that
such prohibition or condition does not apply to any property or assets
not subject to such Lien;
(iv) in connection with any lease permitted under Section 6.04
solely to the extent that such lease prohibits a Lien on the lease or
the property subject to such lease; or
(v) pursuant to any agreement entered into by any member of
the Allied Group in connection with an Asset Sale for the period
beginning with the date such agreement is entered into through the date
such Asset Sale is consummated, provided that (x) such negative pledge
shall only relate to the property being sold pursuant to such Asset
Sale and (y) such Asset Sale is permitted hereunder.
Section 6.04. Sale and Lease-Back Transactions.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property which it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred; provided that (1) the Company may enter into any such transaction
with respect to any lease that is (A) required to be capitalized in accordance
with GAAP, and in compliance with Section 6.02(h) or (k) or (B) is of the type
permitted by Section 6.02(j); and (2) the aggregate fair market value of
property that is the subject of such a sale-leaseback transaction after the
Closing Date shall not exceed 3.5% of Total Assets.
Section 6.05. Investments, Loans and Advances.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, purchase, hold or acquire any capital stock or other ownership
interests, evidences of Indebtedness or other securities of, make or permit to
exist any loans or advances to, or make or permit to exist any investment or any
other interest in, any other Person, except:
(a) investments by Allied and the Company (i) existing on the
date hereof and (ii) made after the date hereof in the capital stock or
other ownership interests of the Company and the Subsidiary Guarantors;
loans or advances by the Company or any wholly owned Subsidiary of
Allied to the Company or any wholly owned Subsidiary of Allied; and
loans or advances by the Company or any wholly owned Subsidiary of
Allied to Allied or by Allied to the Company or any wholly owned
Subsidiary of Allied; provided that in any event no Obligor shall make
any investments in, or loans or advances to, Reliant Insurance or any
of its Subsidiaries after the date hereof (other than in accordance
with clause (j) below);
(b) Permitted Investments;
(c) loans and advances to employees of members of the Allied
Group for travel, entertainment and relocation expenses in the ordinary
course of their business;
(d) loans by members of the Allied Group to their employees in
connection with management incentive plans not to exceed $10,000,000 at
any time outstanding; provided that such limitation shall not apply to
loans the proceeds of which are used to purchase common stock of
Allied;
(e) investments constituting Capital Expenditures permitted
under Section 6.11;
(f) investments in the capital stock or other ownership
interests of any Specified Subsidiary formed after the date hereof,
provided that (i) such capital stock or interest is pledged to the
Administrative Agent (for the benefit of the Secured Parties) pursuant
to the Security Agreement and (ii) the Company and such Subsidiary
comply with the applicable provisions of Section 5.10 with respect to
such newly formed Subsidiary;
(g) Interest Rate Protection Agreements;
(h) Permitted Call/Option Agreements;
(i) investments made after the Closing Date in joint ventures
and other business entities (in each case that are not Subsidiaries of
the Company) that are engaged in the same line or lines of business as
the Company and its Subsidiaries, or other business activities
incidental thereto, in an aggregate amount not to exceed $50,000,000;
(j) loans and advances (x) to Persons that are not
Subsidiaries or other Affiliates of Allied and (y) to Reliant
Insurance, in each case made after the Closing Date and in an aggregate
amount not exceeding $10,000,000;
(k) extensions of trade credit in the ordinary course of
business in an aggregate amount not at any time exceeding $1,000,000;
(l) receivables owing to members of the Allied Group that
arise in the ordinary course of business and are payable or
dischargeable in accordance with customary trade terms; and
(m) one or more non-hostile acquisitions by the Company or any
of its Subsidiaries of a business unit (with any associated assets)
located in the United States or capital stock or other ownership
interests (other than Margin Stock) of any other Person organized under
the laws of the United States, any state thereof or the District of
Columbia; provided that:
(1) in the case of an acquisition of assets, such
assets are to be used, and in the case of an acquisition of
capital stock or other ownership interests, the Person so
acquired is engaged in, the same line of business as the
Company and its Subsidiaries and other business activities
incidental thereto;
(2) the business acquired conducts its business
exclusively in the United States;
(3) in connection with any such acquisition involving
a merger of the Company or any of its Subsidiaries, either (x)
the Company or such Subsidiary shall be the survivor (and if
any such acquisition involves a merger of the Company and one
of its Subsidiaries, the Company shall be the survivor); or
(y) (I) the successor shall be a corporation organized and
existing under the laws of the United States of America, any
state thereof or the District of Columbia (the "Successor
Corporation") and shall expressly assume, by amendment to this
Agreement executed by the Obligors and such Successor
Corporation and in form and substance satisfactory to the
Required Lenders and the Administrative Agent, all of the
obligations of the Company or such Subsidiary, as the case may
be, hereunder and under the other the Loan Documents and (II)
in the case of a merger involving the Company, the Company
shall have delivered to the Administrative Agent a certificate
signed by an executive officer of the Company and a written
opinion of counsel satisfactory to the Administrative Agent
(who may be counsel to the Company), each stating that such
transaction and such amendment to this Agreement comply with
this Section 6.05(m) and that all conditions precedent herein
provided for relating to such transaction have been satisfied;
(4) immediately prior to and after giving effect to
such acquisition, no Default or Event of Default shall have
occurred and be continuing;
(5) during the Required Period with respect to such
acquisition, the Obligors shall comply with their obligations
under Section 5.10 with respect to the related Acquired
Business;
(6) in the case of an acquisition of capital stock or
other ownership interests of a Person, the Company or one of
its Subsidiaries acquires a majority of the capital stock or
other ownership interests of such Person; and
(7) the prior written consent of the Administrative
Agent and the Required Lenders shall be required with respect
to any acquisition (whether in one transaction or a series of
related transactions) where the Acquisition Consideration
therefor exceeds 40% of Consolidated EBITDA for the Rolling
Period ending on the last day of the most recent fiscal
quarter with respect to which financial statements have been
delivered pursuant to Section 5.04.
Any acquisition satisfying each of the criteria set forth in this
clause (m) is referred to herein as a "Permitted Acquisition".
Section 6.06. Mergers, Consolidations, Sales of Assets and Acquisitions.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or conduct any Asset Sale of
(in one transaction or in a series of transactions) all or any substantial part
of its assets (whether now owned or hereafter acquired), or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other Person, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Subsidiary of Allied may merge into the
Company in a transaction in which the Company is the surviving
corporation; (ii) any Subsidiary of Allied may merge into or
consolidate with any other Subsidiary of Allied in a transaction in
which the surviving entity is a wholly owned Subsidiary of Allied and
no Person other than the Company or a wholly owned Subsidiary of Allied
receives any consideration; and (iii) in connection with one or more
Permitted Acquisitions, the Company or any of its Subsidiaries may
merge with or into another Person to the extent permitted under Section
6.05(m)(3)(y) (provided that, for all purposes of this paragraph (a),
Reliant Insurance shall not merge into Allied, the Company or any other
Subsidiary of Allied);
(b) any Subsidiary of Allied (other than the Company) may
change the jurisdiction in which it is incorporated so long as the new
jurisdiction is in the United States;
(c) the Company or any of its Subsidiaries (other than Reliant
Insurance) may make Permitted Acquisitions; and
(d) the Company or any of its Subsidiaries may conduct an
Asset Sale of a type not described in this Section 6.06, provided that
(1) the Net Available Proceeds thereof are applied in the manner and to
the extent required under Section 2.05(b) and (2) any Asset Sale of
assets or stock having a fair market value in excess of 2% of Total
Assets shall not be permitted without the prior consent of the Required
Lenders.
Section 6.07. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends; Preferred Stock.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to:
(a) Declare or pay, directly or indirectly, any dividend or
make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with
respect to any shares of its capital stock or other ownership interests
or directly or indirectly redeem, purchase, retire or otherwise acquire
for value (or permit any Subsidiary of Allied to purchase or acquire)
any shares of any class of its capital stock or other ownership
interests or set aside any amount for any such purpose; provided that:
(1) Any Subsidiary of the Company may declare and pay
dividends or make other distributions to the Company.
(2) Each member of the Allied Group may declare and
pay dividends in shares of its common stock.
(3) So long as no Default or Event of Default shall
have occurred and be continuing, Allied may:
(A) declare and pay cash dividends on its
common stock, provided that the aggregate amount of
cash dividends so payable in any fiscal year of
Allied shall not exceed 50% of Allied's net income
(determined in accordance with GAAP) for the
immediately preceding fiscal year; and
(B) declare and pay cash dividends in
respect of its Cash-Pay Preferred Stock (provided
that if the initial issuance of such Cash-Pay
Preferred Stock required the approval of all or some
of the Lenders or the Administrative Agent hereunder,
then the cash dividends in respect of such Cash-Pay
Preferred Stock shall be allowed under this clause
(B) only to the extent such payments would be
required to be made under the terms of such Cash-Pay
Preferred Stock as so approved by such Lenders or the
Administrative Agent, as the case may be, without
giving effect to any subsequent amendment or
modification thereof not agreed to in writing by the
Required Lenders).
(4) The Company may declare and make dividend
payments to Allied solely to the extent necessary for Allied
to pay for administrative expenses to conduct its business in
accordance with Sections 5.01(b) and 6.09.
(5) In addition to the dividend payments referred to
in clause (4) above, the Company may declare and make dividend
payments to Allied to enable Allied to make:
(A) payments of cash interest then required
in respect of the Allied Senior Notes (but only to
the extent such payments would be required to be made
under the indenture for the Allied Senior Notes as in
effect on the Closing Date, without giving effect to
any amendment or modification thereof after the
Closing Date not agreed to in writing by the Required
Lenders);
(B) payments of cash interest then required
in respect of other Indebtedness of Allied (so long
as such Indebtedness is incurred in compliance with
the terms of this Agreement); and
(C) the dividend payments referred to in
clause (3) above,
provided that all dividend payments in accordance with this
paragraph (5) are subject to the satisfaction of the following
conditions on the date of such dividend payment and after
giving effect thereto:
(i) no Default or Event of Default shall
have occurred and be continuing; and
(ii) such dividend payment shall be made
within five days of the dates on which such interest
in respect of the Allied Senior Notes, such interest
in respect of such other Indebtedness or such cash
dividends shall be payable by Allied, as the case may
be.
(b) Permit its Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (1)
pay any dividends or make any other distributions on its capital stock
or any other ownership interest or (2) make or repay any loans or
advances to the Company or the parent of such Subsidiary, except for:
(x) restrictions under the Allied Waste Senior
Subordinated Notes and the Allied Senior Notes (or any
restrictions under any refinancings thereof permitted by the
terms of this Agreement, so long as such restrictions are no
less favorable to the Lenders (as reasonably determined by the
Administrative Agent) than restrictions under the Allied Waste
Senior Subordinated Notes or Allied Senior Notes, as the case
may be), but only to the extent such restriction restricts
dividend payments to Allied by the Company or any Subsidiary
of the Company; and
(y) pursuant to any agreement entered into by any
member of the Allied Group in connection with an Asset Sale
for the period beginning with the date such agreement is
entered into through the date that such Asset Sale is
consummated, provided that (A) such restrictions only restrict
dividends to be paid by any Subsidiary of Allied in respect of
the capital stock or assets that are being sold pursuant to
such Asset Sale and (B) such Asset Sale is permitted
hereunder.
(c) Issue any Cash-Pay Preferred Stock unless (1) the Net
Available Proceeds thereof are applied in the manner and to the extent
required under Section 2.05(b)(iii); (2) no Default or Event of Default
under Section 6.12 (determined on a pro forma basis after giving effect
to such issuance) would occur; and (3) after giving effect to such
issuance no other Default or Event of Default shall have occurred and
be continuing.
Section 6.08. Transactions with Affiliates.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except:
(a) with Allied, the Company or any wholly owned Subsidiary
of Allied; or
(b) that any member of the Allied Group may engage in any of
the foregoing transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the members of the
Allied Group than could be obtained on an arm's-length basis from
unrelated third parties.
Section 6.09. Business of Allied, Company and Subsidiaries.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to:
(a) Engage at any time, (i) in the case of the Company and
each of its Subsidiaries (other than Reliant Insurance), in any
business or business activity other than the business currently
conducted by them and business activities reasonably incidental thereto
and (ii) in the case of Allied, in any business or business activity
other than the ownership of all the outstanding stock of the Company
and all activities reasonably incidental thereto and other than being
an obligor under the Allied Senior Notes or other Indebtedness of
Allied permitted to be incurred hereunder.
(b) Enter into any general partnership arrangement other than
through a special purpose wholly owned Subsidiary, provided that any
investments associated with such general partnership shall be permitted
hereunder.
In addition, none of the Obligors will permit Reliant Insurance to engage to any
substantial extent in any line or lines of business or business activity other
than the business currently conducted by Reliant Insurance and business
activities reasonably incidental thereto.
Section 6.10. Other Indebtedness and Agreements.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to:
(a) Permit any waiver, supplement, modification, amendment,
termination or release of (i) any Material Agreement or (ii) any
indenture, instrument or agreement pursuant to which any Indebtedness
or Preferred Stock of any member of the Allied Group is outstanding in
an aggregate outstanding principal amount in excess of $25,000,000, or
modify its charter or by-laws, in each case to the extent that any such
waiver, supplement, modification, amendment, termination or release
could reasonably be expected to have a Material Adverse Effect.
(b) Make any distribution, whether in cash, property,
securities or a combination thereof, other than scheduled payments of
principal and interest as and when due (to the extent not prohibited by
applicable subordination provisions), in respect of, or pay, or offer
or commit to pay, or directly or indirectly redeem, repurchase, retire
or otherwise acquire for consideration, or set apart any sum for the
aforesaid purposes, any Junior Indebtedness, except for refinancings
(including subsequent refinancings) of Junior Indebtedness so long as
the terms of the Indebtedness issued as part of such refinancing are no
less favorable to the Lenders (as reasonably determined by the
Administrative Agent) than the Junior Indebtedness so refinanced.
(c) Make any payment or prepayment of any Indebtedness that
would violate the terms of this Agreement or of such Indebtedness, any
agreement or document evidencing, related to or securing the payment or
performance of such Indebtedness or any subordination agreement or
provision applicable to such Indebtedness.
Section 6.11. Capital Expenditures.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to, permit the aggregate amount of Capital Expenditures by members
of the Allied Group, taken as a whole, during any fiscal year to exceed the
amount of Permitted Capital Expenditures for such fiscal year.
Section 6.12. Financial Covenants.
None of the Obligors will, nor will they cause or permit any of its
Subsidiaries to:
(a) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio at any time to be less than 1.25 to 1.00.
(b) Leverage Ratio. Permit the Leverage Ratio at any time
during any period set forth below to exceed the ratio set forth below
opposite such period:
Period Maximum Ratio
From and including the Closing Date
through and including December 30, 1998 5.00 to 1.00
From and including December 31, 1998
to and including December 30, 1999 4.50 to 1.00
From and including December 31, 1999
to and including December 30, 2000 4.00 to 1.00
From and including December 31, 2000
to and including December 30, 2001 3.50 to 1.00
From and after December 31, 2001 3.00 to 1.00
(c) Interest Expense Coverage Ratio. Permit the Interest
Expense Coverage Ratio at any time during any period set forth below to
be less than the ratio set forth below opposite such period:
Period Minimum Ratio
From and including the Closing Date
through and including December 30, 1999 2.50 to 1.00
From December 31, 1999
through and including December 30, 2000 3.00 to 1.00
From and after December 31, 2000 3.50 to 1.00
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default.
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) any representation or warranty of any member of the Allied
Group made or deemed made in or in connection with any Loan Document or
the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished; or
(b) the Company shall default in the payment of any principal
of any Advance or any reimbursement obligation with respect to any
Letter of Credit when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise; or
(c) the Company shall default in the payment of any interest
on any Advance or any fee or any other amount (other than an amount
referred to in paragraph (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days; or
(d) any Obligor shall default in the due observance or
performance of any covenant, condition or agreement contained in
Section 5.01(a), 5.05 or 5.08 or in Article VI; or
(e) any Obligor shall default in the due observance or
performance of any covenant, condition or agreement contained in any
Loan Document (other than those specified in clauses (b), (c) and (d)
above) and such default shall continue unremedied for a period of 15
days after notice thereof from the Administrative Agent or any Lender
to the Company; or
(f) any member of the Allied Group shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $10,000,000 (after
giving effect to any grace period provided in the underlying
documentation providing for such Indebtedness, but in any event not in
excess of five Business Days), when and as the same shall become due
and payable, or (ii) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect
of any failure referred to in this clause (ii) is to cause, or to
permit the holder or holders of such Indebtedness or a trustee on its
or their behalf (with or without the giving of notice, the lapse of
time or both) to cause, such Indebtedness to become due prior to its
stated maturity; or
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of any Obligor, or of a
substantial part of the property or assets of any Obligor, under the
Bankruptcy Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Obligor or for a substantial part of the property or
assets of any Obligor or (iii) the winding-up or liquidation of any
Obligor; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or
(h) any Obligor shall (i) voluntarily commence any proceeding
or file any petition seeking relief under the Bankruptcy Code or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or the filing of any
petition described in clause (g) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Obligor or for a substantial
part of the property or assets of any Obligor, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its Indebtedness as it become due or (vii) take any
action for the purpose of effecting any of the foregoing; or
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against any
Obligor (or any combination of Obligors) and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of any member
of the Allied Group to enforce any such judgment; or
(j) any security interest purported to be created by any
Security Document and required hereunder or thereunder to be perfected
shall cease to be a valid, perfected, first priority (except as
otherwise expressly permitted in this Agreement or the other Loan
Documents) security interest in the securities, assets or properties
covered thereby, except to the extent that any such loss of perfection
or priority results (x) from the failure of the Administrative Agent to
maintain possession of certificates representing securities pledged
under the Security Documents (except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy) or (y) from any other
action or inaction of the Administrative Agent that is found in a
final, non-appealable judgment to constitute the gross negligence or
willful misconduct of the Administrative Agent; or the Company or any
other Obligor shall assert that any security interest purported to be
created by any Security Document and required hereunder or thereunder
to be perfected is not a valid, perfected, first priority (except as
otherwise expressly permitted in this Agreement or the other Loan
Documents) security interest in the securities, assets or properties
purported to be covered thereby; or
(k) any Loan Document shall not be for any reason, or shall be
asserted by any Obligor not to be, in full force and effect and
enforceable in accordance with its terms; or
(l) any ERISA Event that could reasonably be expected to have
a Material Adverse Effect shall have occurred and be continuing; or
(m) an Environmental Claim shall have been asserted against
any member of the Allied Group or any of their respective Affiliates,
that, in the reasonable judgment of the Required Lenders, is reasonably
likely to be determined adversely to any member of the Allied Group,
and the amount thereof (either individually or in the aggregate) is
reasonably likely to have a Material Adverse Effect (insofar as such
but after deducting any portion thereof that is reasonably expected to
be paid by other creditworthy Persons jointly and severally liable
therefor);
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Company,
declare the obligation of each Lender to make Advances and of the Issuing Banks
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Company, declare the Advances and the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Advances and
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Company; provided that in
the event of an actual or deemed entry of an order for relief with respect to
any Obligor or any of its Subsidiaries under the Bankruptcy Code, (x) the
obligation of each Lender to make Advances and of the Issuing Banks to issue
Letters of Credit shall automatically be terminated and (y) the Advances and the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Company.
Section 7.02. Actions in Respect of the Letters of Credit Upon Default.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, irrespective of whether it is taking any of the
actions described in Section 7.01 or otherwise, make demand upon the Company to,
and forthwith upon such demand the Company will, pay to the Administrative Agent
on behalf of the Lenders in same day funds at the Administrative Agent's
Account, for deposit in the L/C Cash Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding, which
funds shall be retained by the Administrative Agent in the L/C Collateral
Account as collateral security for the Letter of Credit Liabilities until such
time as the Letters of Credit shall have been terminated and all of such Letter
of Credit Liabilities paid in full.
If at any time the Administrative Agent determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Administrative Agent and the Lenders or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Company will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited and
held in the L/C Cash Collateral Account, an amount equal to the excess of (a)
such aggregate Available Amount over (b) the total amount of funds, if any, then
held in the L/C Cash Collateral Account that the Administrative Agent determines
to be free and clear of any such right and claim.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action.
Each Lender and Issuing Bank hereby appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents, to which it is a
party, as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, and shall not be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) except upon the
instructions of the Required Lenders, and such instructions shall be binding
upon all Lenders and all holders of the Notes; provided that the Administrative
Agent shall not be required to take any action that exposes it to personal
liability or that is contrary to any of the Loan Documents or applicable law.
The Administrative Agent agrees to give to the Issuing Banks and Lenders prompt
notice of each notice given to it by any Obligor pursuant to the terms of this
Agreement.
Each Lender and Issuing Bank hereby authorizes the
Administrative Agent to execute and deliver each of the Security Documents.
Section 8.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent (i) may treat the payee of any Note as
the holder thereof until the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section
10.07; (ii) may consult with legal counsel (including counsel for any Obligor),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by them in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Issuing Bank or Lender and shall not be
responsible to any of them for any statements, warranties or representations
made in or in connection with the Loan Documents; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any Loan Document on the part of any Obligor
or to inspect the property (including the books and records) of any Obligor; (v)
shall not be responsible to any Issuing Bank or Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan Document by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telegram, telecopy, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
Section 8.03. CUSA and Affiliates.
With respect to its Commitments, the Advances made by it and the Notes issued
to it, CUSA shall have the same rights and powers under the Loan Documents as
any other Lender and may exercise the same as though it were not the
Administrative Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include CUSA in its individual capacity. CUSA and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures for, accept investment banking engagements from and generally engage
in any kind of business with, any Obligor, any of its Subsidiaries, any of its
Affiliates and any Person who may do business with or own securities of any
Obligor or any such Subsidiary or Affiliate, all as if CUSA were not the
Administrative Agent and without any duty to account therefor to the Lenders or
Issuing Banks.
Section 8.04. Lender Credit Decision.
Each Lender and Issuing Bank acknowledges that it has, independently and
without reliance upon the Administrative Agent, any other Issuing Bank or any
other Lender and based on the financial statements referred to in Section 4.05
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Bank also acknowledges that it will, independently and without reliance
upon the Administrative Agent, any other Issuing Bank or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
Section 8.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to the extent not
promptly reimbursed by the Company), ratably according to the principal amounts
of the Notes then held by them, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against any of them in any way relating to or
arising out of the Loan Documents or any action taken or omitted by any of them
under the Loan Documents; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. Without limitation
of the foregoing, each Lender agrees to reimburse (x) the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Company under Section 10.04 of this Agreement and (y) the Administrative
Agent under the Security Documents, in each case to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Company.
Section 8.06. Collateral Duties.
(a) Except for action expressly required of the Administrative
Agent hereunder and under the other Loan Documents, the Administrative Agent
shall in all cases be fully justified in refusing to act hereunder and
thereunder unless it shall be further indemnified to its satisfaction by the
Lenders proportionately in accordance with the Obligations then due and payable
to each of them against any and all liability and expense that may be incurred
by it by reason of taking or continuing to take any such action.
(b) Except as expressly provided herein, the Administrative
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Collateral. The Administrative
Agent shall incur no liability as a result of any private sale of the
Collateral.
(c) The Lenders and Issuing Banks hereby consent, and agree
upon written request by the Administrative Agent to execute and deliver such
instruments and other documents as the Administrative Agent may deem desirable
to confirm such consent, to the release of the Liens on any of the Collateral,
including any release in connection with any Asset Sale of Collateral or any
part thereof consummated in accordance with the Loan Documents.
(d) The parties hereto acknowledge that the Administrative
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords its
own property, it being understood that neither the Administrative Agent nor any
Lender or Issuing Bank shall have responsibility for (1) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not the Administrative
Agent, any Lender or any Issuing Bank has or is deemed to have knowledge of such
matters, or (2) taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
Section 8.07. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Issuing Banks, the
Lenders and the Company and may be removed at any time with or without cause by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Issuing Banks and the Lenders, appoint a successor
Administrative Agent, which shall be an Initial Lender or a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent such successor Administrative Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent and such retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VIII shall inure to the benefit of the
Administrative Agent as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and under the Security
Documents.
Section 8.08. Co-Syndication Agents and other Titles.
The Co-Syndication Agents named on the cover page of this Agreement, and the
Senior Managing Agents, Managing Agents and Co-Agents identified on the
signature pages hereof, shall have no duties or liabilities to any Person
hereunder or under the other Loan Documents except in their respective separate
capacities as Lenders or Issuing Banks hereunder.
ARTICLE IX
THE GUARANTEE
Section 9.01. The Guarantee.
Each of the Guarantors hereby, jointly and severally, guarantees to each
Lender, each Issuing Bank and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of:
(a) the principal of and interest on the Advances made by the
Lenders to, and the Notes held by each Lender of, the Company and all
other amounts from time to time owing to the Lenders, the Issuing Banks
and the Administrative Agent by the Company under this Agreement and
under the Notes; and
(b) all amounts from time to time owing to the Lenders, the
Issuing Banks and the Administrative Agent by any Obligor under any of
the other Loan Documents (provided that, in the case of this clause
(b), no Guarantor shall guarantee or otherwise be liable for any
obligation or liability under the Loan Documents of any other Guarantor
that is not both (x) a "Wholly Owned Restricted Subsidiary" of the
Company as defined in the Allied Waste Senior Subordinated Notes
Indenture and (y) either Allied or a "Restricted Subsidiary" as defined
in the Allied Senior Notes Indenture),
in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Guaranteed Obligations"). The Guarantors
hereby further jointly and severally agree that if the Company shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Guaranteed Obligations, the Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
Section 9.02. Obligations Unconditional.
(a) The obligations of the Guarantors under Section 9.01 are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Company under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 9.02 that the obligations of the Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances.
(b) Without limiting the generality of the foregoing clause
(a), it is agreed that the occurrence of any one or more of the following shall
not alter or impair the liability of the Guarantors hereunder which shall remain
absolute, unconditional and joint and several, as described above:
(i) any modification or amendment (including without
limitation by way of amendment, extension, renewal or waiver), or any
acceleration or other change in the time for payment or performance of
the terms of all or any part of the Guaranteed Obligations or any Loan
Document, or any other agreement or instrument whatsoever relating
thereto, or any modification of the Commitments;
(ii) any release, termination, waiver, abandonment, lapse or
expiration, subordination or enforcement of the liability of any
Guarantor under this Article IX or of any other guarantee of all or any
part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee
(including without limitation any letter of credit or the obligations
of any other guarantor of all or any part of the Guaranteed
Obligations) to all or any part of the Guaranteed Obligations in any
such manner and to such extent as the Administrative Agent may
determine;
(iv) any release of any other Person (including without
limitation any other guarantor with respect to all or any part of the
Guaranteed Obligations) from any personal liability with respect to all
or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or
enforcement, upon such terms and in such manner as the Administrative
Agent may determine or as applicable law may dictate, of all or any
part of the Guaranteed Obligations or any other guarantee of (including
without limitation any letter of credit issued with respect to) all or
any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation
of, the sale of substantial assets by, or other restructuring or
termination of the corporate existence of the Company or any other
Person or any disposition of any shares of any Guarantor;
(vii) any proceeding against the Company or any other
guarantor of (including without limitation any issuer of any letter of
credit issued with respect to) all or any part of the Guaranteed
Obligations or any collateral provided by any other Person or the
exercise of any rights, remedies, powers and privileges of the
Administrative Agent, the Issuing Banks and the Lenders under the Loan
Documents or otherwise in such order and such manner as the
Administrative Agent may determine, regardless of whether the Lender
shall have proceeded against or exhausted any collateral, right,
remedy, power or privilege before proceeding to call upon or otherwise
enforce this Article IX;
(viii) the entering into such other transactions or business
dealings with the Company, Allied, any Subsidiary or Affiliate of the
Company or any other guarantor of all or any part of the Guaranteed
Obligations as the Administrative Agent, any Issuing Bank or any Lender
may desire; or
(ix) all or any combination of any of the actions set forth in
this Section 9.02(b).
(c) The enforceability and effectiveness of this Article IX
and the liability of the Guarantors, and the rights, remedies, powers and
privileges of the Administrative Agent, the Issuing Banks and the Lenders under
this Article IX shall not be affected, limited, reduced, discharged or
terminated, and each Guarantor hereby expressly waives to the fullest extent
permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or
any part of the Guaranteed Obligations, any Loan Document or any other
agreement or instrument whatsoever relating to all or any part of the
Guaranteed Obligations;
(ii) any disability or other defense with respect to all or
any part of the Guaranteed Obligations, including the effect of any
statute of limitations that may bar the enforcement of all or any part
of the Guaranteed Obligations or the obligations of any such other
guarantor;
(iii) the illegality, invalidity or unenforceability of any
security for or other guarantee (including without limitation any
letter of credit) of all or any part of the Guaranteed Obligations or
the lack of perfection or continuing perfection or failure of the
priority of any Lien on any collateral for all or any part of the
Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability
of the Company or any other guarantor with respect to all or any part
of the Guaranteed Obligations (other than, subject to Section 9.03
hereof, by reason of the full payment of all Guaranteed Obligations);
(v) any failure of the Administrative Agent, any Issuing Bank
or any Lender to marshal assets in favor of the Company or any other
Person (including any other guarantor of all or any part of the
Guaranteed Obligations), to exhaust any collateral for all or any part
of the Guaranteed Obligations, to pursue or exhaust any right, remedy,
power or privilege it may have against the Company or any other
guarantor of all or any part of the Guaranteed Obligations (including
any issuer of any letter of credit) or any other Person or to take any
action whatsoever to mitigate or reduce such or any other Person's
liability under this Article IX, the Administrative Agent, the Issuing
Banks and the Lenders being under no obligation to take any such action
notwithstanding the fact that all or any part of the Guaranteed
Obligations may be due and payable and that the Company may be in
default of its obligations under any Loan Document;
(vi) any counterclaim, set-off or other claim which the
Company or any other guarantor of all or any part of the Guaranteed
Obligations has or claims with respect to all or any part of the
Guaranteed Obligations;
(vii) any failure of the Administrative Agent, any Issuing
Bank or any Lender or any other Person to file or enforce a claim in
any bankruptcy or other proceeding with respect to any Person;
(viii)
shapeType1fFlipH0fFlipV0lineColor16777215fPreferRelativeResize0any
bankruptcy, insolvency, reorganization, winding-up or adjustment of
debts, or appointment of a custodian, liquidator or the like of it, or
similar proceedings commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any part of the
Guaranteed Obligations (or any interest on all or any part of the
Guaranteed Obligations) in or as a result of any such proceeding;
(ix) any action taken by the Administrative Agent, any Issuing
Bank or any Lender that is authorized by this Section 9.02 or otherwise
in this Article IX or by any other provision of any Loan Document or
any omission to take any such action;
(x) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted; or
(xi) any other circumstance whatsoever (other than payment in
full of the Guaranteed Obligations) that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor.
(d) To the fullest extent permitted by law, each Guarantor
expressly waives, for the benefit of the Administrative Agent, the Issuing Banks
and the Lenders, all set-offs and counterclaims and all diligence, presentment,
demand for payment or performance, notices of nonpayment or nonperformance,
protest, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever, and any requirement that the
Administrative Agent, any Issuing Bank or any Lender exhaust any right, power or
remedy or proceed against the Company under this Agreement, any Note or any
other Loan Document or other agreement or instrument referred to herein or
therein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations, and all notices of acceptance of this
Article IX or of the existence, creation, incurring or assumption of new or
additional Guaranteed Obligations. Each Guarantor further expressly waives the
benefit of any and all statutes of limitation, to the fullest extent permitted
by applicable law.
(e) Each Guarantor further waives any right to which it may be
entitled:
(i) that the assets of the Company first be used or depleted
in satisfaction of the Company's obligations under this Agreement; and
(ii) to require that the Company be sued and all claims
against the Company be completed prior to an action or proceeding being
initiated against such Guarantor.
Section 9.03. Reinstatement.
The obligations of the Guarantors under this Article IX shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Company in respect of the relevant Guaranteed Obligations is rescinded or
must be otherwise restored by any holder of any of the relevant Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantors jointly and severally agree that
they will indemnify the Administrative Agent, each Issuing Bank and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Administrative Agent, such Issuing Bank or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
Section 9.04. Subrogation.
To the extent that, as a result of this Article IX, any Lender or Issuing Bank
would be subject to an extended preference period under Section 547 of the
Bankruptcy Code, each Guarantor hereby waives all rights of subrogation, whether
arising by contract or operation of law (including, without limitation, any such
right arising under the Bankruptcy Code) or otherwise, by reason of any payment
by it pursuant to the provisions of this Article IX and agrees with the Company
for the benefit of each of its creditors (including, without limitation, each
Lender, each Issuing Bank and the Administrative Agent) that any such payment by
it shall constitute a contribution of capital by such Guarantor to the Company
(or an investment in the equity capital of the Company by such Guarantor).
Section 9.05. Remedies.
The Guarantors jointly and severally agree that, as between the Guarantors and
the Lenders and Issuing Banks, the obligations of the Company under this
Agreement and the Notes may be declared to be forthwith due and payable as
provided in Article VII (and shall be deemed to have become automatically due
and payable in the circumstances provided in said Article VII) for purposes of
Section 9.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against the Company and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Guarantors for purposes of said Section 9.01.
Section 9.06. Instrument for the Payment of Money.
Each Guarantor hereby acknowledges that the guarantee in this Article IX
constitutes an instrument for the payment of money, and consents and agrees that
any Lender, any Issuing Bank or the Administrative Agent, at its sole option, in
the event of a dispute by such Guarantor in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
Section 9.07. Continuing Guarantee.
The guarantee in this Article IX is a continuing guarantee, and shall apply to
all Guaranteed Obligations whenever arising.
Section 9.08. Rights of Contribution.
The Subsidiary Guarantors hereby agree, as among themselves, that if any
Subsidiary Guarantor shall become an Excess Funding Guarantor (as defined below)
by reason of the payment by such Subsidiary Guarantor of any Guaranteed
Obligations, each other Subsidiary Guarantor shall, on demand of such Excess
Funding Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Subsidiary Guarantor's Pro Rata Portion (as
defined below and determined, for this purpose, without reference to the
properties, Indebtedness and liabilities of such Excess Funding Guarantor) of
the Excess Payment (as defined below) in respect of such Guaranteed Obligations.
The payment obligation of a Subsidiary Guarantor to any Excess Funding Guarantor
under this Section 9.08 shall be subordinate and subject in right of payment to
the prior payment in full of the obligations of such Subsidiary Guarantor under
the other provisions of this Article IX and such Excess Funding Guarantor shall
not exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
For purposes of this Section 9.08, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Portion of such
Guaranteed Obligations, (ii) "Excess Payment" means, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Portion of such Guaranteed Obligations and (iii) "Pro Rata
Portion" means, for any Subsidiary Guarantor, the ratio (expressed as a
percentage) of (x) the amount by which the aggregate present fair saleable value
of all properties of such Subsidiary Guarantor (excluding any shares of stock of
any other Subsidiary Guarantor) exceeds the amount of all the Indebtedness and
liabilities of such Subsidiary Guarantor (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of such
Subsidiary Guarantor hereunder and any obligations of any other Subsidiary
Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of the
Company and all of the Subsidiary Guarantors exceeds the amount of all the
Indebtedness and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Company and the
Subsidiary Guarantors hereunder) of the Company and all of the Subsidiary
Guarantors, all as of the Closing Date. If any Subsidiary becomes a Subsidiary
Guarantor hereunder subsequent to the Closing Date, then for purposes of this
Section 9.08 such subsequent Subsidiary Guarantor shall be deemed to have been a
Subsidiary Guarantor as of the Closing Date and the aggregate present fair
saleable value of the properties, and the amount of the Indebtedness and
liabilities, of such Subsidiary Guarantor as of the Closing Date shall be deemed
to be equal to such value and amount on the date such Subsidiary Guarantor
becomes a Subsidiary Guarantor hereunder.
Section 9.09. General Limitation on Guarantee Obligations.
In any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 9.01
would otherwise, taking into account the provisions of Section 9.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 9.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Lender, any Issuing Bank, the Administrative Agent or any other
Person, be automatically limited and reduced to the highest amount that is valid
and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Consents, Etc.
(a) No amendment or waiver of any provision of this Agreement,
the Notes or the other Loan Documents, nor any consent to any departure by any
Obligor from any provision of this Agreement, the Notes or the other Loan
Documents, shall in any event be effective unless the same shall be in writing
and signed by the Company and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that:
(i) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender that would be
adversely affected by such amendment, waiver or consent:
(1) waive any of the conditions specified in
Section 3.01;
(2) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Advances, or the
number or percentage of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder;
(3) amend this Section 10.01;
(4) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder;
(5) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or amend Section 2.03 or 2.05; or
(6) release all or substantially all of the
Guarantors from their respective obligations under Article IX
or release all or substantially all of the Collateral (unless
in each case such release is permitted under Section 8.06(c)
or 10.01(b) or otherwise permitted pursuant to the terms of
the Loan Documents);
(7) increase the Commitment of such Lender or
subject such Lender to any additional obligations; or
(8) change the order of application of any prepayment
set forth in Section 2.05 in any manner that materially
affects such Lender; and
(ii) no amendment, waiver or consent shall, unless in writing
and (x) signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement, any Note or any other Loan
Document, and (y) signed by each Issuing Bank in addition to the
Lenders required to take such action, amend Section 2.07, 2.13 or 3.02,
increase the Letter of Credit Sublimit or otherwise affect the rights
or obligations of such Issuing Bank under this Agreement.
(b) Except as otherwise provided herein in the Security
Documents, the Administrative Agent shall not consent to release any Collateral
or terminate any Lien under any Security Document unless such release or
termination shall be consented to in writing by the Required Lenders; provided
that:
(1) the consent of all Lenders shall be required to release
all or substantially all of the Collateral, except upon the termination
of the Liens created by each of the Security Documents in accordance
with the terms thereof; and
(2) no such consent shall be required to release any Lien
covering property that is the subject of an Asset Sale permitted
hereunder and, upon such a permitted Asset Sale, such property shall be
deemed to be transferred free and clear of the Lien of the Security
Documents without any action on the part of any party (and the
Administrative Agent is hereby authorized to execute such releases and
other documents, and to take such other action, as the Company may
reasonably request to give effect thereto).
Section 10.02. Notices, Etc.
All notices and other communications provided for hereunder shall be in
writing (including telecopy communication) and mailed, telecopied or delivered:
(a) if to any of the Obligors, care of Allied Industries,
Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., telephone number (▇▇▇) ▇▇▇-▇▇▇▇;
telecopier number (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to any Initial Lender, at the Domestic Lending Office
specified in its Administrative Questionnaire;
(c) if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became
a Lender;
(d) if to Citibank, as Issuing Bank, at its address at ▇ ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(or his successor), telephone number (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number
(▇▇▇) ▇▇▇-▇▇▇▇;
(e) if to any other Issuing Bank, to its address referred to
in paragraph (b) or (c) above;
(f) if to the Administrative Agent, at its address at ▇ ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(or his successor), telephone number (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number
(▇▇▇) ▇▇▇-▇▇▇▇;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed or telecopied, be effective when deposited in the mails or
transmitted by telecopier, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III, VII or VIII shall not
be effective until received by the Administrative Agent.
Section 10.03. No Waiver; Remedies.
No failure on the part of any Lender, any Issuing Bank or the Administrative
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Each Obligor irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by the Administrative Agent, any Issuing Bank or any Lender relating in any way
to this Agreement should be dismissed or stayed by reason, or pending the
resolution, of any action or proceeding commenced by any Obligor relating in any
way to this Agreement whether or not commenced earlier. To the fullest extent
permitted by applicable law, the Obligors shall take all measures necessary for
any such action or proceeding commenced by the Administrative Agent, any Issuing
Bank or any Lender to proceed to judgment prior to the entry of judgment in any
such action or proceeding commenced by any Obligor.
Section 10.04. Costs, Expenses and Indemnification.
(a) The Company agrees to pay on demand (i) all costs and
expenses of the Administrative Agent, the Issuing Banks and the Lenders in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents including, without limitation,
(A) all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, insurance,
consultant, search, filing and recording fees and expenses, ongoing audit
expenses and all other reasonable out-of-pocket expenses incurred by the
Administrative Agent (including the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to CUSA) whether or not any of the
transactions contemplated by this Agreement are consummated, (B) the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto,
with respect to advising the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, and (C) with respect to negotiations with
any Obligor or with other creditors of any Obligor or any of its Subsidiaries
arising out of any Default or Event of Default or any events or circumstances
that may reasonably be expected to give rise to a Default or Event of Default
and with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Administrative Agent, the Issuing Banks and the
Lenders in connection with the enforcement of the Loan Documents, whether in any
action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the fees and expenses of counsel for the Administrative
Agent, each Issuing Bank and each Lender with respect thereto).
(b) The Company agrees to indemnify and hold harmless each
Indemnified Party from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with the Credit
Agreement Transactions or the actual or alleged presence of Hazardous Materials
on any property owned by an Obligor or any Environmental Claim relating in any
way to any Obligor or any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by any Obligor, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the Credit Agreement
Transactions or the other transactions contemplated hereby are consummated,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Company to or for the account of a
relevant Lender other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.03, 2.05,
2.08(b)(i) or 2.09(d) or as the result of acceleration of the maturity of the
Notes pursuant to Section 7.01 or for any other reason, the Company shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) If any Obligor fails to pay when due any costs, expenses
or other amounts payable by it under any Loan Document, including, without
limitation, reasonable fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Obligor by the Administrative Agent or any Lender,
in its sole discretion.
Section 10.05. Right of Setoff.
Upon (a) the occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent specified by
Section 7.01 to authorize the Administrative Agent to declare the Notes due and
payable pursuant to the provisions of Section 7.01, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other Indebtedness at
any time owing by such Lender to or for the credit or the account of the Company
against any and all of the Obligations of the Company now or hereafter existing
under this Agreement and the Note held by such Lender, irrespective of whether
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Company after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender may have.
Section 10.06. Governing Law; Submission to Jurisdiction.
This Agreement and the Notes shall be governed by, and construed in accordance
with, the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
Section 10.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it and the Note or Notes held by it); provided that:
(i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an affiliate of a
Lender or an assignment of all of a Lender's rights and obligations
under this Agreement, the amount of the Commitments of the assigning
Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than the lesser of (x) such
Lender's Commitments hereunder and (y) $10,000,000 or an integral
multiple of $1,000,000 in excess thereof (except as otherwise agreed by
the Company and the Administrative Agent);
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an Affiliate of a
Lender, each such assignment (so long as no Event of Default shall have
occurred and be continuing) shall be made only upon the prior written
approval of the Company, the Administrative Agent and, with respect to
Revolving Credit Commitments only, the Issuing Banks, such approval not
to be unreasonably withheld;
(iii) each such assignment shall be to an Eligible Assignee;
(iv) each such assignment by a Lender of its Advances,
Commitment or Note under either Facility shall be made in such manner
so that the same portion of its Advances, Commitment and Note under
such Facility is assigned to the respective assignee; and
(v) to the extent the consent of the Company and the
Administrative Agent was not required pursuant to Section 10.07(a)(ii),
the Company and the Administrative Agent shall have received notice of
such assignment, and
(vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation
fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Obligor or the performance or observance by the Obligors of any of their
respective obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.05 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, any Issuing Bank, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as a Lender; and
(viii) such assignee has provided the Company and the Administrative Agent with
the forms and documents with respect to such assignee referred to in Section
2.11(e).
(c) The Administrative Agent, acting for this purpose as an
agent of the Company, shall maintain at its address referred to in Section 10.02
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Advances owing under each Facility
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. No assignment shall be effective until it is recorded in the Register
pursuant to this Section 10.07(c). The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit F
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Company. Within five Business Days after its receipt of such notice, the
Company, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the portion of the Facilities
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a portion of such Facilities, a new Note or Notes to the
order of the assigning Lender in an amount equal to the portion so retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 and A-2, as the case may
be.
(e) Each Lender may sell participations in or to all or a
portion of its rights and/or obligations under this Agreement (including,
without limitation, all or a portion of its Commitments or the Advances owing to
it and the Note or Notes held by it); provided that (i) such Lender's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Obligors, the Administrative Agent, the Issuing Banks
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Obligor therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Guarantors from their
respective obligations under Article IX or release all or substantially all of
the Collateral (unless in each case such release is permitted pursuant to the
terms of the Loan Documents).
(f) Citibank, as Issuing Bank, may (subject to the prior
written consent of the Company, such consent not to be unreasonably withheld)
assign all or any portion of its rights and obligations under this Agreement to
one or more successor Issuing Banks that is a commercial bank organized under
the laws of the United States, or any state thereof, and having total assets in
excess of $1,000,000,000 and, upon the acceptance of such assignment, the
successor Issuing Bank shall succeed to such portion of such rights and
obligations and such assigning Issuing Bank shall be discharged from its duties
and obligations under this Agreement to such extent.
(g) Each Issuing Bank and any Lender may, in connection with
any assignment or participation or proposed assignment or participation pursuant
to this Section 10.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Company furnished to
such Lender by or on behalf of the Company; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree in writing to preserve the confidentiality of any Confidential
Information received by it from the Issuing Banks or the Lenders.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(i) Anything in this Section 10.07 to the contrary
notwithstanding, each Lender shall be permitted to pledge all or any part of its
right, title and interest in, to and under the Advances and Notes held by it to
any trustee for the benefit of the holders of such Lender's securities.
(j) Anything in this Section 10.07 to the contrary
notwithstanding, neither Allied nor any of its Subsidiaries or Affiliates may
acquire (whether by assignment, participation or otherwise), and neither any
Lender nor any Issuing Bank shall assign or participate to Allied or any of its
Subsidiaries or Affiliates, any interest in any Commitment, Advance or other
amount owing hereunder without the prior consent of each Lender.
Section 10.08. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 10.09. No Liability of the Issuing Banks.
The Company assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit. No Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit issued by
such Issuing Bank or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by such
Issuing Bank against presentation of documents that do not comply with the terms
of a Letter of Credit issued by it, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit issued by such Issuing Bank, except that the Company shall have a
claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Company, to the extent of any direct, but not consequential, damages suffered by
the Company that the Company proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit issued by it comply with the terms of such
Letter of Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit issued by it after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of such
Letter of Credit. In furtherance and not in limitation of the foregoing, each
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 10.10. Confidentiality.
Neither the Administrative Agent, any Issuing Bank nor any Lender shall
disclose any Confidential Information to any Person without the prior consent of
the Company, other than (a) to the Administrative Agent's, such Issuing Bank's
or such Lender's Affiliates and their officers, partners, directors, employees,
agents and advisors (including independent auditors and counsel) and to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process and
(c) as requested or required by any state, Federal or foreign authority or
examiner regulating or having authority over Lenders or the Lenders' respective
activities.
Section 10.11. WAIVER OF JURY TRIAL.
EACH OF THE OBLIGORS, THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING
BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES, THE
LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY
ISSUING BANK IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
Section 10.12. Survival.
The obligations of the Company under Sections 2.09, 2.11, 2.13(d) and 10.04,
the obligations of each Guarantor under Section 9.03, the obligations of the
Lenders under Section 8.05 and the obligations of the Lenders, the Issuing Banks
and the Administrative Agent under Section 10.10, shall survive the repayment of
the Advances and the termination of the Commitments. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of an Advance or a Letter of Credit),
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender or Issuing Bank shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of an
Advance or a Letter of Credit), any Default or Event of Default that may arise
by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender, Issuing Bank or the Administrative
Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such extension of
credit was made.
Section 10.13. Captions.
The table of contents and captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
Section 10.14. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, provided that no
Obligor may assign any of its rights or obligations hereunder or under the other
Loan Documents without the prior consent of all of the Lenders, the Issuing
Banks and the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ALLIED WASTE NORTH AMERICA, INC.
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
EACH PERSON LISTED ON
SCHEDULE I, as Subsidiary Guarantors
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
THE ADMINISTRATIVE AGENT
CITICORP USA, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-In-Fact
ISSUING BANK
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-In-Fact
THE
LENDERS
CITICORP USA INC., as a Lender and an
Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-In-Fact
CREDIT SUISSE FIRST BOSTON, as a Lender
and a Co-Syndication Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P., as a
Lender and a Co-Syndication Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
BANK OF AMERICA, as a Lender and a Senior
Managing Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK ONE, ARIZONA, N.A., as a Lender and a
Senior Managing Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A., as a Lender and a Senior
Managing Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, as a Lender and a
Senior Managing Agent
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
G. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender and a
Senior Managing Agent
By /s/ ▇▇▇▇ ▇. Quick
------------------------------
▇▇▇▇ ▇. Quick
Title: Senior Relationship
Manager
WACHOVIA BANK, N.A., as a Lender and a
Senior Managing Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FLEET BANK, N.A., as a Lender and a
Managing Agent
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY, as a Lender and a Managing
Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: SVP & SDGM
LONG-TERM
CREDIT
BANK OF
JAPAN,
LTD., LOS
ANGELES
AGENCY,
as a
Lender
and a
Managing
Agent
By /s/ Koh ▇▇▇▇▇▇▇▇
----------------------------
Koh ▇▇▇▇▇▇▇▇
Title: General Manager
PARIBAS, as a Lender and a Managing Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as a
Lender and a Managing Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ FARGO BANK, N.A., as a Lender and a
Managing Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇ ▇. Solding
---------------------------------
▇▇▇▇▇▇ ▇. Solding
Title: Senior Vice President
ABN-AMRO, as a Lender and a Managing Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CIBC INC., as a Lender and a Co- Agent
By /s/ ▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇ ▇▇▇▇▇
Title: Executive Director
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender and a Co-
Agent
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY, as a Lender and a
Co-Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Joint General Manager
UNION BANK OF CALIFORNIA, N.A., as a
Lender and a Co-Agent
By /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO TRUST & BANKING CO., LTD., as
a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
CREDIT LYONNAIS LOS ANGELES BRANCH, as a
Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Manager
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE, as a Lender
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice Presdent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as a Lender
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------
▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANQUE NATIONALE DE PARIS, as a Lender
By /s/ ▇▇▇▇▇ ▇. Low
---------------------------------
▇▇▇▇▇ ▇. Low
Title: Vice President & Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
COMERICA WEST
INCORPORATED, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Account Officer
CORESTATES/FIRST UNION, as a Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized
Signatory
HIBERNIA NATIONAL BANK, as a Lender
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Banking Officer
KBC BANK N.V., as a Lender
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BANK PLC, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
LOS ANGELES AGENCY, as a Lender
By /s/ Yasushi Satomi
------------------------------
Yasushi Satomi
Title: Senior Vice President
THE SANWA BANK, LIMITED, as a Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK,
LIMITED, as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇
Title: Joint General Manager
THE TOYO TRUST & BANKING CO., LTD., LOS
ANGELES AGENCY, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager