REVOLVING CREDIT AGREEMENT Dated as of September 27, 2007 by and among WASTE CONNECTIONS, INC. AND ITS SUBSIDIARIES (the “Borrowers”) THE LENDING INSTITUTIONS PARTY HERETO (the “Lenders”) and BANK OF AMERICA, N.A., as Administrative Agent with...
Exhibit
4.1
EXECUTION
COPY
Published
CUSIP Number: ▇▇▇▇▇▇▇▇▇
Dated
as
of September 27, 2007
by
and
among
WASTE
CONNECTIONS, INC.
AND
ITS SUBSIDIARIES
(the
“Borrowers”)
THE
LENDING INSTITUTIONS PARTY HERETO
(the
“Lenders”)
and
BANK
OF AMERICA, N.A.,
as
Administrative Agent
with
JPMORGAN
CHASE BANK, N.A.
and
DEUTSCHE
BANK SECURITIES, INC.,
as
Co-Syndication Agents
and
BANC
OF AMERICA SECURITIES LLC
and
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
as
Joint
Lead Arrangers and Joint Book Managers
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
and
UNION BANK OF CALIFORNIA
as
Documentation Agents
TABLE
OF CONTENTS
Page
|
DEFINITIONS
AND RULES OF INTERPRETATION
|
1
|
|||
|
§1.1.
|
Definitions
|
1
|
||
|
§1.2.
|
Rules
of Interpretation
|
17
|
||
|
§2.
|
THE
REVOLVING CREDIT FACILITY
|
18
|
||
|
§2.1.
|
Commitment
to Lend
|
18
|
||
|
§2.2.
|
Reduction
of Total Revolving Credit Commitment
|
18
|
||
|
§2.3.
|
Evidence
of Indebtedness; Revolving Credit Notes
|
19
|
||
|
§2.4.
|
Interest
on Revolving Credit Loans
|
20
|
||
|
§2.5.
|
Requests
for Revolving Credit Loans
|
20
|
||
|
§2.6.
|
Funds
for Revolving Credit Loans
|
21
|
||
|
§2.7.
|
Maturity
of the Revolving Credit Loans
|
22
|
||
|
§2.8.
|
Mandatory
Repayments of the Revolving Credit Loans
|
22
|
||
|
§2.9.
|
Optional
Prepayments or Repayments of Revolving Credit Loans
|
22
|
||
|
§2.10.
|
Swing
Line Loans; Settlements
|
22
|
||
|
§2.11.
|
Increase
In Total Revolving Credit Commitment
|
25
|
||
|
§3.
|
LETTERS
OF CREDIT
|
26
|
||
|
§3.1.
|
Letter
of Credit Commitments
|
26
|
||
|
§3.1.1.
|
Commitment
to Issue Letters of Credit
|
26
|
||
|
§3.1.2.
|
Letter
of Credit Applications
|
27
|
||
|
§3.1.3.
|
Terms
of Letters of Credit
|
28
|
||
|
§3.1.4.
|
Reimbursement
Obligations of Lenders
|
28
|
||
|
§3.1.5.
|
Participations
of Lenders
|
29
|
||
|
|
§3.1.6.
|
Existing
Letters of Credit
|
29
|
|
|
§3.1.7.
|
Auto
Extension Letters of Credit
|
29
|
||
|
§3.2.
|
Reimbursement
Obligation of the Borrowers
|
30
|
||
|
§3.3.
|
Letter
of Credit Payments
|
30
|
||
|
§3.4.
|
Obligations
Absolute
|
31
|
||
|
|
§3.5.
|
Role
of Issuing Lender
|
32
|
|
|
§3.6.
|
Letter
of Credit Amounts
|
32
|
||
|
§3.7.
|
Applicability
of ISP
|
33
|
||
i
TABLE
OF CONTENTS
(continued)
Page
|
§4.
|
FEES,
PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL LIABILITY
|
33
|
|
|
§4.1.
|
Fees
|
33
|
|
|
§4.2.
|
Payments
|
34
|
|
|
§4.3.
|
Computations
|
35
|
|
|
§4.4.
|
Capital
Adequacy
|
36
|
|
|
§4.5.
|
Certificate
|
36
|
|
|
§4.6.
|
Interest
After Default
|
36
|
|
|
§4.7.
|
Interest
Limitation
|
37
|
|
|
§4.8.
|
Election
of Eurodollar Rate; Notice of Election; Interest Periods; Minimum
Amounts
|
37
|
|
|
§4.9.
|
Eurodollar
Indemnity
|
38
|
|
|
§4.10.
|
Illegality;
Inability to Determine Eurodollar Rate
|
38
|
|
|
|
|||
|
§4.11.
|
Additional
Costs, Etc
|
39
|
|
|
§4.12.
|
Replacement
of Lenders
|
40
|
|
|
|
|||
|
§4.13.
|
Concerning
Joint and Several Liability of the Borrowers
|
40
|
|
|
§5.
|
REPRESENTATIONS
AND WARRANTIES
|
44
|
|
|
§5.1.
|
Corporate
Authority
|
44
|
|
|
§5.2.
|
Governmental
Approvals
|
44
|
|
|
§5.3.
|
Title
to Properties; Leases
|
45
|
|
|
§5.4.
|
Financial
Statements; Solvency
|
45
|
|
|
§5.5.
|
No
Material Changes, Etc
|
45
|
|
|
§5.6.
|
Permits,
Franchises, Patents, Copyrights, Etc
|
45
|
|
|
§5.7.
|
Litigation
|
45
|
|
|
§5.8.
|
No
Materially Adverse Contracts, Etc
|
45
|
|
|
§5.9.
|
Compliance
With Other Instruments, Laws, Etc
|
46
|
|
|
§5.10.
|
Tax
Status
|
46
|
|
|
§5.11.
|
No
Event of Default
|
46
|
|
|
§5.12.
|
Holding
Company and Investment Company Acts
|
46
|
|
|
§5.13.
|
Absence
of Financing Statements, Etc
|
46
|
|
|
§5.14.
|
Employee
Benefit Plans
|
46
|
|
ii
TABLE
OF CONTENTS
(continued)
Page
|
§5.15.
|
Use
of Proceeds
|
47
|
||
|
§5.15.1.
|
General
|
47
|
||
|
§5.15.2.
|
Regulations
U and X
|
48
|
||
|
§5.15.3.
|
Ineligible
Securities
|
48
|
||
|
§5.16.
|
Environmental
Compliance
|
48
|
||
|
§5.17.
|
Transactions
with Affiliates
|
48
|
||
|
§5.18.
|
Subsidiaries
|
49
|
||
|
§5.19.
|
True
Copies of Charter and Other Documents
|
49
|
||
|
§5.20.
|
Disclosure
|
49
|
||
|
§5.21.
|
Capitalization
|
49
|
||
|
§6.
|
AFFIRMATIVE
COVENANTS OF THE BORROWERS
|
50
|
||
|
§6.1.
|
Punctual
Payment
|
50
|
||
|
§6.2.
|
Maintenance
of Offices
|
50
|
||
|
§6.3.
|
Records
and Accounts
|
50
|
||
|
§6.4.
|
Financial
Statements, Certificates and Information. The Borrowers will
deliver to the Lenders:
|
50
|
||
|
§6.5.
|
Legal
Existence and Conduct of Business
|
52
|
||
|
§6.6.
|
Maintenance
of Properties
|
52
|
||
|
§6.7.
|
Insurance
|
52
|
||
|
§6.8.
|
Taxes
|
52
|
||
|
§6.9.
|
Inspection
of Properties, Books, and Contracts
|
53
|
||
|
§6.10.
|
Compliance
with Laws, Contracts, Licenses and Permits; Maintenance of Material
Licenses and Permits
|
53
|
||
|
§6.11.
|
Environmental
Indemnification
|
53
|
||
|
§6.12.
|
Further
Assurances
|
53
|
||
|
|
§6.13.
|
Notice
of Potential Claims or Litigation
|
54
|
|
|
§6.14.
|
Notice
of Certain Events Concerning Insurance and Environmental
Claims
|
54
|
||
|
§6.15.
|
Notice
of Default
|
54
|
||
|
§6.16.
|
New
Subsidiaries
|
55
|
||
|
§6.17.
|
Employee
Benefit Plans
|
55
|
||
iii
TABLE
OF CONTENTS
(continued)
Page
|
§6.18.
|
Additional
Notices
|
55
|
||
|
§7.
|
CERTAIN
NEGATIVE COVENANTS OF THE BORROWERS
|
55
|
||
|
§7.1.
|
Restrictions
on Indebtedness
|
56
|
||
|
§7.2.
|
Restrictions
on Liens
|
57
|
||
|
§7.3.
|
Restrictions
on Investments
|
58
|
||
|
§7.4.
|
Merger,
Consolidation and Disposition of Assets
|
59
|
||
|
§7.4.1
|
Mergers
and Acquisitions
|
59
|
||
|
§7.4.2
|
Disposition
of Assets
|
59
|
||
|
§7.5.
|
Sale
and Leaseback
|
60
|
||
|
§7.6.
|
Restricted
Payments and Redemptions
|
60
|
||
|
§7.7.
|
Employee
Benefit Plans
|
60
|
||
|
§7.8.
|
Negative
Pledges
|
61
|
||
|
§7.9.
|
Business
Activities
|
61
|
||
|
§7.10.
|
Transactions
with Affiliates
|
61
|
||
|
§7.11.
|
Prepayments
of Indebtedness
|
62
|
||
|
§7.12.
|
Accounting
Changes
|
62
|
||
|
§8.
|
FINANCIAL
COVENANTS
|
62
|
||
|
§8.1.
|
Leverage
Ratio
|
62
|
||
|
§8.2.
|
Interest
Coverage Ratio
|
62
|
||
|
§9.
|
CLOSING
CONDITIONS
|
62
|
||
|
§9.1.
|
Corporate
Action
|
62
|
||
|
§9.2.
|
Loan
Documents, Etc
|
62
|
||
|
§9.3.
|
Certificate
of Secretary; Good Standing Certificates
|
62
|
||
|
§9.4.
|
Certificates
of Insurance
|
63
|
||
|
§9.5.
|
Legal
Opinions
|
63
|
||
|
§9.6.
|
Environmental
Permit Certificate
|
63
|
||
|
§9.7.
|
Payment
of Fees
|
63
|
||
|
§9.8.
|
Closing
Certificate
|
63
|
||
|
§9.9.
|
Closing
Date Compliance Certificate
|
63
|
||
|
§9.10.
|
Projections
|
63
|
||
iv
TABLE
OF CONTENTS
(continued)
Page
|
§9.11.
|
Termination
of Existing Credit Agreement
|
64
|
||
|
§9.12.
|
Closing
Documentation, Etc
|
64
|
||
|
§10.
|
CONDITIONS
OF ALL LOANS
|
64
|
||
|
§10.1.
|
Representations
True; No Event of Default
|
64
|
||
|
|
§10.2.
|
Performance;
No Event of Default
|
64
|
|
|
§10.3.
|
No
Legal Impediment
|
64
|
||
|
§10.4.
|
Governmental
Regulation
|
64
|
||
|
§10.5.
|
Proceedings
and Documents
|
65
|
||
|
§11.
|
EVENTS
OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT
|
65
|
||
|
§11.1.
|
Events
of Default and Acceleration
|
65
|
||
|
§11.2.
|
Termination
of Commitments
|
67
|
||
|
§11.3.
|
Remedies
|
68
|
||
|
§11.4.
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
|
▇▇
|
||
|
§▇▇.
|
▇▇▇▇▇▇
|
▇▇
|
||
|
§▇▇.
|
THE
ADMINISTRATIVE AGENT
|
69
|
||
|
§13.1.
|
Appointment
and Authorization
|
69
|
||
|
§13.2.
|
Rights
as a Lender
|
69
|
||
|
§13.3.
|
Exculpatory
Provisions
|
70
|
||
|
§13.4.
|
Reliance
by Administrative Agent
|
71
|
||
|
§13.5.
|
Delegation
of Duties
|
71
|
||
|
§13.6.
|
Resignation
of Administrative Agent
|
71
|
||
|
§13.7.
|
Non-Reliance
on Administrative Agent and Other Lenders
|
72
|
||
|
§13.8.
|
No
Other Duties, Etc
|
72
|
||
|
§13.9.
|
Closing
Documentation, Etc
|
72
|
||
|
§13.10.
|
Payments
|
73
|
||
|
§13.10.1.
|
Payments
to Administrative Agent
|
73
|
||
|
§13.10.2.
|
Distribution
by Administrative Agent
|
73
|
||
|
§13.10.3.
|
Delinquent
Lenders
|
73
|
||
|
§13.11.
|
Holders
of Notes
|
74
|
||
v
TABLE
OF CONTENTS
(continued)
Page
|
§13.12.
|
Indemnity
|
74
|
|
|
§13.13.
|
Notification
of Defaults and Events of Default
|
74
|
|
|
§13.14.
|
Administrative
Agent May File Proofs of Claim
|
74
|
|
|
|
§13.15.
|
Duties
of Syndication Agents and Documentation Agents
|
75
|
|
§14.
|
EXPENSES
AND INDEMNIFICATION
|
75
|
|
|
§14.1.
|
Expenses
|
75
|
|
|
§14.2.
|
Indemnification
|
76
|
|
|
§14.3.
|
Survival
|
76
|
|
|
§15.
|
SURVIVAL
OF COVENANTS, ETC
|
77
|
|
|
§16.
|
ASSIGNMENTS
AND PARTICIPATION
|
77
|
|
|
§17.
|
PARTIES
IN ▇▇▇▇▇▇▇▇
|
▇▇
|
|
|
§▇▇.
|
NOTICES,
ETC
|
80
|
|
|
§18.1.
|
Notices
Generally
|
80
|
|
|
§18.2.
|
Electronic
Communications
|
81
|
|
|
§18.3.
|
The
Platform
|
81
|
|
|
§18.4.
|
Change
of Address, Etc
|
82
|
|
|
|
§18.5.
|
Reliance
by Administrative Agent, Issuing Lender and Lenders
|
82
|
|
§19
|
TREATMENT
OF CERTAIN CONFIDENTIAL INFORMATION
|
82
|
|
|
§19.1.
|
Prior
Notification
|
83
|
|
|
§19.2.
|
Other
|
83
|
|
|
§20
|
MISCELLANEOUS
|
83
|
|
|
§21
|
ENTIRE
AGREEMENT, ETC
|
84
|
|
|
§22
|
WAIVER
OF JURY TRIAL
|
84
|
|
|
§23
|
GOVERNING
LAW
|
85
|
|
|
§24
|
CONSENTS,
AMENDMENTS, WAIVERS, ETC
|
85
|
|
|
§25
|
BORROWERS’
REPRESENTATIVE
|
86
|
|
|
§26.
|
SEVERABILITY
|
87
|
|
|
§27.
|
NO
ADVISORY OR FIDUCIARY RESPONSIBILITY
|
87
|
|
|
§28
|
USA
PATRIOT ACT
|
87
|
|
vi
Schedules
& Exhibits
|
Exhibit
A
|
Form
of Loan and Letter of Credit Request
|
|
Exhibit
B
|
Form
of Compliance Certificate
|
|
Exhibit
C
|
Form
of Environmental Compliance Certificate
|
|
Exhibit
D
|
Form
of Assignment and Acceptance
|
|
Exhibit
E
|
Form
of Joinder Agreement
|
|
Exhibit
F
|
Form
of Instrument of Accession
|
|
Schedule
1
|
Lenders;
Commitments; Commitment Percentages
|
|
Schedule
2
|
Subsidiaries;
Excluded Subsidiaries
|
|
Schedule
3.1
|
Existing
Letters of Credit
|
|
Schedule
5.7
|
Litigation
|
|
Schedule
5.16
|
Environmental
Matters
|
|
Schedule
5.17
|
Transactions
with Affiliates
|
|
Schedule
6.7
|
Self
Insurance Programs
|
|
Schedule
7.1
|
Existing
Indebtedness
|
|
Schedule
7.2(i)
|
Existing
Liens
|
vii
This
REVOLVING CREDIT AGREEMENT is made as of September 27, 2007
(the “Credit Agreement”), by and among (a) WASTE
CONNECTIONS, INC., a Delaware corporation (the “Parent”), the
Subsidiaries of the Parent identified on Schedule2 hereto
(collectively with the Parent, the “Borrowers”), (b) BANK OF
AMERICA, N.A., a national banking association having a place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting in its
individual capacity, “Bank of America”), and the other banks and lending
institutions which are identified on Schedule 1 attached hereto
(collectively, the “Lenders”), (c) BANK OF AMERICA,
N.A., as administrative agent for the Lenders (the “Administrative
Agent”), and (d) DEUTSCHE BANK SECURITIES, INC. and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as co-syndication agents for the Lenders
(the “Syndication Agents”).
§1. DEFINITIONS
AND RULES OF INTERPRETATION.
§1.1. Definitions.
The
following terms shall have the meanings set forth in this §1 or elsewhere in the
provisions of this Credit Agreement referred to below:
Accountants. An
independent accounting firm of national standing reasonably acceptable to the
Required Lenders and the Administrative Agent.
Administrative
Agent. See Preamble.
Administrative
Agent’s Office. The Administrative Agent’s office located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as the
Administrative Agent may designate from time to time
Affected
Lender. See §4.12.
Affiliate. Any
Person that would be considered to be an affiliate of any other Person under
Rule 144(a) of the Rules and Regulations of the Securities and Exchange
Commission, as in effect on the date hereof, if such other Person were issuing
securities.
Applicable
Base Rate Margin. The applicable margin with respect to Base Rate
Loans as set forth in the Pricing Table.
Applicable
Commitment Rate. The applicable rate with respect to the
Commitment Fee as set forth in the Pricing Table.
Applicable
Eurodollar Margin. The applicable margin with respect to
Eurodollar Loans as set forth in the Pricing Table.
Applicable
Laws. See §6.10.
Applicable
L/C Margin. The applicable margin with respect to the Letter of
Credit Fee as set forth in the Pricing Table.
Approved
Fund. Any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that
administers or manages a Lender.
Assignment
and Acceptance. See §16(a).
Balance
Sheet Date. December 31, 2006.
Bank
of America. See Preamble.
Bank
Product Obligations. Every obligation of each Borrower and its
Subsidiaries under and in respect of any one or more of the following types
of
services or facilities extended to such Borrower or such Subsidiary by the
Administrative Agent, any Lender or any Affiliate of the Administrative Agent
or
any Lender: (i) credit and purchase cards, (ii) cash management or related
services, including, without limitation, controlled disbursement services,
and
(iii) agreements for treasury management services, including, without
limitation, intraday credit, Automated Clearing House (ACH) services, foreign
exchange services, daylight overdrafts and zero balance
arrangements.
Base
Rate. For any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus one half of one percent (0.5%) and
(b)
the rate of interest in effect for such day as publicly announced from time
to
time by Bank of America as its “prime rate.” The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may
be
priced at, above, or below such announced rate. Any change in such
rate announced by Bank of America shall take effect at the opening of business
on the date specified in the public announcement of such change.
Base
Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
Borrowers. The
Parent and the Subsidiaries other than the Excluded Subsidiaries.
Borrower
Materials. See §6.4.
Borrower
Representative. See §2.5(b).
Business
Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York are open for the transaction of banking
business.
Capital
Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and
all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing but
excluding any debt security that is convertible into or exchangeable in whole
or
in part for Capital Stock prior to such conversion.
Capitalized
Leases. Leases under which any Borrower is the lessee or obligor,
the discounted future rental payment obligations under which are required to
be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.
2
CERCLA. See
definition of Release.
Certified. With
respect to the financial statements of any Person, such statements as audited
by
a firm of independent auditors, whose report expresses the opinion, without
qualification as to going concern and the scope of the audit, that such
financial statements present fairly the financial position of such
Person.
CFO. See
§6.4(b).
Closing
Date. The date on which the conditions precedent set forth in §9
are satisfied.
Code. The
Internal Revenue Code of 1986, as amended and in effect from time to
time.
Commitment. With
respect to each Revolving Credit Lender, the amount determined by multiplying
such Lender’s Commitment Percentage by the Total Revolving Credit Commitment, as
the same may be increased or reduced from time to time pursuant to the
provisions hereof, or if such Commitment is terminated pursuant to the
provisions hereof, zero.
Commitment
Fee. See §4.1(a).
Commitment
Percentage. With respect to each Revolving Credit Lender, the
percentage set forth on Schedule 1 hereto as such Lender’s
percentage of the Total Revolving Credit Commitment (subject to adjustment
in
accordance with §2.11).
Compliance
Certificate. See §6.4(c).
Consolidated
or consolidated. With reference to any term defined herein, shall
mean that term as applied to the accounts of the Parent and its Subsidiaries
consolidated in accordance with GAAP.
Consolidated
Earnings Before Interest and Taxes or EBIT. For any period, the
Consolidated Net Income (or Deficit) of the Borrowers determined in accordance
with GAAP, plus (a) interest expense, (b) income taxes, (c) non-cash
stock compensation charges, to the extent that such charges were deducted in
determining Consolidated Net Income (or Deficit), all as determined in
accordance with GAAP, including, without limitation, charges for stock options
and restricted stock grants, (d) minority interest expense, (e) non-cash
extraordinary non-recurring writedowns or writeoffs of assets, including
non-cash losses on the sale of assets outside the ordinary course of business,
(f) any losses associated with the extinguishment of Indebtedness of the
Borrowers, (g) special charges relating to the termination of a Swap Contract
and (h) any accrued settlement payments in respect of any Swap Contract owing
by
the Borrowers minus (i) non-cash extraordinary gains on the sale of
assets to the extent included in Consolidated Net Income (or Deficit) and (j)
any accrued settlement payments in respect of any Swap Contact payable to the
Borrowers.
Consolidated
Earnings Before Interest, Taxes,
Depreciation, and Amortization or EBITDA. For any period (without
duplication), (a) Consolidated EBIT plus the depreciation expense
and amortization expense, to the extent that each was deducted in determining
Consolidated Net Income (or Deficit), determined in accordance with GAAP,
plus (b) the
3
depreciation
expense and amortization expense (without duplication) of any company whose
Consolidated EBIT was included under clause (c) hereof, plus (c)
Consolidated EBIT for the prior twelve (12) months of companies acquired by
the
Borrowers during the respective reporting period (without duplication)
provided that (i) the financial statements of such acquired companies
have been audited for the period sought to be included by an independent
accounting firm satisfactory to the Administrative Agent, or (ii) the
Administrative Agent consents to such inclusion after being furnished with
other
acceptable financial statements, and provided further that such acquired
Consolidated EBIT may be further adjusted to add-back non-recurring private
company expenses which are discontinued upon acquisition (such as owner’s
compensation), as approved by the Administrative
Agent. Simultaneously with the delivery of the financial statements
referred to in (i) and (ii) above, the CFO of the Parent shall deliver to the
Administrative Agent a Compliance Certificate and appropriate documentation
certifying the historical operating results, adjustments and balance sheet
of
the acquired company.
Consolidated
Net Income (or Deficit). The consolidated net income (or deficit)
of the Borrowers after deduction of all expenses, taxes, and other proper
charges, determined in accordance with GAAP.
Consolidated
Total Funded Debt. With respect to the Borrowers, the sum,
without duplication, of (a) the aggregate amount of Indebtedness of the
Borrowers on a consolidated basis, relating to (i) the borrowing of money or
the
obtaining of credit, including the issuance of notes, bonds, debentures or
similar debt instruments, (ii) in respect of any Capitalized Leases and
Synthetic Leases, (iii) the non-contingent deferred purchase price of assets
and
companies (typically known as holdbacks) to the extent recognized as a liability
of any Borrower in accordance with GAAP, but excluding (A) short-term trade
payables incurred in the ordinary course of business and (B) the ▇▇▇▇▇▇ County
Put, and (iv) any unpaid reimbursement obligations with respect to letters
of
credit outstanding, but excluding any contingent obligations with respect to
letters of credit outstanding; plus (b) Indebtedness of the type referred
to in clause (a) of another Person who is not a Borrower guaranteed by the
Borrowers.
Consolidated
Total Interest Expense. For any period, the aggregate amount of
interest required to be paid or accrued by the Borrowers during such period
on
all Indebtedness of the Borrowers outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item
of
expense or capitalized, including payments consisting of interest in respect
of
any Capitalized Lease or any Synthetic Lease and including commitment fees,
agency fees, facility fees, balance deficiency fees and similar fees or expenses
in connection with the borrowing of money, but (a) excluding (i) any
amortization and other non-cash charges or expenses incurred during such period
to the extent included in determining consolidated interest expense, including
without limitation, non-cash amortization of deferred debt origination and
issuance costs and amortization of accumulated other comprehensive income,
(ii)
all amounts associated with the unwinding or termination of any Swap Contract,
(iii) any accrued settlement payments in respect of any Swap Contract payable
to
the Borrowers and (iv) to the extent included as an item of interest expense,
any premium paid to prepay, repurchase or redeem any Indebtedness incurred
by
the Borrowers pursuant to §7.1 hereof, and (b) including any accrued
settlement payments in respect of any Swap Contract owing by the
Borrowers.
4
Conversion
Request. A notice given by the Borrowers to the Administrative
Agent of the Borrowers’ election to convert or continue a Loan in accordance
with §4.8.
Credit
Agreement. See Preamble.
Debt
Rating. As of any date of determination, the rating
as determined by either S&P or ▇▇▇▇▇’▇ of the
Borrowers’ non-credit-enhanced, senior unsecured long-term debt.
Debtor
Relief Laws. The Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit
of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of
creditors generally.
Default. See
§11.
Delinquent
Lender. See §13.10.3.
Disposal
(or Disposed). See definition of Release.
Distribution. The
declaration or payment of any dividend or distribution on or in respect of
any
shares of any class of Capital Stock (other than dividends or other
distributions payable solely in shares of Capital Stock); the purchase,
redemption, or other retirement of any shares of any class of Capital Stock,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or
any
other distribution on or in respect of any shares of any class of Capital
Stock.
Dollars
or $. Dollars in lawful currency of the United States of
America.
Drawdown
Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with §4.8, or
the date that any draft or other form of demand for payment is honored with
respect to a Letter of Credit.
Eligible
Assignee. Any of (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund and (d) any other Person (other than a natural person) approved
by (i) the Administrative Agent and (ii) unless a Default or an Event of Default
has occurred and is continuing, the Parent (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include the Borrowers, or their Subsidiaries or
any of their Affiliates.
Employee
Benefit Plan. Any employee benefit plan within the meaning of
§3(3) of ERISA maintained or contributed to by the Borrowers or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer
Plan.
Environmental
Laws. See §5.16(a).
ERISA. The
Employee Retirement Income Security Act of 1974, as amended and in effect from
time to time.
5
ERISA
Affiliate. Any Person which is treated as a single employer with
the Borrowers under §414 of the Code.
ERISA
Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of §4043 of ERISA and the regulations
promulgated thereunder.
Eurodollar
Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or
such
other eurodollar interbank market as may be selected by the Administrative
Agent
in its sole discretion acting in good faith.
Eurodollar
Loans. Revolving Credit Loans bearing interest calculated by
reference to the Eurodollar Rate.
Eurodollar
Rate. For any Interest Period with respect to a Eurodollar Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from
time to time) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any
reason, then the “Eurodollar Rate” for such Interest Period shall be the rate
per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
Event
of Default. See §11.
Evergreen. Evergreen
National Indemnity Company, an Ohio property and casualty insurance company
d/b/a Evergreen/UNI.
Evergreen
Option. The option of the Parent to acquire up to 299.5 shares of
Class A Common Stock of Evergreen, up to 2,088.5 shares of Class B Common Stock
of Evergreen and up to one-half share of Class C Common Stock of Evergreen
not
currently owned by the Parent on or before March 31, 2008.
Evergreen
Shares. Collectively, the 299.5 shares of Class A Common Stock of
Evergreen, 2,088.5 shares of Class B Common Stock of Evergreen and one-half
share of the Class C Common Stock of Evergreen currently owned by the Parent
and
pledged to Evergreen.
Excluded
Subsidiaries. Each of the Subsidiaries listed on Schedule
2 hereto under the heading “Excluded Subsidiaries”.
Existing
Credit Agreement. That certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of January 12, 2006, as amended, among
the Borrowers and
6
Bank
of America, N.A. as administrative agent for
itself and the other lenders from time to time party thereto.
Federal
Funds Rate. For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the
Federal Reserve System arranged by Federal funds brokers on such day as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on
the
next preceding Business Day as so published on the next succeeding Business
Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day will be the average rate (rounded upward
if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transaction as determined by the Administrative
Agent.
Fees. Collectively,
the Commitment Fee, the Letter of Credit Fees, the fees payable pursuant to
the
Fee Letter, and any other fees payable hereunder or under the other Loan
Documents.
Fee
Letter. That certain letter agreement, dated as of September 4,
2007, by and among the Parent, Bank of America and Banc of America Securities
LLC.
FERC. See
§5.12.
Financial
Affiliate. A subsidiary of the bank holding company controlling
any Lender, which subsidiary is engaging in any of the activities permitted
by
§4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. §1843).
Fitch.
Fitch, Inc. and any successor thereto.
Fund. Any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
generally
accepted accounting principles or GAAP. Generally accepted accounting
principles in the United States of America. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time;
provided that if the Borrowers notify the Administrative Agent that the
Borrowers request an amendment to any provision hereof to eliminate the effect
of any change occurring after the Closing Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrowers 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
provision has been amended in accordance herewith.
7
Governmental
Authority. The government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and
any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory
or
administrative powers or functions of or pertaining to government (including
any
supra-national bodies such as the European Union or the European Central
Bank).
Guaranteed
Pension Plan. Any employee pension benefit plan within the
meaning of §3(2) of ERISA maintained or contributed to by the Borrowers or any
ERISA Affiliate, the benefits of which are guaranteed on termination in full
or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Hazardous
Substances. Any hazardous waste, as defined by 42 U.S.C.
§6903(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any
pollutant or contaminant as defined by 42 U.S.C. §9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws.
Increase
Effective Date. See §2.11(d).
Incremental
Commitment Fee. See §4.1(b).
Indebtedness. As
to any Person and whether recourse is secured by or is otherwise available
against all or only a portion of the assets of such Person and whether or not
contingent, but without duplication:
(a) every
obligation of such Person for money borrowed,
(b) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses,
(c) every
reimbursement obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such
Person,
(d) the
net present value (using the Base Rate as the discount rate) of every obligation
of such Person issued or assumed as the deferred purchase price of property
or
services (including securities repurchase agreements but excluding (A) trade
accounts payable or accrued liabilities arising in the ordinary course of
business which are not overdue or which are being contested in good faith and
(B) contingent purchase price obligations solely to the extent that the
contingency upon which such obligation is conditioned has not yet
occurred),
(e) every
obligation of such Person under any Capitalized Lease,
(f) every
obligation of such Person under any Synthetic Lease,
(g) all
sales by such Person of (A) accounts or general intangibles for money due or
to
become due, (B) chattel paper, instruments or documents creating or
evidencing
8
a
right to payment of money or (C) other receivables
(collectively, “Receivables”), whether pursuant to a purchase facility or
otherwise, other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted
Receivables for collection and not as a financing arrangement, and together
with
any obligation of such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
provided, however, that sales referred to in clauses (B) and (C) shall
not constitute Indebtedness to the extent that such sales are non-recourse
to
such Person;
(h) every
obligation of such Person (an “equity related purchase obligation”) to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of any class
issued by such Person, or any rights measured by the value of such Capital
Stock,
(i) every
obligation of such Person under any forward contract, futures contract, swap,
option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which
is
dependent upon interest rates, currency exchange rates, commodities or other
indices,
(j) every
obligation in respect of Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent that such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent that the terms of
such
Indebtedness provide that such Person is not liable therefor and such terms
are
enforceable under applicable law,
(k) every
obligation, contingent or otherwise, of such Person guaranteeing, or having
the
economic effect of guaranteeing or otherwise acting as surety for, any
obligation of a type described in any of clauses (a) through (j) (the “primary
obligation”) of another Person (the “primary obligor”), in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person (A) to purchase or pay (or advance or supply funds for the purchase
of) any security for the payment of such primary obligation, (B) to purchase
property, securities or services for the purpose of assuring the payment of
such
primary obligation, or (C) to maintain working capital, equity capital or
other financial statement condition or liquidity of the primary obligor so
as to
enable the primary obligor to pay such primary obligation.
The
“amount” or “principal amount” of any Indebtedness at any time of determination
represented by (v) any Indebtedness, issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability
in
respect thereof determined in accordance with generally accepted accounting
principles, (w) any Capitalized Lease shall be the principal component of the
aggregate of the rentals obligation under such Capitalized Lease payable over
the term thereof that is not subject to termination by the lessee, (x) any
sale
of Receivables shall be the amount of unrecovered capital or principal
investment of the purchaser (other than the Borrowers) thereof, excluding
amounts representative of yield or interest earned on such investment,
(y) any Synthetic Lease shall be the stipulated loss value, termination
value or other equivalent amount and (z) any equity related purchase obligation
shall be the maximum fixed redemption or purchase price thereof inclusive of
any
accrued and unpaid dividends to be comprised in such redemption or purchase
price.
9
Ineligible
Securities. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. §24, Seventh), as amended.
Instrument
of Accession. See §2.11(c).
Interest
Payment Date. (a) As to any Base Rate Loan, the last Business Day
of each calendar quarter with respect to interest accrued during such calendar
quarter, including, without limitation, the calendar quarter which includes
the
Drawdown Date of such Base Rate Loan; (b) as to any Eurodollar Loan in respect
of which the Interest Period is (i) 3 months or less, the last day of such
Interest Period and (ii) more than 3 months, the date that is 3 months from
the
first day of such Interest Period and, in addition, the last day of such
Interest Period; and (c) with respect to all Revolving Credit Loans and
Swing Line Loans, the Revolving Credit Maturity Date.
Interest
Period. With respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Loan and ending
on
the last day of one of the periods set forth below, as selected by the Borrowers
in a Loan Request or as otherwise required by the terms of this Credit Agreement
(i) for any Base Rate Loan, the last day of the calendar quarter; and (ii)
for
any Eurodollar Loan, one (1), two (2), three (3) or six (6) months; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan and
ending on the last day of one of the periods set forth above, as selected by
the
Borrowers in a Conversion Request; provided that all of the foregoing
provisions relating to Interest Periods are subject to the
following:
(i) if
any Interest Period with respect to a Eurodollar Loan would otherwise end on
a
day that is not a Eurodollar Business Day, that Interest Period shall be
extended to the next succeeding Eurodollar Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Eurodollar Business Day;
(ii) if
any Interest Period with respect to a Base Rate Loan would end on a day that
is
not a Business Day, that Interest Period shall end on the next succeeding
Business Day;
(iii) if
the Borrowers shall fail to give notice as provided in §2.5, the Borrowers shall
be deemed to have requested a conversion of the affected Eurodollar Loan to
a
Base Rate Loan and the continuance of all Base Rate Loans as Base Rate Loans
on
the last day of the then current Interest Period with respect
thereto;
(iv) any
Interest Period relating to any Eurodollar Loan that begins on the last
Eurodollar Business Day of a calendar month (or on a day for which there is
no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Eurodollar Business Day of a calendar month;
and
10
(v) any
Interest Period that would otherwise extend beyond the Revolving Credit Loan
Maturity Date shall end on the Revolving Credit Loan Maturity
Date.
ISP. With
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
Interim
Balance Sheet Date. June 30, 2007.
IRBs. Industrial
revenue bonds or solid waste disposal bonds or similar tax-exempt bonds issued
by or at the request of the Borrowers.
IRB
Letters of Credit. See §3.1(a).
Issuer
Documents. With respect to any Letter of Credit, the Letter of
Credit Application, and any other document, agreement and instrument entered
into by the Issuing Lender and the Borrowers or in favor of the Issuing Lender
and relating to any such Letter of Credit.
Issuing
Lender. Bank of America or any other Lender acceptable to the
Administrative Agent and the Borrowers.
Joint
Lead Arrangers. Banc of America Securities LLC and ▇.▇. ▇▇▇▇▇▇
Securities Inc.
KYC
Requirement Information. With respect to any Subsidiary of the Parent, such
Subsidiary’s tax identification number, physical address, country of principal
place of business, headquarters and formation, type of legal entity and phone
number.
L/C
Supported IRBs. IRBs backed by IRB Letters of
Credit.
Lenders. The
lending institutions listed on Schedule 1 hereto and any other
Person who becomes an assignee of any rights and obligations of a Lender or
becomes a Lender pursuant to §16.
Letter
of Credit Applications. Letter of Credit Applications in such
form as may be agreed upon by the Borrowers and the Administrative Agent from
time to time which are entered into pursuant to §3 hereof, as such Letter of
Credit Applications are amended, varied or supplemented from time to
time.
Letter
of Credit Fee. See §4.1(c).
Letter
of Credit Participation. See §3.1.4.
Letters
of Credit. See §3.1.1.
Letter
of Credit Expiration Date. The day that
is thirty days prior to the
Revolving Credit Maturity Date (or if such day is not a Business Day, the next
preceding Business Day).
11
Letter
of Credit Obligations. As of any date, the sum of the Maximum
Drawing Amount as of such date and all Unpaid Reimbursement Obligations as
of
such date. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 3.6. For all purposes of this
Credit Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to
be
“outstanding” in the amount so remaining available to be drawn.
Leverage
Ratio. See §8.1.
Loan
and Letter of Credit Request. See §2.5.
Loan
Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications and the Letters of Credit, each as amended and in effect from
time
to time.
Loans. Collectively,
the Revolving Credit Loans and the Swing Line Loans.
Material
Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a
material adverse effect on the business, properties, condition (financial or
otherwise), assets or operations of the Borrowers; or
(b) any
impairment of the validity, binding effect or enforceability of this Credit
Agreement or any of the other Loan Documents or any impairment of the material
rights, remedies or benefits available to the Administrative Agent or any Lender
under any Loan Document.
In
determining whether any individual event could reasonably be expected to result
in a Material Adverse Effect, notwithstanding that such event does not of itself
have such effect, a Material Adverse Effect shall be deemed to have occurred
if
the cumulative effect of such event and all other then existing events could
reasonably be expected to result in a Material Adverse Effect.
Maximum
Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of
Credit.
Moody’s. ▇▇▇▇▇’▇
Investors Service, Inc. and any successor thereto.
Multiemployer
Plan. Any multiemployer plan within the meaning of §3(37) of
ERISA maintained or contributed to by the Borrowers or any ERISA
Affiliate.
Municipal
Contracts. Governmental permits issued to a Borrower by, and
franchises and contracts entered into between a Borrower and, any municipal
or
other governmental entity, as the same may be amended from time to
time.
12
Non-U.S.
Lender. See §4.2(d).
Notes. Collectively,
the Revolving Credit Notes and the Swing Line Notes.
Obligations. All
indebtedness, obligations and liabilities of the Borrowers to any of the Lenders
or the Administrative Agent, individually or collectively, existing on the
date
of this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents, under any Swap Contract between the Borrowers and any Lender
(or
affiliate thereof), or in respect of any Bank Product Obligations or any of
the
Loans made or Reimbursement Obligations incurred or the Letters of Credit or
any
other instrument at any time evidencing any thereof and including interest
and
fees that accrue after the commencement by or against any Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and
fees are allowed claims in such proceeding.
Parent. See
Preamble.
Participant. See
§16(b).
PBGC. The
Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor
entity or entities having similar responsibilities.
Permitted
Debt Documents. Collectively, the Permitted Debt Indenture and the Permitted
Debt Notes.
Permitted
Debt Indenture. The Indenture dated as of March 20, 2006, between
the Parent and U.S. Bank National Association, as trustee, with respect to
the
Permitted Debt Notes, as such Permitted Debt Indenture may be amended,
supplemented or otherwise modified or replaced from time to time.
Permitted
Debt Notes. The 3.75% Convertible Senior Notes due 2026 issued by
the Parent pursuant to the Permitted Debt Indenture in an aggregate principal
amount not to exceed $200,000,000, as such Permitted Debt Notes may be amended,
supplemented or otherwise modified or replaced from time to time.
Permitted
Liens. See §7.2.
Permitted
Receivables Transactions. Any sale or sales of, and/or
securitization of, or transfer of, any Receivables of the Borrowers pursuant
to
which (a) the Receivables SPV realizes aggregate net proceeds of not more than
$100,000,000 at any one time outstanding, including, without limitation, any
revolving purchase(s) of Receivables where the maximum aggregate uncollected
purchase price (exclusive of any deferred purchase price) for such Receivables
at any time outstanding does not exceed $100,000,000, (b) the Receivables shall
be transferred or sold to the Receivables SPV at fair market value or at a
market discount, and shall not exceed $125,000,000 in the aggregate at any
one
time and (c) obligations arising therefrom shall be non-recourse to the Borrower
and its Subsidiaries (other than the Receivables SPV).
13
Person. Any
individual, corporation, limited liability company, partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.
▇▇▇▇▇▇
County LLC. ▇▇▇▇▇▇ County Recycling, Composting and Disposal,
LLC, a Washington limited liability company.
▇▇▇▇▇▇
County Management. ▇▇▇▇▇▇ County Landfill Management, Inc., a
Delaware corporation.
▇▇▇▇▇▇
County Put. The put option of the minority interest holders in
both ▇▇▇▇▇▇ County LLC and ▇▇▇▇▇▇ County Management, the exercise of which
would
obligate the Parent to purchase the additional interests of both ▇▇▇▇▇▇ County
LLC and ▇▇▇▇▇▇ County Management for cash.
Platform. See §6.4.
Pricing
Table.
|
Pricing
Level
|
Leverage
Ratio
|
Applicable
Eurodollar
Margin
(per
annum)
|
Applicable
Base
Rate
Margin
(per
annum)
|
Applicable
L/C
Margin
(per
annum)
|
Applicable
Commitment
Rate
(per
annum)
|
|
I.
|
Greater
than or
equal
to 3.25:1
|
1.125%
|
0.00%
|
1.125%
|
0.200%
|
|
II.
|
Greater
than or
equal
to 2.75:1
but
less than 3.25:1
|
0.875%
|
0.00%
|
0.875%
|
0.175%
|
|
III.
|
Less
than
2.75:1
|
0.625%
|
0.00%
|
0.625%
|
0.150%
|
Any
change in the applicable margin shall become effective on the first day after
receipt by the Lenders of financial statements delivered pursuant to §6.4(a) or
(b) which indicate a change in the Leverage Ratio. If at any time
such financial statements are not delivered within the time periods specified
in
§6.4(a) or (b), the applicable margin shall be the highest rate set forth in
the
respective column of the Pricing Table, subject to adjustment upon actual
receipt of such financial statements. In the event either the
Borrowers or the Administrative Agent determine, in good faith, that
the calculation of the Leverage Ratio on which the applicable margin for any
particular period was determined is inaccurate and, as a consequence thereof,
the applicable margin utilized by the Lenders was lower than it should have
been, (i) the Borrowers shall deliver to the Administrative Agent a correct
Compliance Certificate for such period (and if such Compliance Certificate
is
not accurately restated and delivered within fifteen (15) days of the first
discovery of such inaccuracy, then Pricing Level I shall apply retroactively
for
such period notwithstanding any subsequent adjustment thereof after such fifteen
(15) day period), (ii) the Administrative Agent shall determine and notify
the
Borrowers of the amount of interest or fees,
14
as
applicable, that would have been due in respect of
any outstanding Obligations during such period had the applicable margin been
calculated based on the correct Leverage Ratio (or the Pricing Level I
applicable margin if such corrected Compliance Certificate was not timely
delivered), and (iii) the Borrowers shall promptly pay to the Administrative
Agent the difference between that amount and the amount actually paid in respect
of such period.
Public
Lender. See §6.4.
RCRA. See
definition of Release.
Real
Property. All real property heretofore, now, or hereafter owned
or leased by the Borrowers.
Receivables
SPV. Any one or more direct or indirect wholly-owned Subsidiaries
of the Parent formed for the sole purpose of engaging in Permitted Receivables
Transactions, and which engage in no business activities other than those
related to Permitted Receivables Transactions.
Reference
Period. As of any date of determination, the period of four (4)
consecutive fiscal quarters of the Borrowers ending on such date, or if such
date is not a fiscal quarter end date, the period of four (4) consecutive fiscal
quarters most recently ended (in each case treated as a single accounting
period).
Register. See
§16(d).
Reimbursement
Obligation. The Borrowers’ obligation to reimburse the
Administrative Agent and the Revolving Credit Lenders on account of any drawing
under any Letter of Credit as provided in §3.2.
Related
Parties. With respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.
Release. Shall
have the meaning specified in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §§9601
etseq. (“CERCLA”) and the term “Disposal” (or
“Disposed”) shall have the meaning specified
in the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. §§6901 etseq. (“RCRA”)
and regulations promulgated thereunder; providedthat in the event
either CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply as of the effective date
of
such amendment and provided further, to the extent that the laws of a
state wherein the property lies establishes a meaning for “Release” or
“Disposal” which is broader than specified in either CERCLA or RCRA, such
broader meaning shall apply.
Replacement
Lender. See §4.12.
Replacement
Notice. See §4.12.
15
Required
Lenders. As of any date, any combination of Lenders the sum of
whose aggregate Revolving Credit Commitments constitute at least fifty-one
percent (51%) of the Total Revolving Credit Commitment or, if the
Total Revolving Credit Commitment has been terminated or if the Revolving Credit
Loan Maturity Date has occurred, any combination of Lenders holding at least
fifty-one percent (51%) of the total outstanding principal amount of the Loans
and the Maximum Drawing Amount and all Unpaid Reimbursement Obligations of
Letters of Credit on such date.
Restricted
Payment. Any (a) Distribution, (b) payment or prepayment by any
Borrower or any Subsidiary to (i) such Borrowers’ or such Subsidiaries
shareholders (or other equity holders), in each case, other than to another
Borrower, or (ii) to any Affiliate of such Borrower or such Subsidiary or any
Affiliate of such Borrower’s or such Subsidiary’s shareholders (or other equity
holders), in each case, other than to another Borrower; provided,
however, that in the case of each of clauses (b)(i) and (b)(ii), no
Restricted Payment shall be deemed to have occurred as a result of a payment
to
an executive or an employee of a Borrower in such Person’s capacity as an
executive or an employee, or (c) derivatives or other transactions with any
financial institution, commodities or stock exchange or clearinghouse (a
“DerivativesCounterparty”) obligating such Borrower or such
Subsidiary to make payments to such Derivatives Counterparty as a result of
any
change in market value of any Capital Stock of such Borrower or such
Subsidiary.
Revolving
Credit Lenders. The Lenders set forth on Schedule 1 as
Revolving Credit Lenders, acting in their role as makers of Revolving Credit
Loans or as participants with respect to Letters of Credit, together with any
other Person who becomes an assignee of any rights and obligations of a
Revolving Credit Lender pursuant to §16.
Revolving
Credit Loans. Revolving credit loans made or to be made by the
Revolving Credit Lenders to the Borrowers pursuant to §2.
Revolving
Credit Maturity Date. September 27, 2012.
Revolving
Credit Notes. To the extent requested by any Revolving Credit
Lender, the promissory notes of the Borrowers evidencing the Revolving Credit
Loans made or to be made by such Lender hereunder.
Revolving
Credit Note Record. A record with respect to a Revolving Credit
Note.
S&P. Standard
& Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and
any successor thereto.
Settlement. The
making or receiving of payments, in immediately available funds, by the Lenders
to or from the Administrative Agent in accordance with §2.10 hereof to the
extent necessary to cause each such Lender’s actual share of the outstanding
amount of the Revolving Credit Loans to be equal to such Lender’s Commitment
Percentage of the outstanding amount of such Revolving Credit Loans, in any
case
when, prior to such action, the actual share is not so equal.
Settlement
Amount. See §2.10(b).
16
Settlement
Date. See §2.10(b).
Settling
Lender. See §2.10(b).
Subsidiary. Any
corporation, association, trust, or other business entity of which any Borrower
shall at any time own directly, or indirectly through a Subsidiary or
Subsidiaries, at least a majority of the outstanding Capital Stock or other
interest entitled to vote generally.
Swap
Contracts. Any agreement (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or other similar agreement (including
any
option to enter into any of the foregoing).
Swing
Line Loan(s). See §2.10(a).
Swing
Line Note. See §2.10(a).
Syndication
Agents. See preamble.
Synthetic
Lease. Any lease treated as an operating lease under generally
accepted accounting principles and as a loan or financing for U.S. income tax
purposes.
Total
Revolving Credit Commitment. The sum of the Commitments of the
Revolving Credit Lenders, which shall equal $800,000,000 on the Closing Date,
as
the same may be increased or reduced from time to time in accordance with this
Credit Agreement.
Unpaid
Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrowers do not reimburse the Administrative Agent and the Lenders on
the
date specified in, and in accordance with, §3.2.
§1.2. Rules
of Interpretation.
(a) A
reference to any document or agreement shall include such document or agreement
as amended, modified or supplemented from time to time in accordance with its
terms and the terms of this Credit Agreement.
(b) The
singular includes the plural and the plural includes the singular.
(c) A
reference to any law includes any amendment or modification to such
law.
(d) A
reference to any Person includes its permitted successors and permitted
assigns.
17
(e) Accounting
terms capitalized but not otherwise defined herein have the meanings assigned
to
them by generally accepted accounting principles applied on a consistent basis
by the accounting entity to which they refer.
(f) The
words “include,” “includes” and “including” are not limiting.
(g) All
terms not specifically defined herein or by generally accepted accounting
principles, which terms are defined in the Uniform Commercial Code as in effect
in the State of New York, have the meanings assigned to them
therein.
(h) Reference
to a particular “§” refers to that section of this Credit Agreement unless
otherwise indicated.
(i) The
words “herein,” “hereof,” “hereunder” and words of like import shall refer to
this Credit Agreement as a whole and not to any particular section or
subdivision of this Credit Agreement.
(j) Unless
otherwise expressly indicated, in the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including,” the words “to” and “until” each mean “to but excluding,” and the
word “through” means “to and including.”
§2. THE
REVOLVING CREDIT FACILITY.
§2.1. Commitment
to Lend.
Subject
to the terms and conditions set forth in this Credit Agreement, each of the
Revolving Credit Lenders severally, but not jointly, agrees to lend to the
Borrowers, and the Borrowers may borrow, repay, and reborrow from time to time
from the Closing Date to the Revolving Credit Maturity Date, upon notice by
the
Borrowers to the Administrative Agent given in accordance with §2.5, such sums
as are requested by the Borrowers up to a maximum aggregate amount outstanding
(after giving effect to all amounts requested) at any one time equal to such
Revolving Credit Lender’s Commitment minus such Revolving Credit Lender’s
Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations, provided that the sum of the outstanding
amount of the Revolving Credit Loans plus the outstanding amount of the
Swing Line Loans plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the Total Revolving
Credit Commitment at such time. The Revolving Credit Loans shall be
made pro rata in accordance with each Revolving Credit Lender’s
Commitment Percentage. Each request for a Loan hereunder shall
constitute a representation and warranty by the Borrowers that the conditions
set forth in §9 and §10, as the case may be, have been satisfied on the date of
such request.
§2.2. Reduction
of Total Revolving Credit Commitment.
(a) The
Borrowers shall have the right at any time and from time to time upon five
(5)
Business Days’ prior written notice to the Administrative Agent to reduce by
$5,000,000 or integral multiples of $1,000,000 in excess thereof, or terminate
entirely,
18
the
Total Revolving Credit Commitment, whereupon the
Commitments of the Revolving Credit Lenders shall be reduced pro rata
in accordance with their respective Commitment Percentages of the amount
specified in such notice or, as the case may be, terminated. The
Administrative Agent will notify the Revolving Credit Lenders promptly after
receiving any notice of the Borrowers delivered pursuant to this
§2.2.
(b) No
reduction or termination of the Commitments once made may be revoked; the
portion of the Commitments reduced or terminated may not be reinstated; and
amounts in respect of such reduced or terminated portion may not be
reborrowed.
§2.3. Evidence
of Indebtedness; Revolving Credit Notes.
(a) Loan
Accounts. Each Revolving Credit Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing Indebtedness of the Borrowers to such Lender resulting from each
Revolving Credit Loan of such Lender from time to time, including the amounts
of
principal and interest payable and paid to such Lender from time to time under
this Credit Agreement. The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Revolving Credit Loan
made hereunder and each Interest Period applicable thereto, (ii) the amount
of
any principal or interest due and payable or to become due and payable from
the
Borrowers to each Revolving Credit Lender hereunder and (iii) both the amount
of
any sum received by the Administrative Agent hereunder for the account of the
Revolving Credit Lenders and each Revolving Credit Lender’s share thereof (if
any). The entries made in the accounts maintained by each Revolving
Credit Lender pursuant to this §2.3(a) (or any Revolving Credit Note Record
referred to below) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the
Borrowers therein recorded; provided, however, that the failure of
any Revolving Credit Lender or the Administrative Agent to maintain any such
accounts or Revolving Credit Note Record, or any error therein, shall not in
any
manner affect the obligation of the Borrowers to repay (with applicable
interest) the Revolving Credit Loans made in accordance with the terms of this
Credit Agreement.
(b) Revolving
Credit Notes. Upon the request of any Revolving Credit
Lender, the Borrowers shall execute and deliver to such Revolving Credit Lender
a promissory note (each, a “Revolving Credit Note”), which shall (i) be
payable to the order of such Revolving Credit Lender and be dated the Closing
Date (or, in the case of Revolving Credit Notes issued after the Closing Date,
be dated the date of the issuance thereof), (ii) be in a stated principal amount
equal to the Commitment of such Revolving Credit Lender or, if less, the
outstanding amount of all Revolving Credit Loans made by such Lender, plus
interest thereon, as set forth in §2.4 herein, (iii) mature on the Revolving
Credit Loan Maturity Date, and (iv) be entitled to the benefits of this Credit
Agreement and the other Loan Documents. The Borrowers irrevocably
authorize each Revolving Credit Lender with a Revolving Credit Note to make
or
cause to be made, at or about the time of the Drawdown Date of any Revolving
Credit Loan or at the time of receipt of any payment of principal on such
Lender’s Revolving Credit Note, an appropriate notation on such Lender’s
Revolving Credit Note Record reflecting the making of such Revolving Credit
Loan
or (as the case may be) the receipt of such
19
payment. Each
Revolving Credit Lender
holding a Revolving Credit Note will, prior to any transfer of such Revolving
Credit Note, endorse on the reverse side thereof the outstanding principal
amount of Revolving Credit Loans evidenced thereby. Failure to make
such notation or any error in any such notation or endorsement shall not affect
the Borrowers’ obligations in respect of such Revolving Credit
Loans.
§2.4. Interest
on Revolving Credit Loans. The outstanding principal
amount of the Revolving Credit Loans shall bear interest at the rate per annum
equal to (a) the Base Rate plus the Applicable Base Rate Margin on Base
Rate Loans or (b) the Eurodollar Rate plus the Applicable Eurodollar
Margin on Eurodollar Loans. Interest shall be payable in respect of
each Revolving Credit Loan in arrears on each Interest Payment Date with respect
thereto.
§2.5. Requests
for Revolving Credit Loans.
(a) Loan
and Letter of Credit Requests. The Borrowers shall give to the
Administrative Agent written notice in the form of Exhibit A hereto
(or telephonic notice confirmed by telecopy on the same Business Day in the
form
of Exhibit A hereto) of each Revolving Credit Loan requested
hereunder (a “Loan and Letter of Credit Request”) not later than
(a) 11:00 a.m. Boston time one (1) Business Day prior to the
proposed Drawdown Date of any Base Rate Loan, or (b) 11:00 a.m. Boston
time three (3) Eurodollar Business Days prior to the proposed Drawdown Date
of any Eurodollar Loan. Each such notice shall be given by the
Borrowers and shall specify the principal amount of the Revolving Credit Loan
requested and shall include a current Loan and Letter of Credit Request
reflecting the aggregate amount of outstanding Revolving Credit Loans and Swing
Line Loans and Letter of Credit Obligations. Each Loan and Letter of
Credit Request shall be irrevocable and binding on the Borrowers and shall
obligate the Borrowers to accept the Revolving Credit Loan requested from the
Revolving Credit Lenders on the proposed Drawdown Date. Each of the
representations and warranties made by or on behalf of the Borrowers to the
Revolving Credit Lenders or the Administrative Agent in this Credit Agreement
or
any other Loan Document shall be true and correct in all material respects
when
made and shall, for all purposes of this Credit Agreement, be deemed to be
repeated on and as of the date of the submission of any Loan and Letter of
Credit Request and on and as of the Drawdown Date of such Loan, or the date
of
issuance of such Letter of Credit (except to the extent of changes resulting
from transactions contemplated or permitted by this Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, or to the extent
that such representations and warranties expressly relate solely to an earlier
date). The Administrative Agent shall promptly notify each Revolving
Credit Lender of each Loan and Letter of Credit Request received by the
Administrative Agent hereunder.
(b) Appointment
of Borrower Representative. Each Borrower hereby designates the
Parent as its representative and agent on its behalf (the “Borrower
Representative”) for the purposes of issuing Loan and Letter of Credit
Requests, giving instructions with respect to the disbursement of the proceeds
of the Revolving Loans, selecting interest rate options, submitting Compliance
Certificates and giving and receiving all other notices and consents hereunder
or under any of the other Loan
20
Documents. The
Borrower Representative
hereby accepts such appointment. The Administrative Agent and any
Lender may regard any notice or other communication pursuant to any Loan
Document from the Borrower Representative as a notice or communication from
all
Borrowers, and may give any notice or communication required or permitted to
be
given to any Borrower or Borrowers hereunder to the Borrower Representative
on
behalf of such Borrower or Borrowers. Each Borrower agrees that each
notice, election, representation and warranty, covenant, agreement and
undertaking made on its behalf by the Borrower Representative shall be deemed
for all purposes to have been made by such Borrower and shall be binding upon
and enforceable against such Borrower to the same extent as if the same had
been
made directly by such Borrower.
§2.6. Funds
for Revolving Credit Loans.
(a) Not
later than 1:00 p.m. (Boston time) on the proposed Drawdown Date of any
Revolving Credit Loan, each of the Revolving Credit Lenders will make available
to the Administrative Agent, at the Administrative Agent’s Office, in
immediately available funds, the amount of such Lender’s Commitment Percentage
of the amount of the requested Revolving Credit Loans. Upon receipt
from each Revolving Credit Lender of such amount, and upon receipt of the
documents required by §§9 and 10 and the satisfaction of the other conditions
set forth therein, to the extent applicable, the Administrative Agent will
make
available to the Borrowers in immediately available funds the aggregate amount
of such Revolving Credit Loans made available to the Administrative Agent by
the
Revolving Credit Lenders. The failure or refusal of any Revolving
Credit Lender to make available to the Administrative Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage
of
the requested Revolving Credit Loans shall not relieve any other Revolving
Credit Lender from its several obligation hereunder to make available to the
Administrative Agent the amount of such other Revolving Credit Lender’s
Commitment Percentage of any requested Revolving Credit Loans.
(b) The
Administrative Agent may, unless notified to the contrary by any Revolving
Credit Lender prior to a Drawdown Date, assume that such Lender has made
available to the Administrative Agent on such Drawdown Date the amount of such
Lender’s Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but shall not be required
to),
in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If any Revolving Credit Lender makes available
to the Administrative Agent such amount on a date after such Drawdown Date,
such
Lender shall pay to the Administrative Agent on demand an amount equal to the
product of (i) the average computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Administrative Agent
for federal funds acquired by the Administrative Agent during each day included
in such period, times (ii) the amount of such Lender’s Commitment
Percentage of such Revolving Credit Loans, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including such
Drawdown Date to the date on which the amount of such Lender’s Commitment
Percentage of such Revolving Credit Loans shall become immediately available
to
the Administrative Agent, and the
21
denominator
of which is 365. A statement
of the Administrative Agent submitted to such Revolving Credit Lender with
respect to any amounts owing under this paragraph shall be
primafacie evidence, absent manifest error, of the amount due and
owing to the Administrative Agent by such Lender. If the amount of
such Revolving Credit Lender’s Commitment Percentage of such Revolving Credit
Loans is not made available to the Administrative Agent by such Lender within
three (3) Business Days following such Drawdown Date, the Administrative Agent
shall be entitled to recover such amount from the Borrowers on demand, with
interest thereon at the rate per annum applicable to the Revolving Credit Loans
made on such Drawdown Date.
§2.7. Maturity
of the Revolving Credit Loans. The Revolving Credit
Loans shall be due and payable on the Revolving Credit Maturity
Date. The Borrowers jointly and severally promise to pay on the
Revolving Credit Maturity Date all Revolving Credit Loans outstanding on such
date, together with any and all accrued and unpaid interest
thereon.
§2.8. Mandatory
Repayments of the Revolving Credit Loans. If at any time
the outstanding amount of the Revolving Credit Loans plus Swing Line
Loans plus the Maximum Drawing Amount plus Unpaid Reimbursement
Obligations exceeds the Total Revolving Credit Commitment, whether by reduction
of the Total Revolving Credit Commitment or otherwise, then the Borrowers shall
immediately pay the amount of such excess to the Administrative Agent for
application to the Revolving Credit Loans, or if no Revolving Credit Loans
shall
be outstanding, to the Swing Line Loans, or if no Swing Line Loans shall be
outstanding, to be held by the Administrative Agent as collateral security
for
the Reimbursement Obligations, provided, however, that if the
amount of cash collateral held by the Administrative Agent pursuant to this
§2.8
exceeds the amount of the Obligations, the Administrative Agent shall return
such excess to the Borrowers.
§2.9. Optional
Prepayments or Repayments of Revolving Credit Loans. The
Borrowers shall have the right, at their election, to repay or prepay the
outstanding amount of the Revolving Credit Loans, as a whole or in part, at
any
time without penalty or premium (other than the obligation to reimburse the
Revolving Credit Lenders and the Administrative Agent pursuant to §4.9
hereof). The Borrowers shall give written notice to the
Administrative Agent (or telephonic notice confirmed in writing) no later than
(a) 1:00 p.m. (Boston time) on the Business Day of the proposed
prepayment or repayment of any Base Rate Loan or (b) 1:00 p.m. (Boston
time) three (3) Eurodollar Business Days prior to the proposed prepayment or
repayment of any Eurodollar Loan, in each case specifying the proposed date
of
prepayment or repayment of Loans and the principal amount to be
paid. Each such partial repayment of the Revolving Credit Loans shall
be $1,000,000 or integral multiples of $100,000 in excess thereof, and shall
be
accompanied by the payment of accrued interest on the principal prepaid to
the
date of repayment and shall be applied, in the absence of instruction by the
Borrowers, first to the principal of Base Rate Loans and then to the principal
of Eurodollar Loans. Each partial prepayment shall be allocated among
the Revolving Credit Lenders, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Revolving Credit Lender’s Revolving
Credit Loans, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
§2.10. Swing
Line Loans; Settlements.
22
(a) So
long as Bank of America has not received written notice of a Default or an
Event
of Default made in accordance with the provisions of this Credit Agreement,
solely for ease of administration of the Revolving Credit Loans, Bank of America
may, upon receipt of a Loan and Letter of Credit Request no later than 2:00
p.m.
(Boston time) on the proposed date of funding, but shall not be required to,
fund Base Rate Loans (“Swing Line Loans”) for periods not to exceed seven (7)
days in any one case, bearing interest as set forth for Base Rate Loans in
§2.4.
The Swing Line Loans shall be evidenced by a promissory note of the Borrowers
(the “Swing Line Note”) dated as of the Closing Date, and shall each be
in a minimum amount of $500,000 or integral multiples of $100,000 in excess
thereof, providedthat the outstanding amount of Swing Line Loans
advanced by Bank of America hereunder shall not exceed $25,000,000 at any
time. Each Revolving Credit Lender shall remain severally, but not
jointly, and unconditionally liable to fund its pro rata share (based
upon each Revolving Credit Lender’s Commitment Percentage) of such Swing Line
Loans on each Settlement Date and, in the event Bank of America chooses not
to
fund all Base Rate Loans requested on any date, to fund its Commitment
Percentage of the Base Rate Loans requested, subject to satisfaction of the
provisions hereof relating to the making of Base Rate Loans. Prior to
each Settlement, all payments or repayments of the principal of, and interest
on, Swing Line Loans shall be credited to the account of Bank of
America.
(b) The
Revolving Credit Lenders shall effect Settlements on (i) the Business Day
immediately following any day which the Administrative Agent gives written
notice to the Revolving Credit Lenders to effect a Settlement, (ii) the Business
Day immediately following the Administrative Agent’s becoming aware of the
existence of any Default or Event of Default, (iii) the Revolving Credit
Maturity Date, (iv) any date on which the Borrowers wish to convert a Swing
Line
Loan into a Base Rate Loan, and (v) in any event, the seventh day on which
any
Swing Line Loan remains outstanding (each such date, a “Settlement
Date”). One (1) Business Day prior to each such Settlement Date, the
Administrative Agent shall give telephonic notice to the Revolving Credit
Lenders of (A) the respective outstanding amount of Revolving Credit Loans
made
by each Revolving Credit Lender as at the close of business on the prior day,
(B) the amount that any Revolving Credit Lender, as applicable (a “Settling
Lender”), shall pay to effect a Settlement (a “Settlement Amount”). A
statement of the Administrative Agent submitted to the Revolving Credit Lenders
with respect to any amounts owing hereunder shall be primafacie
evidence of the amount due and owing. Each Settling Lender shall, not
later than 1:00 p.m. (Boston time) on each Settlement Date, effect a wire
transfer of immediately available funds to the Administrative Agent at the
Administrative Agent’s Office in the amount of such Revolving Credit Lender’s
Settlement Amount. All funds advanced by any Revolving Credit Lender
as a Settling Lender pursuant to this §2.10 shall for all purposes be treated as
a Base Rate Loan to the Borrowers.
(c) The
Administrative Agent may (unless notified to the contrary by any Settling Lender
by 12:00 noon (Boston time) one (1) Business Day prior to the Settlement Date)
assume that each Settling Lender has made available (or will make available
by
the time specified in §2.7(b)) to the Administrative Agent its Settlement
Amount, and the Administrative Agent may (but shall not be required to), in
reliance upon such assumption, effect Settlements. If the Settlement
Amount of such Settling
23
Lender
is made available to the Administrative Agent
on a date after such Settlement Date, such Settling Lender shall pay the
Administrative Agent on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below, of the
weighted average annual interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included
in
such period times (ii) such Settlement Amount times (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Settlement Date to but not including the date on which such
Settlement Amount shall become immediately available to the Administrative
Agent, and the denominator of which is 365. Upon payment of such
amount such Settling Lender shall be deemed to have delivered its Settlement
Amount on the Settlement Date and shall become entitled to interest payable
by
the Borrowers with respect to such Settling Lender’s Settlement Amount as if
such share were delivered on the Settlement Date. If such Settlement
Amount is not in fact made available to the Administrative Agent by such
Settling Lender within five (5) Business Days of such Settlement Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrowers, with interest thereon at the Base Rate.
(d) After
any Settlement Date, any payment by the Borrowers of Swing Line Loans hereunder
shall be allocated pro rata among the Revolving Credit Lenders, in
accordance with such Lender’s Commitment Percentage.
(e) If,
prior to the making of a Revolving Credit Loan pursuant to paragraph (b) of
this
§2.10, a Default or Event of Default has occurred and is continuing, each
Revolving Credit Lender will, on the date such Revolving Credit Loan was to
have
been made, purchase an undivided participating interest in the outstanding
Swing
Line Loans in an amount equal to its Commitment Percentage of such Swing Line
Loans. Each Revolving Credit Lender will immediately transfer to the
Administrative Agent, in immediately available funds, the amount of its
participation and upon receipt thereof the Administrative Agent will deliver
to
such Revolving Credit Lender a Swing Line participation certificate dated the
date of receipt of such funds and in such amount.
(f) Whenever,
at any time after the Administrative Agent has received from any Revolving
Credit Lender such Revolving Credit Lender’s participating interest in the Swing
Line Loans pursuant to clause (e) above, the Administrative Agent receives
any
payment on account thereof, the Administrative Agent will distribute to such
Revolving Credit Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Revolving Credit Lender’s participating interest was outstanding and
funded) in like funds as received; provided, however, that in the
event that such payment received by the Administrative Agent is required to
be
returned, such Revolving Credit Lender will return to the Administrative Agent
any portion thereof previously distributed by the Administrative Agent to it
in
like funds as such payment is required to be returned by the Administrative
Agent.
(g) Each
Revolving Credit Lender’s obligation to purchase participating interests
pursuant to clause (e) above shall be absolute and unconditional and shall
not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim,
24
recoupment,
defense or other right which such
Revolving Credit Lender may have against the Administrative Agent, the Borrowers
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrowers or any other Person; (iv)
any breach of this Credit Agreement by the Borrowers or any other Revolving
Credit Lender or Administrative Agent; or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the
foregoing.
§2.11. Increase
In Total Revolving Credit Commitment.
(a) Request
for Increase. Upon notice to the Administrative Agent (which
shall promptly notify the Lenders), the Borrowers may from time to time solicit
an increase in the Total Revolving Credit Commitment in an aggregate amount
(for
all such requests) not to exceed $200,000,000. At the time of sending
such notice, the Borrowers (in consultation with the Administrative Agent)
shall
specify the time period within which each Lender then a Lender is requested
to
respond (which shall in no event be less than ten (10) Business Days from the
date of delivery of such notice to such Lender). Nothing contained
herein shall constitute, or otherwise be deemed to be, a commitment on the
part
of any Lender to increase its Commitment hereunder.
(b) Lender
Elections to Increase. Each Lender then a Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment, and, if so, whether by an amount equal to, greater
than, or less than its Commitment Percentage of such requested
increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment.
(c) Notification
by Administrative Agent; Additional Lender Consent to
Amendments. The Administrative Agent shall notify the Borrowers
and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a solicited increase, and
subject to the approval of the Administrative Agent (which approval shall not
be
unreasonably withheld), the Borrowers may also invite additional Eligible
Assignees to become Lenders pursuant to an Instrument of Accession in the form
of Exhibit F hereto (an “Instrument of Accession”).
(d) Effective
Date and Allocations. If the Total Revolving Credit Commitment is
increased in accordance with this §2.11, the Administrative Agent and the
Borrowers shall determine the effective date (the “Increase Effective
Date”) and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrowers and the Lenders of
the
final allocation of such increase and the Increase Effective Date. On
the Increase Effective Date, Schedule 1 hereto shall be deemed to be
amended to reflect (x) the name, address, Commitment and Commitment Percentage
of each new Lender, (y) the amount of the Total Revolving Credit Commitment
after giving effect to such increase, and (z) the changes to the respective
Commitments and Commitment Percentages of the other Lenders resulting from
such
increase. Any additional Revolving Credit Loans and Commitments shall mature
or
terminate, as the case may be, on the Revolving Credit Maturity
Date.
25
(e) Conditions
to Effectiveness of Increase. As a condition precedent to any
such increase in the Total Revolving Credit Commitment, the Borrowers shall
deliver to the Administrative Agent a certificate of the Borrowers dated as
of
the Increase Effective Date (in sufficient copies for each Lender) signed by
the
CFO (i) certifying and attaching the resolutions adopted by the Borrowers
approving or consenting to such increase and (ii) certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in §5 of this Credit Agreement and the other Loan Documents are true
and correct on and as of the Increase Effective Date, except to the extent
of
changes resulting from transactions contemplated or permitted by the Credit
Agreement or the other Loan Documents or changes occurring in the ordinary
course of business that singly or in the aggregate do not have a Material
Adverse Effect or to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this §2.11, the
representations and warranties contained in subsections (a) and (b) of §5.4
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of §6.4, and (B) no Default
exists. The Borrowers shall prepay any Revolving Credit Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to §4.9) to the extent necessary to keep the outstanding
Revolving Credit Loans, as applicable, ratable with any revised Commitment
Percentages arising from any nonratable increase in the Commitments under this
§2.11.
(f) Conflicting
Provisions. This §2.11 shall supersede any provisions in §24 to
the contrary.
§3. LETTERS
OF CREDIT.
§3.1. Letter
of Credit Commitments.
§3.1.1. Commitment
to Issue Letters of Credit.
(a) Subject
to the terms and conditions hereof and the execution and delivery by the
Borrowers of a letter of credit application on the Issuing Lender’s customary
form (a “Letter of Credit Application”), the Issuing Lender on behalf of
the Revolving Credit Lenders and in reliance upon the agreement of the Revolving
Credit Lenders set forth in §3.1.4 and upon the representations and warranties
of the Borrowers contained herein, agrees, in its individual capacity, to issue
and extend for the account of the Borrowers one or more standby letters of
credit (each, a “Letter of Credit”) including, in the case of L/C
Supported IRBs, so called direct pay Letters of Credit (each, an “IRB Letter
of Credit”), in such form as may be requested from time to time by the
Borrowers and agreed to by the Issuing Lender; provided, however,
that, after giving effect to such request, the Maximum Drawing Amount shall
not
exceed the Total Revolving Credit Commitment minus the aggregate
outstanding amount of the Revolving Credit Loans, the Swing Line Loans and
the
Unpaid Reimbursement Obligations. Notwithstanding any other
provisions of this Credit Agreement, the Issuing Lender shall not issue or
extend a Letter of Credit after it has received notice from any Lender or the
Administrative Agent that a Default or Event of Default has occurred and stating
that no Letters of Credit are to
26
be
issued or extended until such Default or Event of
Default has been cured or waived in accordance with the provisions of this
Credit Agreement.
(b) The
Issuing Lender shall not be under any obligation to issue any Letter of Credit
if:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purport to enjoin or restrain the Issuing Lender from issuing such
Letter of Credit, or any Law applicable to the Issuing Lender or any request
or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall prohibit, or request
that the Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the
Issuing Lender with respect to such Letter of Credit any restriction, reserve
or
capital requirement (for which the Issuing Lender is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the Issuing
Lender any unreimbursed loss, cost or expense which was not applicable on the
date hereof and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to
it;
(ii) the
issuance of such Letter of Credit would violate one or more policies of the
Issuing Lender;
(iii) except
as otherwise agreed by the Administrative Agent and the Issuing Lender, such
Letter of Credit is in an initial stated amount less than $100,000;
(iv) such
Letter of Credit is to be denominated in a currency other than
Dollars;
(v) such
Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(vi) a
default of any Revolving Credit Lender’s obligations to fund under §3.3 exists
or any Revolving Credit Lender is at such time a Delinquent Lender hereunder,
unless the Issuing Lender has entered into satisfactory arrangements with the
Borrowers or such Revolving Credit Lender to eliminate the Issuing Lender’s risk
with respect to such Revolving Credit Lender.
§3.1.2. Letter
of Credit Applications.
(a) Each
Letter of Credit Application shall be completed to the satisfaction of the
Issuing Lender. In the event that any provision of any Letter of
Credit Application shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the extent
of
any such inconsistency, govern. Such Letter of Credit Application
must be received by the Issuing Lender and the Administrative Agent not later
than 11:00 a.m. at least two Business Days (or such later date and time as
the
Administrative Agent and the Issuing Lender may agree in a particular instance
in their sole discretion) prior to the proposed issuance date or date of
amendment, as the
27
case
may be. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the Issuing
Lender: (i) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (ii) the amount thereof; (iii) the
expiry date thereof; (iv) the name and address of the beneficiary thereof;
(v)
the documents to be presented by such beneficiary in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (vii) such other matters
as
the Issuing Lender may reasonably require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Issuing Lender
(w) the Letter of Credit to be amended; (x) the proposed date of amendment
thereof (which shall be a Business Day); (y) the nature of the proposed
amendment; and (z) such other matters as the Issuing Lender may reasonably
require. Additionally, the Borrowers shall furnish to the Issuing
Lender and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the Issuing Lender or the Administrative Agent may
reasonably require.
(b) Promptly
after receipt of any Letter of Credit Application, the Issuing Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the applicable Borrower(s) and, if not, the Issuing Lender will provide
the
Administrative Agent with a copy thereof. Unless the Issuing Lender
has received written notice from any Revolving Credit Lender, the Administrative
Agent or any Borrower, at least one Business Day prior to the requested date
of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in §§9 and 10 shall not then be satisfied, then,
subject to the terms and conditions hereof, the Issuing Lender shall, on the
requested date, issue a Letter of Credit for the account of the applicable
Borrower(s) or enter into the applicable amendment, as the case may be, in
each
case in accordance with the Issuing Lender’s usual and customary business
practices.
§3.1.3. Terms
of Letters of Credit. Each Letter of
Credit issued or extended hereunder shall, among other things, (a) provide
for
the payment of sight drafts for honor thereunder when presented in accordance
with the terms thereof and when accompanied by the documents described therein,
(b) be subject to clause (c) hereof and §3.1.7, and (other than with respect to
IRB Letters of Credit) shall have a term of not more than one (1) year from
the
date of issuance or extension thereof and (c) have an expiry date no later
than
the Letter of Credit Expiration Date.
§3.1.4. Reimbursement
Obligations of Lenders. Each Revolving
Credit Lender severally agrees that it shall be absolutely liable, without
regard to the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Revolving Credit Lender’s
Commitment Percentage thereof, to reimburse the Administrative Agent on demand
for the amount of each draft paid by the Issuing Lender under each Letter of
Credit issued in accordance with the terms hereof to the extent that such amount
is not reimbursed by the Borrowers pursuant to §3.2 (such agreement for a Lender
being called herein the “Letter of Credit Participation” of such
Lender). Without limiting the foregoing, each Revolving Credit
Lender’s obligation to
28
purchase
Letter of Credit Participations shall be
absolute and unconditional and shall not be affected by any circumstance,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may have against the Administrative Agent,
the Issuing Lender, any Borrower or any other Person for any reason whatsoever;
(b) the occurrence and continuation of any Default or Event of Default; (c)
any
adverse change in the condition (financial or otherwise) of any Borrower or
any
Revolving Credit Lender; (d) any breach of any of the Loan Documents by any
Borrower or any Revolving Credit Lender; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
§3.1.5. Participations
of Lenders. Each such payment made by a
Revolving Credit Lender shall be treated as the purchase by such Revolving
Credit Lender of a participating interest in the Borrowers’ Reimbursement
Obligation under §3.2 in an amount equal to such payment. Each
Revolving Credit Lender shall share in accordance with its participating
interest in any interest which accrues pursuant to §3.2.
§3.1.6. Existing
Letters of Credit. The parties hereby
agree that the letters of credit issued under the Existing Credit Agreement
and
listed on Schedule 3.1 hereto shall be deemed to have been issued
pursuant to this Credit Agreement and from and after the Closing Date shall
be
subject to and governed by the terms and conditions hereof. In
addition, this Credit Agreement shall be the “Reimbursement Agreement” or
the “Credit Agreement”, as the case may be, referred to in the bond
documentation relating to the IRB Letters of Credit.
§3.1.7. Auto
Extension Letters of Credit. If any
Borrower so requests in an application for a Letter of Credit, the Issuing
Lender may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter
of Credit”); provided that any such Auto- Extension Letter of Credit must permit
the Issuing Lender to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a
date
(the “Non Extension Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise
directed by the Issuing Lender, the Borrowers shall not be required to make
a
specific request to the Issuing Lender for any such extension. Once
an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders
shall be deemed to have authorized (but may not require) the Issuing Lender
to
permit the extension of such Letter of Credit at any time to an expiry date
not
later than thirty (30) days prior to the Revolving Credit Maturity Date;
provided, however, that the Issuing Lender shall not permit any such extension
if (A) the Issuing Lender has determined that it would have no obligation at
such time to issue such Letter of Credit in its extended form under the terms
hereof, or (B) it has received notice (which may be by telephone or in writing)
on or before the day that is two (2) Business Days before the Non Extension
Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent,
any
Lender or the Borrowers that one or more of the applicable conditions specified
in §10 is not then satisfied.
29
§3.2. Reimbursement
Obligation of the Borrowers. In order
to induce the Issuing Lender to issue and extend each Letter of Credit and
the
Revolving Credit Lenders to participate therein, the Borrowers hereby agree
to
reimburse or pay to the Administrative Agent, for the account of the Issuing
Lender, with respect to each Letter of Credit issued or extended by the Issuing
Lender hereunder:
(a) except
as otherwise expressly provided in §3.2(b) and (c), on each date that any draft
presented under any Letter of Credit is honored by the Issuing Lender, or the
Issuing Lender otherwise makes a payment with respect thereto, (i) the amount
paid by the Issuing Lender under or with respect to such Letter of Credit,
and
(ii) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Issuing Lender or any Revolving Credit Lender in
connection with any payment made by the Issuing Lender or any Revolving Credit
Lender under, or with respect to, such Letter of Credit;
provided however, if the Borrowers do not reimburse the
Administrative Agent on the Drawdown Date, such amount shall, provided that
no
Event of Default under §§11.1(g) or 11.1(h) has occurred, become automatically a
Revolving Credit Loan which is a Base Rate Loan advanced hereunder in an amount
equal to such sum; and
(b) upon
the reduction (but not termination) of the Total Revolving Credit Commitment
to
an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent for the
benefit of the Revolving Credit Lenders and the Issuing Lender as cash
collateral for all Reimbursement Obligations; and
(c) upon
the Revolving Credit Maturity Date, or upon the termination of the Total
Revolving Credit Commitment, or the acceleration of the Reimbursement
Obligations with respect to all Letters of Credit in accordance with §11, an
amount equal to the Maximum Drawing Amount of all Letters of Credit, which
amount shall be held by the Administrative Agent for the benefit of the Issuing
Lender as cash collateral for all Reimbursement Obligations.
Each
such
payment shall be made to the Administrative Agent at the Administrative Agent’s
Office in immediately available funds. Interest on any and all
amounts remaining unpaid by the Borrowers under this §3.2 at any time from the
date such amounts become due and payable (whether as stated in this §3.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Administrative Agent on demand at the rate
specified in §4.6 for overdue principal on
the Loans.
§3.3. Letter
of Credit Payments. If any draft shall
be presented or other demand for payment shall be made under any Letter of
Credit, the Issuing Lender shall notify the Borrowers and the Administrative
Agent of the date and amount of the draft presented or demand for payment and
of
the date and time when it expects to pay such draft or honor such demand for
payment. If the Borrowers fail to reimburse the Issuing Lender
through the Administrative Agent as provided in §3.2 on or before the date that
such draft is paid or other payment is made by the Issuing Lender, the Issuing
Lender may at any time thereafter notify the Administrative Agent who will
promptly notify the Revolving Credit Lenders of the amount of any such Unpaid
Reimbursement Obligation and shall specify such amount required from
each
30
of
the Revolving Credit Lenders. No later
than 3:00 p.m. (Boston time) on the Business Day next following the receipt
of such notice, each Revolving Credit Lender shall make available to the
Administrative Agent, at the Administrative Agent’s Office, in immediately
available funds, such Revolving Credit Lender’s Commitment Percentage of such
Reimbursement Obligation, together with an amount equal to the product of (a)
the weighted average, computed for the period referred to in clause (c) below,
of the Federal Funds Rate times (b) the amount equal to such Revolving
Credit Lender’s Commitment Percentage of such Unpaid Reimbursement Obligation,
times (c) a fraction, the numerator of which is the number of days that
have elapsed from and including the date the Issuing Lender paid the draft
presented for honor or otherwise made payment until the date on which such
Revolving Credit Lender’s Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to the Administrative Agent,
and
the denominator of which is 365. The responsibility of the Issuing
Lender to the Borrowers and the Revolving Credit Lenders shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
§3.4. Obligations
Absolute. The obligation of the
Borrowers to reimburse the Issuing Lender for each drawing under each Letter
of
Credit shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement under all
circumstances, including the following:
(a) any
lack of validity or enforceability of such Letter of Credit, this Credit
Agreement, or any other Loan Document;
(b) the
existence of any claim, counterclaim, setoff, defense or other right that the
Borrowers may have at any time against any beneficiary or any transferee of
such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether
in
connection with this Credit Agreement, the transactions contemplated hereby
or
by such Letter of Credit or any agreement or instrument relating thereto, or
any
unrelated transaction;
(c) any
draft, demand, certificate or other document presented under such 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; or any
loss
or delay in the transmission or otherwise of any document required in order
to
make a drawing under such Letter of Credit;
(d) any
payment by the Issuing Lender under such Letter of Credit against presentation
of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the Issuing Lender under such Letter
of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or
31
(e) any
other circumstance or happening whatsoever, whether or not similar to any of
the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Borrowers.
The
Borrowers shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to the Borrowers and, in the event of any
claim of noncompliance with the Borrowers instructions or other irregularity,
the Borrowers will immediately notify the Issuing Lender. The
Borrowers shall be conclusively deemed to have waived any such claim against
the
Issuing Lender and its correspondents unless such notice is given as
aforesaid.
§3.5. Role
of Issuing Lender. Each Lender and the
Borrowers agree that, in paying any drawing under a Letter of Credit, the
Issuing Lender shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of
any such document or the authority of the Person executing or delivering any
such document. None of the Issuing Lender, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant
or
assignee of the Issuing Lender shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval
of
Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The
Borrowers hereby assume all risks of the acts or omissions of any beneficiary
or
transferee with respect to such beneficiary’s or transferee’s use of any Letter
of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any other
agreement. None of the Issuing Lender, the Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of the Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (a) through (e) of §3.4; provided,
however, that anything in such clauses to the contrary notwithstanding,
the Borrowers may have a claim against the Issuing Lender, and the Issuing
Lender may be liable to the Borrowers, to the extent, but only to the extent,
of
any direct, as opposed to consequential or exemplary, damages suffered by
Borrowers which the Borrowers prove were caused by the Issuing Lender’s willful
misconduct or gross negligence or the Issuing Lender’s willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary
of a
sight draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Lender 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, and the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring
or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove
to be invalid or ineffective for any reason.
§3.6. Letter
of Credit Amounts. Unless otherwise
specified herein the amount of a Letter of Credit at any time shall be deemed
to
be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one or more
automatic
32
increases
in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not
such
maximum stated amount is in effect at such time.
§3.7. Applicability
of ISP. Unless otherwise expressly
agreed by the Issuing Lender and the Borrowers when a Letter of Credit is
issued, the rules of the ISP shall apply to each Letter of Credit.
§4. FEES,
PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL
LIABILITY.
§4.1. Fees. In
addition to any Fees set forth in the Fee Letter, the
Borrowers jointly and severally agree to pay all Fees in the amounts and at
the
times and otherwise in accordance with the terms specified herein or the Loan
Documents, as the case may be, including:
(a) Commitment
Fee. The Borrowers jointly and
severally agree to pay to the Administrative Agent, for the respective account
of each Revolving Credit Lender, a fee (the “Commitment Fee”) calculated
at the rate per annum equal to the Applicable Commitment Rate with respect
to
the Commitment Fee as in effect from time to time on the actual daily amount
during each calendar quarter or portion thereof from the Closing Date to the
Revolving Credit Maturity Date by which the Total Revolving Credit Commitment
minus the outstanding Letter of Credit Obligations exceeds the
outstanding amount of Revolving Credit Loans (excluding Swing Line Loans) during
such calendar quarter. The Commitment Fee shall be payable quarterly
in arrears on the first day of each calendar quarter for the immediately
preceding calendar quarter commencing on the first such date following the
date
hereof, with a final payment on the Revolving Credit Maturity Date or any
earlier date on which the Commitments shall terminate.
(b) Incremental
Commitment Fee. The Borrowers jointly and severally
agree to pay to the Administrative Agent, for the respective account of each
Revolving Credit Lender, an incremental commitment fee (the “Incremental
Commitment Fee”), which shall be in addition to the Commitment Fee, and
shall accrue at any time the outstanding amount of the Revolving Credit Loans
(excluding Swing Line Loans) plus all outstanding Letter of Credit
Obligations is less than forty percent (40%) of the Total Revolving Credit
Commitment, and shall be calculated at the rate per annum of
0.050% on the actual daily amount by which the Total Revolving Credit
Commitment exceeds the outstanding amount of Revolving Credit Loans plus
the outstanding Letter of Credit Obligations. The Incremental
Commitment Fee, if payable, shall be payable quarterly in arrears on the first
day of each calendar quarter for the immediately preceding calendar quarter
commencing on the first such date following the date hereof, with a final
payment on the Revolving Credit Maturity Date or any earlier date on which
the
Commitments shall terminate.
(c) Letter
of Credit Fees. The Borrowers shall pay a fee (the “Letter of
Credit Fee”) equal to the Applicable L/C Margin multiplied by the
Maximum Drawing Amount of each Letter of Credit. Such Letter of
Credit Fee shall be payable to the
33
Administrative
Agent for the account of the Revolving Credit Lenders, to be shared pro
rata by the Revolving Credit Lenders in accordance with their respective
Commitment Percentages. The Borrowers shall also pay a fee (the
“Issuance Fee”) to the Issuing Lender, for its own account, equal to
0.125% per annum on the Maximum Drawing Amount of all Letters of Credit issued
by such Issuing Lender, plus its customary administrative
charges. The Letter of Credit Fee and the Issuance Fee shall be
payable for the number of days each Letter of Credit is outstanding, and shall
be payable quarterly in arrears on the first day of each calendar quarter for
the immediately preceding calendar quarter, and on the Revolving Credit Maturity
Date.
§4.2. Payments.
(a) All
payments of principal, interest, Reimbursement Obligations, fees and any other
amounts due hereunder or under any of the other Loan Documents shall be made
to
the Administrative Agent, for the respective accounts of the Lenders and the
Administrative Agent, to be received at the Administrative Agent’s Office in
immediately available funds by 12:00 noon (Boston time) on any due
date.
(b) All
payments by the Borrowers hereunder and under any of the other Loan Documents
shall be made without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any nature now
or
hereafter imposed or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein unless the Borrowers are compelled
by law to make such deduction or withholding. If any such obligation
is imposed upon the Borrowers with respect to any amount payable by them
hereunder or under any of the other Loan Documents, the Borrowers will pay
to
the Administrative Agent, for the account of the Lenders or (as the case may
be)
the Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative Agent would
have received on such due date had no such obligation been imposed upon the
Borrowers. In the event that the Borrowers are required to make such
deduction or withholding as a result of the fact that a Lender is organized
outside of the United States, such Lender shall use its reasonable best efforts
to transfer its Loans to an affiliate organized within the United States if
such
transfer would have no adverse effect on such Lender or the
Loans. The Borrowers will deliver promptly to the Lender certificates
or other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrowers hereunder or under such other
Loan Document.
(c) Whenever
a payment hereunder or under any of the other Loan Documents becomes due on
a
day that is not a Business Day, the due date for such payment shall be extended
to the next succeeding Business Day, and interest shall accrue during such
extension; provided that any Interest Period for any Eurodollar Loan
which ends on a day that is not a Eurodollar Business Day shall end on the
next
succeeding Eurodollar Business Day unless the result of such extension would
be
to carry such
34
Interest
Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding Eurodollar
Business Day.
(d) Each
Lender and the Administrative Agent that is not a U.S. Person as defined in
Section 7701(a)(30) of the Code for federal income tax purposes (a “Non-U.S.
Lender”) hereby agrees that, if and to the extent it is legally able to do
so, it shall, prior to the date of the first payment by the Borrowers hereunder
to be made to such Lender or the Administrative Agent or for such Lender’s or
the Administrative Agent’s account, deliver to the Borrowers and the
Administrative Agent, as applicable, such certificates, documents or other
evidence, as and when required by the Code or Treasury Regulations issued
pursuant thereto, including (a) in the case of a Non-U.S. Lender that is a
“bank” for purposes of Section 881(c)(3)(A) of the Code, two (2) duly completed
copies of Internal Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury Regulations, or
any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Lender or the Administrative Agent establishing that with
respect to payments of principal, interest or fees hereunder it is (i) not
subject to United States federal withholding tax under the Code because such
payment is effectively connected with the conduct by such Lender or
Administrative Agent of a trade or business in the United States or (ii) totally
exempt or partially exempt from United States federal withholding tax under
a
provision of an applicable tax treaty and (b) in the case of a Non-U.S. Lender
that is not a “bank” for purposes of Section 881(c)(3)(A) of the Code, a
certificate in form and substance reasonably satisfactory to the Administrative
Agent and the Borrowers and to the effect that (i) such Non-U.S. Lender is
not a “bank” for purposes of Section 881(c)(3)(A) of the Code, is not subject to
regulatory or other legal requirements as a bank in any jurisdiction, and has
not been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any governmental authority, any application made
to
a rating agency or qualification for any exemption from any tax, securities
law
or other legal requirements, (ii) is not a ten (10) percent shareholder for
purposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled
foreign corporation receiving interest from a related person for purposes of
Section 881(c)(3)(C) of the Code, together with a properly completed Internal
Revenue Service Form W-8 or W-9, as applicable (or successor
forms). Each Lender or the Administrative Agent agrees
that it shall, promptly upon a change of its lending office or the selection
of
any additional lending office, to the extent the forms previously delivered
by
it pursuant to this section are no longer effective, and promptly upon the
Borrowers’ or the Administrative Agent’s reasonable request after the occurrence
of any other event (including the passage of time) requiring the delivery of
a
Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in replacement
of
the forms previously delivered, deliver to the Borrowers and the Administrative
Agent, as applicable, if and to the extent it is properly entitled to do so,
a
properly completed and executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9,
as
applicable (or any successor forms thereto).
§4.3. Computations. All
computations of interest on Base Rate Loans shall, unless otherwise expressly
provided herein, be based on a 365-day year (or 366-day year, as applicable)
and
paid for the actual number of days elapsed. All computations of
interest on Eurodollar Loans and of Commitment Fees, Letter of Credit Fees
or
other fees shall, unless
35
otherwise
expressly provided herein, be based on a
360-day year and paid for the actual number of days elapsed.
§4.4. Capital
Adequacy. If any present or future law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental authority
with appropriate jurisdiction affects the amount of capital required or expected
to be maintained by any Lender or the Administrative Agent or any corporation
controlling such Lender or the Administrative Agent, and such Lender or the
Administrative Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of such Lender’s or
the Administrative Agent’s Loans, Letter of Credit participations or Letters of
Credit, or commitment with respect thereto, then such Lender or the
Administrative Agent may notify the Borrowers of such fact. To the
extent that the costs of such increased capital requirements are not reflected
in the Base Rate (if relating to Base Rate Loans), the Borrowers and such Lender
or (as the case may be) the Administrative Agent shall thereafter attempt to
negotiate in good faith, within thirty (30) days of the day on which the
Borrowers receive such notice, an adjustment payable hereunder that will
adequately compensate such Lender or the Administrative Agent in light of these
circumstances. If the Borrowers and such Lender or the Administrative
Agent are unable to agree to such adjustment within thirty (30) days of the
date
on which the Borrowers receive such notice, then commencing on the date of
such
notice (but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Lender’s or the Administrative Agent’s reasonable determination, provide
adequate compensation. Each Lender and the Administrative Agent shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
§4.5. Certificate. A
certificate setting forth any additional amounts payable pursuant to §4.4 and a
reasonable explanation of such amounts which are due, submitted by any Lender
or
the Administrative Agent to the Borrowers, shall be conclusive, absent manifest
error, that such amounts are due and owing.
§4.6. Interest
After Default.
(a) Interest
on Overdue Amounts.
(i) Overdue
principal on the Loans shall bear interest compounded monthly and payable on
demand at a rate per annum equal to the rate of interest (including the
applicable margin as set forth in the Pricing Table) then applicable thereto
(or, if no rate of interest is then applicable thereto, the Base Rate)
plus two (2) percentage points (2.00%) until such amount shall be paid
in full (after, as well as before, judgment).
(ii) If
any amount (other than principal of any Loan) payable by the Borrower under
any
Loan Document is not paid when due, then, upon the request of the Required
Lenders, such amounts shall thereafter bear interest compounded monthly and
payable on demand at a rate per annum equal to (A) with respect to Obligations
other than Letter of Credit Fees, the rate of interest (including the applicable
margin as set forth in the Pricing Table) then applicable thereto (or,
if
36
no
rate of interest is then applicable thereto, the
Base Rate) plus two (2) percentage points (2.00%) and (B) with respect
to Letter of Credit Fees, the applicable margin applicable to Letter of Credit
Fees as set forth in the Pricing Table plus two (2) percentage points
(2.00%), in each case until such amount is paid in full (after, as well as
before judgment).
(b) Amounts
Not Overdue. While any Event of Default exists, at the
request of the Required Lenders, (a) the principal of the Loans not overdue
shall bear interest at a rate per annum equal to the rate of interest (including
the applicable margin as set forth in the Pricing Table) otherwise applicable
thereto plus two percentage points (2.00%), and (b) the applicable
margin applicable to Letter of Credit Fees as set forth in the Pricing Table
shall be equal to the Letter of Credit Fee otherwise applicable thereto
plus two percentage points (2.00%).
§4.7. Interest
Limitation. Notwithstanding any other term of this
Credit Agreement or any other document referred to herein, the maximum amount
of
interest which may be charged to or collected from any person liable hereunder
by any Lender shall be absolutely limited to, and shall in no event exceed,
the
maximum amount of interest which could lawfully be charged or collected under
applicable law (including, to the extent applicable, the provisions of Section
5197 of the Revised Statutes of the United States of America, as amended, 12
U.S.C. Section 85, as amended), so that the maximum of all amounts constituting
interest under applicable law, howsoever computed, shall never exceed as to
any
Person liable therefor such lawful maximum, and any term of this Credit
Agreement, the Letter of Credit Applications, or any other document referred
to
herein or therein which could be construed as providing for interest in excess
of such lawful maximum shall be and hereby is made expressly subject to and
modified by the provisions of this paragraph.
§4.8. Election
of Eurodollar Rate; Notice of Election; Interest Periods; Minimum
Amounts.
(a) At
the Borrowers’ option, so long as no Default or Event of Default has occurred
and is then continuing, the Borrowers may (i) elect to convert any Loan
which is a Base Rate Loan or a portion thereof to a Eurodollar Loan,
(ii) at the time of any Loan and Letter of Credit Request, specify that a
requested Loan shall be a Eurodollar Loan, or (iii) upon expiration of the
applicable Interest Period, elect to maintain an existing Eurodollar Loan as
such, provided that the Borrowers give notice to the Administrative Agent
pursuant to §4.8(b) hereof. Upon determining any Eurodollar Rate, the
Administrative Agent shall forthwith provide notice thereof to the Borrowers
and
the Lenders, and each such notice to the Borrowers and the Lenders shall be
considered primafacie correct and binding, absent manifest
error.
(b) Three
(3) Eurodollar Business Days prior to the making of any Eurodollar Loan or
the
conversion of any Base Rate Loan to a Eurodollar Loan, or, in the case of an
outstanding Eurodollar Loan, the expiration date of the applicable Interest
Period, the Borrowers shall give telephonic notice (confirmed by telecopy on
the
same Eurodollar Business Day) to the Administrative Agent not later than
11:00 a.m. (Boston time) of their election pursuant to
§4.8(a). Each such notice delivered to the
Administrative
37
Agent
shall specify the aggregate principal amount of
the Loans to be borrowed or maintained as or converted to Eurodollar Loans
and
the requested duration of the Interest Period that will be applicable to such
Eurodollar Loan, and shall be irrevocable and binding upon the
Borrowers. If the Borrowers shall fail to give the Administrative
Agent notice of their election hereunder together with all of the other
information required by this §4.8(b) with respect to any Loan, such Loan shall
be deemed a Base Rate Loan. In the event that the Borrowers fail to
provide any such notice with respect to the continuation of any Eurodollar
Loan
as such, then such Eurodollar Loan shall be automatically converted to a Base
Rate Loan at the end of the then expiring Interest Period relating
thereto.
(c) Notwithstanding
anything herein to the contrary, the Borrowers may not specify an Interest
Period that would extend beyond the Revolving Credit Maturity Date.
(d) All
Revolving Credit Loans shall be in a minimum amount of $1,000,000 or integral
multiples of $100,000 in excess thereof. In no event shall the
Borrowers have more than ten (10) different maturities of Eurodollar Loans
outstanding at any time.
§4.9. Eurodollar
Indemnity. The Borrowers agree to indemnify the Lenders
and the Administrative Agent and to hold them harmless from and
against any loss, cost or expenses (including loss of anticipated profits)
that
the Lenders and the Administrative Agent may sustain or incur as a consequence
of (a) default by the Borrowers in payment of the principal amount of or any
interest on any Eurodollar Loans as and when due and payable, including any
such
loss or expense arising from interest or fees payable by any Lender or the
Administrative Agent to lenders of funds obtained by it in order to maintain
its
Eurodollar Loans, (b) a prepayment of principal on any Eurodollar Loan,
including prepayments which are the result of acceleration by the Lenders,
or
(c) default by the Borrowers in making a borrowing or conversion after the
Borrowers have given (or are deemed to have given) notice pursuant to §2.5 or
§4.8, the making of any payment of a Eurodollar Loan or the making of any
conversion of any such Eurodollar Loan to a Base Rate Loan on a day that is
not
the last day of the applicable Interest Period with respect thereto, including
interest or fees payable by any Lender to lenders of funds obtained by it in
order to maintain any such Loans or upon a transfer of interest in Eurodollar
Rate Loans to any new Lender pursuant to §2.11.
§4.10. Illegality;
Inability to Determine Eurodollar Rate. Notwithstanding
any other provision of this Credit Agreement, if (a) the introduction of, any
change in, or any change in the interpretation of, any law or regulation
applicable to the Administrative Agent or any Lender shall make it unlawful,
or
any central bank or other governmental authority having jurisdiction thereof
shall assert that it is unlawful, for any Lender or the Administrative Agent
to
perform its obligations in respect of any Eurodollar Loans, or (b) if any
Lender or the Administrative Agent shall reasonably determine with respect
to
Eurodollar Loans that (i) by reason of circumstances affecting any Eurodollar
interbank market, adequate and reasonable methods do not exist for ascertaining
the Eurodollar Rate which would otherwise be applicable during any Interest
Period, or (ii) deposits of Dollars in the relevant amount for the relevant
Interest Period are not available to such Lender or the Administrative Agent
in
any Eurodollar interbank market, or (iii) the Eurodollar Rate does not or will
not accurately reflect the cost to such Lender or the Administrative Agent
of
obtaining or maintaining the applicable Eurodollar
38
Loans during
any Interest Period, then
such Lender or the Administrative Agent shall promptly give telephonic, telex
or
cable notice of such determination to the Borrowers (which notice shall be
conclusive and binding upon the Borrowers). Upon such notification by
such Lender or the Administrative Agent, the obligation of such Lender or the
Administrative Agent to make Eurodollar Loans shall be suspended until such
Lender or the Administrative Agent determines that such circumstances no longer
exist, and the outstanding Eurodollar Loans shall continue to bear interest
at
the applicable rate based on the Eurodollar Rate until the end of the applicable
Interest Period, and thereafter shall be deemed converted to Base Rate Loans
in
equal principal amounts.
§4.11. Additional
Costs, Etc.
(a) Increased
Costs Generally. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at
any
time or from time to time hereafter made upon or otherwise issued to any Lender
by any central bank or other fiscal, monetary or other authority (whether or
not
having the force of law), shall impose on any Lender any tax, levy, impost,
duty, charge fees, deduction or withholdings of any nature or requirements
with
respect to this Credit Agreement, the other Loan Documents, the Loans, such
Lender’s Commitment, the Letters of Credit or any class of loans or commitments
or letters of credit of which any of the Loans, the Commitments or the Letters
of Credit forms a part, and the result of any of the foregoing is:
(i) to
increase the cost to such Lender of making, funding, issuing, renewing,
extending or maintaining the Loans, such Lender’s Commitment, or the Letters of
Credit; or
(ii) to
reduce the amount of principal, interest or other amount payable to such Lender
hereunder on account of such Lender’s Commitment, the Loans, or drawings under
the Letters of Credit, or
(iii) to
require such Lender to make any payment or to forego any interest or other
sum
payable hereunder, the amount of which payment or foregone interest or other
sum
is calculated by reference to the gross amount of any sum receivable or deemed
received by such Lender from the Borrowers hereunder,
then,
and
in each such case, the Borrowers will, upon demand made by such Lender at any
time and from time to time and as often as the occasion therefor may arise,
pay
to such Lender such additional amounts as will be sufficient to compensate
such
Lender for such additional cost, reduction, payment or foregone interest or
other sum (after such Lender shall have allocated the same fairly and equitably
among all customers of any class generally affected thereby).
(b) Reserves
on Eurodollar Loans. The Borrowers shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to
liabilities or
39
assets
consisting of or including Eurocurrency funds
or deposits (currently known as “Eurocurrency liabilities”), additional interest
on the unpaid principal amount of each Eurodollar Loan equal to the actual
costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall
be
due and payable on each date on which interest is payable on such Loan,
provided the Borrowers shall have received at least 10 days’ prior notice
(with a copy to the Administrative Agent) of such additional interest from
such
Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.
§4.12. Replacement
of Lenders. If any Lender (an “Affected Lender”)
(i) makes demand upon the Borrowers for (or if the Borrowers are otherwise
required to pay) amounts pursuant to §§4.4 or 4.11 or (ii) is unable to make or
maintain Eurodollar Loans as a result of a condition described in §4.10, the
Borrowers may, within 90 days of receipt of such demand or notice (or the
occurrence of such other event causing the Borrowers to be required to pay
such
compensation or causing §4.10 to be applicable), by notice in writing to the
Administrative Agent and such Affected Lender (a “Replacement Notice”)
(A) request the Affected Lender to cooperate with the Borrowers in obtaining
a
replacement bank satisfactory to the Administrative Agent and the Borrowers
(the
“Replacement Lender”); (B) request the non-Affected Lenders to acquire
and assume all of the Affected Lender’s Loans and Commitment, as provided
herein, but none of such Lenders shall be under an obligation to do so; or
(C)
designate a Replacement Lender reasonably satisfactory to the Administrative
Agent. If any satisfactory Replacement Lender shall be obtained,
and/or any of the non-Affected Lenders shall agree to acquire and assume all
of
the Affected Lender’s Loans and Commitment, then such Affected Lender shall, so
long as no Event of Default shall have occurred and be continuing, assign,
in
accordance with §16, all of its Commitment, Loans and other rights and
obligations under this Credit Agreement and all other Loan Documents to such
Replacement Lender or non-Affected Lenders, as the case may be, in exchange
for
payment of the principal amount so assigned and all interest and fees accrued
on
the amount so assigned, plus all other Obligations then due and payable to
the
Affected Lender; provided, however, that (i) such assignment shall
be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such Replacement
Lender and/or non-Affected Lenders, as the case may be, and (ii) prior to
any such assignment, the Borrowers shall have paid to such Affected Lender
all
amounts properly demanded and unreimbursed under §§4.4, 4.9, 4.10 and
4.11. Upon the effective date of such assignment, and such
Replacement Lender and/or non-Affected Lenders shall become a “Lender” for all
purposes under this Credit Agreement and the other Loan Documents.
§4.13. Concerning
Joint and Several Liability of the Borrowers.
(a) Each
Borrower accepts joint and several liability for the Obligations of all of
the
Borrowers hereunder and under the other Loan Documents in consideration of
the
financial accommodations to be provided by the Administrative Agent and the
Lenders under this Credit Agreement, for the mutual benefit, directly and
indirectly, of each Borrower and in consideration of the undertakings of each
other Borrower to accept joint and several liability for the
Obligations.
40
(b) Each
Borrower, jointly and severally, hereby irrevocably and unconditionally accepts,
not merely as a surety but also as a co-debtor, joint and several liability
with
the other Borrowers with respect to the payment and performance of all of the
Obligations (including, without limitation, any Obligations arising under this
§4.13), it being the intention of the parties hereto that all of the Obligations
shall be the joint and several Obligations of each Borrower without preferences
or distinction among them.
(c) If
and to the extent that any of the Borrowers shall fail to make any payment
with
respect to any of the Obligations as and when due or to perform any of the
Obligations in accordance with the terms thereof, then in each such event the
other Borrowers will make such payment with respect to, or perform, such
Obligation.
(d) The
Obligations of each Borrower under the provisions of this §4.13 constitute full
recourse Obligations of each Borrower enforceable against each such Borrower
to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Credit Agreement or any other circumstance
whatsoever.
(e) Except
as otherwise expressly provided in this Credit Agreement, each Borrower, to
the
fullest extent permitted by applicable law, hereby waives notice of acceptance
of its joint and several liability, notice of any Loans made under this Credit
Agreement, notice of any action at any time taken or omitted by the
Administrative Agent or the Lenders under or in respect of any of the
Obligations, and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this
Credit Agreement. Each Borrower, to the fullest extent permitted by
applicable law, hereby waives all defenses which may be available by virtue
of
any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshaling of assets of the Borrowers and
any
other Person primarily or secondarily liable with respect to any of the
Obligations and all suretyship defenses generally. Each Borrower, to
the fullest extent permitted by applicable law, hereby assents to, and waives
notice of, any extension or postponement of the time for the payment of any
of
the Obligations, the acceptance of any payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Lenders at any time or times in respect of any default
by
any of the Borrowers in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other indulgences
whatsoever by the Lenders in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times,
of
any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers. Without
limiting the generality of the foregoing, each Borrower assents to any other
action or delay in acting or failure to act on the part of the Lenders with
respect to the failure by any of the Borrowers to comply with any of its
respective Obligations, including, without limitation, any failure strictly
or
diligently to assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder, which might, but for the provisions
of this §4.13, afford grounds for terminating, discharging or relieving any of
the Borrowers, in whole or in part, from any of its Obligations under this
§4.13, it being the intention of each Borrower that, so long as any
41
of
the Obligations hereunder remain unsatisfied, the
Obligations of such Borrowers under this §4.13 shall not be discharged except by
performance and then only to the extent of such performance. The
Obligations of each Borrower under this §4.13 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, re-construction or similar proceeding with respect to any of the
Borrowers, the Administrative Agent or the Lenders. The joint and
several liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any
of
the Borrowers, the Administrative Agent or the Lenders.
(f) To
the extent any Borrower makes a payment hereunder in excess of the aggregate
amount of the benefit received by such Borrower in respect of the extensions
of
credit under the Credit Agreement (the “Benefit Amount”), then such
Borrower, after the payment in full, in cash, of all of the Obligations, shall
be entitled to recover from each other Borrower such excess payment, pro
rata, in accordance with the ratio of the Benefit Amount received by each
such other Borrower to the total Benefit Amount received by all Borrowers,
and
the right to such recovery shall be deemed to be an asset and property of such
Borrower so funding; provided, that each Borrower hereby agrees that it
will not enforce any of its rights of contribution or subrogation against the
other Borrowers with respect to any liability incurred by it hereunder or under
any of the other Loan Documents, any payments made by it to any of the Lenders
or the Administrative Agent with respect to any of the Obligations or any
collateral security therefor until such time as all of the Obligations have
been
irrevocably paid in full in cash. Any claim which any Borrower may
have against any other Borrower with respect to any payments to the Lenders
or
the Administrative Agent hereunder or under any other Loan Document are hereby
expressly made subordinate and junior in right of payment, without limitation
as
to any increases in the Obligations arising hereunder or thereunder, to the
prior payment in full of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its
debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any other
Borrower therefor.
(g) Each
Borrower hereby agrees that the payment of any amounts due with respect to
the
Indebtedness owing by any Borrower to any other Borrower is hereby subordinated
to the prior payment in full in cash of the Obligations. Each
Borrower hereby agrees that after the occurrence and during the continuance
of
any Default or Event of Default, such Borrower will not demand, ▇▇▇ for or
otherwise attempt to collect any such Indebtedness of any other Borrower owing
to such Borrower until the Obligations shall have been paid in full in
cash. If, notwithstanding the foregoing sentence, such Borrower shall
collect, enforce or receive any amounts in respect of such Indebtedness before
payment in full in cash of the Obligations, such amounts shall be collected,
enforced, received by such Borrower as trustee for the Administrative Agent
and
be paid over to the Administrative Agent for the pro rata accounts of
the Lenders (in accordance with each such Lender’s Commitment Percentage) to be
applied to repay (or be held as security for the repayment of) the
Obligations.
42
(h) The
provisions of this §4.13 are made for the benefit of the Administrative Agent
and the Lenders and their successors and assigns, and may be enforced in good
faith by them from time to time against any or all of the Borrowers as often
as
the occasion therefor may arise and without requirement on the part of the
Administrative Agent or the Lenders first to marshal any of their claims or
to
exercise any of their rights against any other Borrower or to exhaust any
remedies available to them against any other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder or
to
elect any other remedy. The provisions of this §4.13 shall remain in
effect until all of the Obligations shall have been paid in full or otherwise
fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Administrative Agent or the Lenders upon the
insolvency, bankruptcy or reorganization of any of the Borrowers or is repaid
in
good faith settlement of a pending or threatened avoidance claim, or otherwise,
the provisions of this §4.13 will forthwith be reinstated in effect, as though
such payment had not been made.
(i) It
is the intention and agreement of the Borrowers and the Lenders that the
obligations of the Borrowers under this Credit Agreement shall be valid and
enforceable against the Borrowers to the maximum extent permitted by applicable
law. Accordingly, if any provision of this Credit Agreement creating
any obligation of the Borrowers in favor of the Lenders shall be declared to
be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Borrowers and the Lenders that any balance of
the
obligation created by such provision and all other obligations of the Borrowers
to the Lenders created by other provisions of this Credit Agreement shall remain
valid and enforceable. Likewise, if by final order a court of
competent jurisdiction shall declare any sums which the Lenders may be otherwise
entitled to collect from the Borrowers under this Credit Agreement to be in
excess of those permitted under any law (including any federal or state
fraudulent conveyance or like statute or rule of law) applicable to the
Borrowers’ obligations under this Credit Agreement, it is the stated intention
and agreement of the Borrowers and the Lenders that all sums not in excess
of
those permitted under such applicable law shall remain fully collectible by
the
Lenders from the Borrowers.
(j) Each
of the Borrowers waives any rights and defenses that are or may become available
to such Borrower by reason of Sections 2787 to 2855, inclusive, 2899 and 3433
of
the California Civil Code.
(k) As
provided below, this Credit Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. The foregoing
waivers and the provisions hereinafter set forth in this Agreement which pertain
to California law are included solely out of an abundance of caution, and shall
not be construed to mean that any of the above referenced provisions of
California law are in any way applicable to this Credit Agreement or the
Obligations.
43
§5. REPRESENTATIONS
AND WARRANTIES.
The
Borrowers jointly and severally represent and warrant to the Lenders that on
and
as of the date of this Credit Agreement, each Drawdown Date, and the date of
issuance of any Letter of Credit (with any disclosure on a schedule pursuant
to
this §5 applying to all relevant representations and warranties, regardless of
whether such schedule is referenced in each relevant
representation):
§5.1. Corporate
Authority.
(a) Incorporation;
Good Standing. Each Borrower
(i) is a corporation, partnership, limited liability company or similar
business entity duly organized, validly existing and in good standing or in
current status under the laws of its respective state of organization,
(ii) has all requisite corporate (or equivalent company or partnership)
power to own its property and conduct its business as now conducted and as
presently contemplated, and (iii) is in good standing as a foreign
corporation, partnership, limited liability company or similar business entity
and is duly authorized to do business in each jurisdiction in which its property
or business as presently conducted or contemplated makes such qualification
necessary except where a failure to be in good standing or so qualified would
not have a Material Adverse Effect.
(b) Authorization. The
execution, delivery and performance of the Loan Documents and the transactions
contemplated hereby and thereby (i) are within the corporate (or equivalent
company or partnership) authority of each Borrower, (ii) have been duly
authorized by all necessary corporate (or equivalent company or partnership)
proceedings, (iii) do not conflict with or result in any material breach or
contravention of any provision of law, statute, rule or regulation to which
any
Borrower is subject or any judgment, order, writ, injunction, license or permit
applicable to any Borrower so as to materially adversely affect the assets,
business or any activity of the Borrowers, and (iv) do not conflict with
any provision of the corporate charter or bylaws (or the equivalent company
or
partnership constitutive documents) of any Borrower or any agreement or other
instrument binding upon them, including, without limitation, the Permitted
Debt
Documents.
(c) Enforceability. The
execution, delivery and performance of the Loan Documents will result in valid
and legally binding obligations of the Borrowers enforceable against each in
accordance with the respective terms and provisions hereof and thereof, except
as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of
creditors’ rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
§5.2. Governmental
Approvals. The execution, delivery and performance by
the Borrowers of the Loan Documents and the transactions contemplated hereby
and
thereby do not require any approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
44
§5.3. Title
to Properties; Leases. The Borrowers own all of the
assets reflected in the consolidated balance sheets as at the Balance Sheet
Date
or acquired since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business since that date), subject to
no
mortgages, capitalized leases, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Liens.
§5.4. Financial
Statements; Solvency.
(a) There
has been furnished to the Lenders (i) audited consolidated financial statements
of the Borrowers dated the Balance Sheet Date and (ii) consolidated financial
statements of the Borrowers dated the Interim Balance Sheet
Date. Said financial statements have been prepared in accordance with
GAAP and fairly present in all material respects the financial condition of
the
Borrowers on a consolidated basis, as at the close of business on the respective
dates thereof and the results of operations for the respective periods then
ended. There are no contingent liabilities of the Borrowers involving
material amounts, known to the officers of the Borrowers, which have not been
disclosed in said balance sheets and the related notes thereto or otherwise
in
writing to the Lenders.
(b) The
Borrowers on a consolidated basis (both before and after giving effect to the
transactions contemplated by this Credit Agreement) are and will be solvent
(i.e., they have assets having a fair value in excess of the amount required
to
pay their probable liabilities on their existing debts as they become absolute
and matured) and have, and expect to have, the ability to pay their debts from
time to time incurred in connection therewith as such debts mature.
§5.5. No
Material Changes, Etc. Since the Interim Balance Sheet
Date, no Material Adverse Effect has occurred with respect to the financial
condition or businesses of the Borrowers, taken as a whole, as shown on or
reflected in the consolidated balance sheet of the Borrowers as of the Interim
Balance Sheet Date, or the consolidated statement of income for the fiscal
year
then ended. Since the Interim Balance Sheet Date, there have
not been any Restricted Payments other than as permitted by §7.6
hereof.
§5.6. Permits,
Franchises, Patents, Copyrights, Etc. Each Borrower
possess all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct
of
their businesses substantially as now conducted without known conflict with
any
rights of others.
§5.7. Litigation. Except
as shown on Schedules 5.7 and 5.16 hereto, there are no actions,
suits, proceedings or investigations of any kind pending or, to the knowledge
of
any Borrower, threatened against any Borrower before any court, tribunal or
administrative agency or board which, if adversely determined, might, either
in
any individual case or in the aggregate, have a Material Adverse
Effect.
§5.8. No
Materially Adverse Contracts, Etc. No Borrower is
subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the Borrowers’
officers has or is expected in the future to have a Material Adverse
Effect. No Borrower is a party to any contract or agreement which in
the judgment of the Borrowers’ officers has or is expected to have
a
45
Material
Adverse Effect, except as otherwise
reflected in adequate reserves.
§5.9. Compliance
With Other Instruments, Laws, Etc. No Borrower is
violating any provision of its charter documents or by-laws (or the equivalent
company or partnership constitutive documents) or any agreement or instrument
by
which any of them may be subject or by which any of them or any of their
properties may be bound or any decree, order, judgment, or any statute, license,
rule or regulation, in a manner which could result in the imposition of
substantial penalties or have a Material Adverse Effect.
§5.10. Tax
Status. Each Borrower has made or filed all federal and
state income and all other tax returns, reports and declarations required by
any
jurisdiction to which any of them is subject (unless and only to the extent
that
such Borrower has set aside on its books provisions reasonably adequate for
the
payment of all unpaid and unreported taxes); and have paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent to
the
periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrowers know of no
basis for any such claim.
§5.11. No
Event of Default. No Default or Event of Default has
occurred and is continuing as of the date of this Credit Agreement.
§5.12. Holding
Company and Investment Company Acts. No Borrower nor any
of its Subsidiaries is a “public utility”, as that term is defined under the
Federal Power Act, as amended, and the regulations of the Federal Energy
Regulatory Commission (“FERC”) promulgated thereunder. No
Borrower nor any of its Subsidiaries (i) is subject to any of the accounting
or
cost-allocation requirements of the Public Utility Holding Company Act of 2005,
or the regulations or orders of the FERC promulgated thereunder or (ii) is
or is
required to be registered as an “investment company” under the Investment
Company Act of 1940.
§5.13. Absence
of Financing Statements, Etc. Other than Permitted
Liens, there is no financing statement, security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded with any filing
records, registry, or other public office, which purports to cover, affect
or
give notice of any present or possible future lien on, or security interest
in,
any assets or property of any Borrower, or any rights relating
thereto.
§5.14. Employee
Benefit Plans.
(a) Each
Employee Benefit Plan and each Guaranteed Pension Plan has been maintained
and
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by §412 of
ERISA. Each Borrower has
46
heretofore
delivered to the Administrative Agent the
most recently completed annual report, Form 5500, with all required attachments,
and actuarial statement required to be submitted under §103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
(b) No
Employee Benefit Plan, which is an employee welfare benefit plan within the
meaning of §3(1) or §3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. A Borrower may
terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of such
Borrower without liability to any Person other than for claims arising prior
to
termination.
(c) Each
contribution required to be made to a Guaranteed Pension Plan, whether required
to be made to avoid the incurrence of an accumulated funding deficiency, the
notice or lien provisions of §302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed Pension
Plan, and no Borrower nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan pursuant
to §307 of ERISA or §401(a)(29) of the Code. No liability to the PBGC
(other than required insurance premiums, all of which have been paid) has been
incurred by any Borrower or any ERISA Affiliate with respect to any Guaranteed
Pension Plan and there has not been any ERISA Reportable Event (other than
an
ERISA Reportable Event as to which the requirement of 30 days notice has been
waived), or any other event or condition which presents a material risk of
termination of any Guaranteed Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in each case occurred within
twelve months of the date of this representation), and on the actuarial methods
and assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of §4001 of ERISA did
not exceed the aggregate value of the assets of all such Guaranteed Pension
Plans, disregarding for this purpose the benefit liabilities and assets of
any
Guaranteed Pension Plan with assets in excess of benefit
liabilities.
(d) No
Borrower nor any ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under §4201 of ERISA or as a
result of a sale of assets described in §4204 of ERISA. No Borrower
nor any ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of §4241 or §4245 of
ERISA or is at risk of entering reorganization or becoming insolvent, or that
any Multiemployer Plan intends to terminate or has been terminated under §4041A
of ERISA.
§5.15. Use
of Proceeds.
§5.15.1. General. The
proceeds of the Loans shall be used solely as
follows: (a) to refinance Indebtedness of the Borrowers
under the Existing Credit Agreement on the Closing Date; (b) to repay,
repurchase or refinance in whole or in part Indebtedness
47
of
the Borrowers permitted pursuant to §7.1 in
accordance with the provisions of §§7.1 and 7.11, (c) to finance acquisitions
permitted pursuant to §7.4; and (d) for capital expenditures, working capital,
Letters of Credit, and general corporate purposes.
§5.15.2. Regulations
U and X. No portion of any Loan is to be used, and no
portion of any Letter of Credit is to be obtained, for the purpose of purchasing
or carrying any “margin security” or “margin stock” as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System,
12
C.F.R. Parts 221 and 224.
§5.15.3. Ineligible
Securities. No portion of the proceeds of any Loans is
to be used, and no portion of any Letter of Credit is to be obtained, for the
purpose of knowingly purchasing, or providing credit support for the purchase
of, during the underwriting or placement period or within thirty (30) days
thereafter, any Ineligible Securities underwritten or privately placed by a
Financial Affiliate.
§5.16. Environmental
Compliance. The Borrowers have taken all necessary steps
to investigate the past and present condition and usage of the Real Properties
and the operations conducted thereon and, based upon such diligent
investigation, have determined that, except as shown on Schedule
5.16:
(a) none
of the Borrowers or Excluded Subsidiaries, nor any operator of their properties,
is in violation, or alleged violation, of any judgment, decree, order, law,
permit, license, rule or regulation pertaining to environmental matters,
including without limitation, those arising under RCRA, CERCLA, the Superfund
Amendments and Reauthorization Act of 1986 (“▇▇▇▇”), the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local or federal or provincial statute, regulation, ordinance, order or
decree relating to health, safety or the environment (the “Environmental Laws”),
which violation would have a Material Adverse Effect; and
(b) except
where it would not have a Material Adverse Effect, (i) no portion of the Real
Property has been used for the handling, processing, storage or disposal of
Hazardous Substances and no underground tank or other underground storage
receptacle for Hazardous Substances is located on such properties; (ii) in
the
course of any activities conducted by the Borrowers, or, to the Borrowers’
knowledge by any other operators of the Real Property, no Hazardous Substances
have been generated or are being used on such properties; and (iii) there have
been no unpermitted Releases or threatened Releases of Hazardous Substances
on,
upon, into or from the Real Property.
§5.17. Transactions
with Affiliates. Except as disclosed in Schedule
5.17 or filings made by the Borrowers under the Securities Exchange Act of
1934 prior to the Closing Date, and except for arm’s length transactions
pursuant to which a Borrower makes payments in the ordinary course of business
upon terms no less favorable than such Borrower could obtain from third parties,
none of the officers, directors, or employees of any Borrower is presently
a
party to any transaction with another Borrower (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the
48
knowledge
of any Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
§5.18. Subsidiaries. Schedule
2 (as updated from time to time pursuant to §6.16) sets forth a complete and
accurate list of the Subsidiaries of the Parent, including the name of each
Subsidiary, the location of its chief executive office, and its jurisdiction
of
incorporation, together with the number of authorized and outstanding shares
of
each Subsidiary. Each Subsidiary listed on Schedule 2 is
(a) wholly owned by the Parent (except as noted in such Schedule)
and (b) is a Borrower hereunder (except the Excluded
Subsidiaries). The Parent has good and marketable title to all of the
shares it purports to own of the stock of each such Subsidiary, and each other
Borrower has good and marketable title to all of the shares it purports to
own
of the stock of such Subsidiary, free and clear in each case of any
lien. All such shares have been duly issued and are fully paid and
non-assessable.
§5.19. True
Copies of Charter and Other Documents. Each Borrower has
furnished the Administrative Agent copies, in each case true and complete as
of
the Closing Date, of its (a) charter and other constitutive documents and
(b) by-laws (or equivalent constitutive documents), each including any
amendments thereto.
§5.20. Disclosure. Neither
this Credit Agreement, nor any of the other Loan Documents, nor any document
or
information furnished by the Borrowers in connection therewith contains any
untrue statement of a material fact or omits to state a material fact (known
to
any Borrower in the case of any document or information not furnished by the
Borrowers) necessary in order to make the statements herein or therein not
misleading. There is no fact known to any Borrower which materially
adversely affects, or which is reasonably likely in the future to materially
adversely affect, the business, assets, or financial condition of any Borrower,
exclusive of effects resulting from changes in general economic conditions,
legal standards or regulatory conditions.
§5.21. Capitalization. As
of June 30, 2007, the authorized Capital Stock of the Parent consists of (i)
150,000,000 shares of common stock (par value $0.01 per share) of which
81,962,379 shares were outstanding as of such date, and (ii) 7,500,000 shares
of
preferred stock of which none were outstanding as of such date. All
of such outstanding shares are fully paid and non-assessable. In
addition, as of June 30, 2007, the board of directors of the Parent has duly
reserved (A) 49,704 shares of the Parent’s common stock for issuance pursuant to
outstanding warrants, (B) 6,108,583 shares of the Parent’s common stock for
issuance pursuant to outstanding options, (C) 2,574,988 shares of the Parent’s
common stock for issuance upon the exercise of employee stock options or on
satisfaction of conditions in restricted stock unit awards, both of which are
available to be granted pursuant to the Parent’s equity incentive plans, (D)
245,993 shares of the Parent’s common stock available to be granted pursuant to
the Parent’s warrant plans, (E) 5,882,354 shares of the Parent’s common stock
for issuance upon the conversion of the Permitted Debt Notes, (F) 4,872 shares
of the Parent’s common stock issued and restricted under a restricted stock plan
for general issuance and (G) subject to clause (C) above, 10,531 shares of
the
Parent’s common stock available to be granted under restricted stock
plans.
49
§6. AFFIRMATIVE
COVENANTS OF THE BORROWERS.
The
Borrowers covenant and agree that, so long as any Obligation is outstanding
or
any Lender has any obligation to make any Loans or the Administrative Agent
has
any obligation to issue, extend or renew any Letters of Credit:
§6.1.Punctual
Payment. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, fees and other amounts provided for in this Credit Agreement and
the other Loan Documents, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
§6.2.Maintenance
of Offices. The Parent will maintain its chief executive
offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and
each Subsidiary will maintain its chief executive offices at the location set
forth on Schedule 2, or at such other place in the United States as
the Borrowers shall designate upon 30 days’ prior written notice to the
Administrative Agent.
§6.3.Records
and Accounts. Each Borrower will (i) keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with generally accepted accounting principles,
(ii) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of its
properties, contingencies, and other reserves, and (iii) at all times
engage the Accountants as the independent certified public accountants of the
Borrowers.
§▇.▇.▇▇▇▇▇▇▇▇▇
Statements, Certificates and
Information». The Borrowers will
deliver to the Lenders:
(a) within
five (5) days after the filing with the Securities and Exchange Commission
of
the Parent’s Annual Report on Form 10-K with respect to each fiscal year (and in
any event within 100 days after the end of such fiscal year), the consolidated
and consolidating balance sheets of the Borrowers as at the end of such year,
statements of cash flows, and the related consolidated and consolidating
statements of operations, each setting forth in comparative form the figures
for
the previous fiscal year, all such consolidated and consolidating financial
statements to be in reasonable detail, prepared in accordance with GAAP and,
with respect to the consolidated financial statements, certified by the
Accountants;
(b) within
five (5) days after the filing with the Securities and Exchange Commission
of
the Parent’s Quarterly Report on Form 10-Q with respect to the first three
fiscal quarters of each fiscal year (and in any event within 55 days after
the
end of each such fiscal quarter), copies of the consolidated and consolidating
balance sheets and statement of operations of the Borrowers as at the end of
such quarter, subject to year end adjustments, and the related statement of
cash
flows, all in reasonable detail and prepared in accordance with GAAP, with
a
certification by the principal financial or accounting officer of the Borrowers
(the “CFO”) that the consolidated financial
50
statements
are prepared in accordance with GAAP and
fairly present the consolidated financial condition of the Borrowers as at
the
close of business on the date thereof and the results of operations for the
period then ended;
(c) simultaneously
with the delivery of the financial statements referred to in (a) and (b) above,
a statement in the form of Exhibit B hereto (the
“ComplianceCertificate”) certified by the CFO that the Borrowers
are in compliance with the covenants contained in §8 hereof as of the end of the
applicable period setting forth in reasonable detail computations evidencing
such compliance, providedthat if the Borrowers shall at the time
of issuance of such certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrowers shall include in such certificate
or
otherwise deliver forthwith to the Lenders a certificate specifying the nature
and period of existence thereof and what action the Borrowers propose to take
with respect thereto and a certificate of the Borrowers’ Chief Operating Officer
in the form attached hereto as Exhibit C with respect to
environmental matters;
(d) contemporaneously
with, or promptly following, the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange Commission
or sent to the stockholders of the Borrowers; and
(e) from
time to time, such other financial data and other information (including
accountants’ management letters and a copy of the Borrowers’ annual budget and
projections for any fiscal year) as the Lenders may reasonably
request.
Borrowers
shall be deemed to have delivered reports and other information referred to
in
clauses (a), (b), and (e) of this §6.4 when (A) such reports or other
information have been posted on the Internet website of the Securities and
Exchange Commission (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or on Parent’s Internet website as
previously identified to the Administrative Agent and Lenders and (B) Parent
or
Borrowers have notified the Administrative Agent by electronic mail of such
posting.
The
Borrowers hereby acknowledge that (i) the Administrative Agent will make
available to the Lenders and the Issuing Lender materials and/or information
provided by or on behalf of the Borrowers hereunder (collectively, “Borrower
Materials”) by posting Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (ii) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrowers or their securities) (each,
a “Public Lender”). The Borrowers hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” by the Borrowers, which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrowers shall be
deemed to have authorized the Administrative Agent, the Issuing Lender and
the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrowers or their securities for purposes
of
United States Federal and state securities laws; (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor”; and (z) the Administrative Agent shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor”.
51
§6.5. Legal
Existence and Conduct of Business. Each Borrower will do
or cause to be done all things necessary to preserve and keep in full force
and
effect its legal existence, legal rights and franchises; effect and maintain
its
foreign qualifications, licensing, domestication or authorization except as
terminated by such Borrower’s Board of Directors in the exercise of its
reasonable judgment and except where the failure of a Borrower to remain so
qualified would not have a Material Adverse Effect; and shall not become
obligated under any contract or binding arrangement which, at the time it was
entered into would have a Material Adverse Effect. Each Borrower will
continue to engage primarily in the businesses now conducted by it and in
related businesses.
§6.6. Maintenance
of Properties. The Borrowers will cause all material
properties used or useful in the conduct of their businesses to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of
the Borrowers may be necessary so that the businesses carried on in connection
therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this section shall prevent the
Borrowers from discontinuing the operation and maintenance of any of their
properties if such discontinuance is, in the judgment of the Borrowers,
desirable in the conduct of their business and which does not in the aggregate
have a Material Adverse Effect.
§6.7. Insurance. The
Borrowers will maintain with financially sound and reputable insurance
companies, funds or underwriters insurance of the kinds, covering the risks
(other than risks arising out of or in any way connected with personal liability
of any officers and directors thereof) and in the relative proportionate amounts
typically carried by reasonable and prudent companies conducting businesses
similar to that of the Borrowers. In addition, the Borrowers will
furnish from time to time, upon the Administrative Agent’s request, a summary of
the insurance coverage, which summary shall be in form and substance reasonably
satisfactory to the Administrative Agent and, if requested by the Administrative
Agent, will furnish to the Administrative Agent certificates evidencing such
insurance and, with respect to the certificate evidencing liability insurance,
naming the Administrative Agent as the certificate holder
thereunder. Notwithstanding the foregoing, the Borrowers shall be
permitted to maintain self insurance programs of the kinds, covering the risks
and in the relative amounts as more particularly described on
Schedule6.7.
§6.8. Taxes. The
Borrowers will duly pay and discharge, or cause to be paid and discharged,
before any material penalty accrues thereon, all taxes, assessments and other
governmental charges (other than taxes, assessments and other governmental
charges imposed by foreign jurisdictions which in the aggregate are not material
to the business or assets of any Borrower on an individual basis or of the
Borrowers on a consolidated basis) imposed upon it and its real properties,
sales and activities, or any material part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies,
which if unpaid might by law become a lien or charge upon any material portion
of its property, unless such lien is a Permitted Lien; provided,
however, that any such tax, assessment,
52
charge,
levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto; and provided, further,
that the Borrowers will pay all such taxes, assessments, charges, levies or
claims forthwith upon the commencement of proceedings to foreclose any lien
which may have attached as security therefor.
§6.9. Inspection
of Properties, Books, and Contracts. The Borrowers will
permit the Lenders, the Administrative Agent or any of their designated
representatives, upon reasonable notice and during normal business hours, to
visit and inspect any of their properties, to examine their books of account
(including the making of periodic accounts receivable reviews), or contracts
(and to make copies thereof and extracts therefrom), and to discuss their
affairs, finances and accounts with, and to be advised as to the same by, their
officers, all at such times and intervals as the Lenders or the Administrative
Agent may reasonably request.
§6.10. Compliance
with Laws, Contracts, Licenses and Permits; Maintenance of Material Licenses
and
Permits. The Borrowers will and will cause the Excluded
Subsidiaries to (i) comply with the provisions of their charter documents
and by-laws (or the equivalent constitutive documents) and all agreements and
instruments by which they or any of their properties may be bound; and
(ii) comply with all applicable laws and regulations (including
Environmental Laws), decrees, orders, judgments, licenses and permits,
including, without limitation, all environmental permits hereto
(“ApplicableLaws”), except where noncompliance with such
Applicable Laws would not have a Material Adverse Effect. If at any
time while any Loan or Letter of Credit is outstanding or any Lender or the
Administrative Agent has any obligation to make Loans or issue Letters of Credit
hereunder, any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary
or
required in order that the Borrowers may fulfill any of their obligations
hereunder, the Borrowers will immediately take or cause to be taken all
reasonable steps within the power of the Borrowers to obtain such authorization,
consent, approval, permit or license and furnish the Lenders with evidence
thereof.
§6.11. Environmental
Indemnification. Each Borrower covenants and agrees that
it will indemnify and hold the Lenders harmless from and against any and all
claims, expense, damage, loss or liability incurred by the Lenders (including
all costs of legal representation incurred by the Lenders) relating to
(a) any Release or threatened Release of Hazardous Substances on the Real
Property; (b) any violation of any Environmental Laws with respect to
conditions at the Real Property or the operations conducted thereon; or
(c) the investigation or remediation of offsite locations at which any
Borrower or its predecessors are alleged to have directly or indirectly disposed
of Hazardous Substances. It is expressly acknowledged by each
Borrower that this covenant of indemnification shall include claims, expense,
damage, loss or liability incurred by the Lenders based upon the Lenders’
negligence, and this covenant shall survive any foreclosure or any modification,
release or discharge of the Loan Documents or the payment of the Loans and
shall
inure to the benefit of the Lenders, their successors and assigns.
§6.12. Further
Assurances. The Borrowers will cooperate with the
Lenders and execute such further instruments and documents as the Lenders or
the
Administrative Agent shall reasonably request to carry out to the Lenders’
satisfaction the transactions contemplated by this Credit Agreement and the
Loan
Documents.
53
§6.13. Notice
of Potential Claims or Litigation. The Borrowers will
deliver to the Lenders, within 30 days of receipt thereof, written notice
of the initiation of any action, claim, complaint, or any other notice of
dispute or potential litigation (including without limitation any alleged
violation of any Environmental Law or any dispute, litigation, investigation
or
proceeding between any Borrower and any Governmental Authority), wherein the
potential liability is in excess of $10,000,000, together with a copy of each
such notice received by any Borrower or any Excluded Subsidiary.
§6.14. Notice
of Certain Events Concerning Insurance and Environmental
Claims.
(a) The
Borrowers will provide the Lenders with written notice as to any material
cancellation or material change in any insurance of the Borrowers within ten
(10) Business Days after the Borrowers’ receipt of any written notice of
such cancellation or change by any of their insurers.
(b) The
Borrowers will promptly notify the Lenders in writing of any of the following
events:
(i) upon
obtaining knowledge of any violation of any Environmental Law regarding the
Real
Property or any Borrower’s operations, which violation could have a Material
Adverse Effect; (ii) upon obtaining knowledge of any potential or known
Release or threat of Release of any Hazardous Substance at, from, or into the
Real Property which is reportable in writing to any governmental authority
and
which is material in amount or nature; (iii) upon receipt of any notice of
violation of any Environmental Laws or of any Release or threatened Release
of
Hazardous Substances, including a notice or claim of liability or potential
responsibility from any third party (including without limitation any federal,
state or local governmental officials) and including notice of any formal
inquiry, proceeding, demand, investigation or other action with regard to (A)
operation of the Real Property, (B) contamination on, from or into the Real
Property, or (C) investigation or remediation of offsite locations at which
any Borrower or any of its predecessors is alleged to have directly or
indirectly Disposed of Hazardous Substances, which violation or Release in
any
such case could have a Material Adverse Effect; or (iv) upon obtaining
knowledge that any material expense or loss has been incurred by such
governmental authority in connection with the assessment, containment, removal
or remediation of any Hazardous Substances with respect to which any Borrower
may be liable or for which a lien may be imposed on the Real
Property.
§6.15. Notice
of Default. The Borrowers will promptly notify the
Lenders in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action
in respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or any other note, evidence of
Indebtedness, indenture or other obligation evidencing Indebtedness in excess
of
$15,000,000 as to which any Borrower is a party or obligor, whether as principal
or surety, the Borrowers shall forthwith give written notice thereof to the
Lenders, describing the notice or action and the nature of the claimed
default.
54
§6.16. New
Subsidiaries.
(a) Any
new Subsidiary (other than Excluded Subsidiaries) created or acquired by a
Borrower as permitted under §7.4 shall become a Borrower
hereunder. Such Subsidiary shall become a Borrower hereunder on or
before the fifteenth (15th) Business
Day
after the end of the fiscal quarter in which such Subsidiary was created or
acquired. A Subsidiary shall become a Borrower by (x) signing a
joinder agreement in substantially the form attached hereto as Exhibit E
or entering into an amendment to this Credit Agreement with the other parties
hereto and thereto, in form and substance reasonably satisfactory to the
Administrative Agent, providing that such Subsidiary shall become a Borrower
hereunder, and (y) providing such other documentation as the Administrative
Agent may reasonably request, including, without limitation, (i) KYC Requirement
Information with respect to such new Subsidiary and (ii) documentation with
respect to the conditions specified in §9 hereof. In such event, the
Administrative Agent is hereby authorized by the parties to amend Schedule
2 to include such new Subsidiary and the KYC Requirement Information in
respect thereof.
(b) The
Parent shall at all times directly or indirectly through a Subsidiary own all
of
the Capital Stock of each of the Subsidiaries (other than the Excluded
Subsidiaries).
§6.17. Employee
Benefit Plans. The Borrowers will (i) promptly upon
filing the same with the Department of Labor or Internal Revenue Service, upon
request of the Administrative Agent, furnish to the Administrative Agent a
copy
of the most recent actuarial statement required to be submitted under §103(d) of
ERISA and Annual Report, Form 5500, with all required attachments, in respect
of
each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043,
4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under
§§4041A, 4202, 4219, 4242, or 4245 of ERISA.
§6.18. Additional
Notices. The Borrowers will promptly notify the
Administrative Agent in writing of:
(a) any
material change in accounting policies or financial reporting practices by
any
Borrower; or
(b) any
notice or announcement by ▇▇▇▇▇’▇, S&P or Fitch (i) of any downgrade in any
Borrower’s Debt Rating or (ii) that any Borrower’s Debt Rating will be put on a
“negative outlook” or “negative credit watch”.
§7. CERTAIN
NEGATIVE COVENANTS OF THE BORROWERS.
The
Borrowers covenant and agree that, so long as any Obligation is outstanding
or
any Lender has any obligation to make any Loans or the Administrative Agent
has
any obligation to issue, extend or renew any Letters of Credit:
55
§7.1. Restrictions
on Indebtedness. No Borrower shall become or be a
guarantor or surety of, or otherwise create, incur, assume, or be or remain
liable, contingently or otherwise, with respect to any Indebtedness, or become
or be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services or otherwise) with respect to any undertaking
or Indebtedness of any other Person, or incur any Indebtedness other
than:
(a) Indebtedness
existing on the Closing Date and set forth on Schedule 7.1, including any
renewals, extensions, refinancings and replacements thereof so long as the
principal amount thereof (plus all accrued interest on such Indebtedness and
the
amount of all fees and expenses, including premiums, incurred in connection
therewith) is not increased;
(b) incurrence
of guaranty, suretyship or indemnification obligations in connection with the
Borrowers’ performance of services for their respective customers in the
ordinary course of their businesses;
(c) Indebtedness
of one Borrower to another Borrower;
(d) Indebtedness
of the Borrowers incurred in connection with the acquisition or lease of any
equipment or other property by the Borrowers under any Synthetic Lease,
Capitalized Lease or other lease arrangement or purchase money
financing;
(e) Indebtedness
of the Borrowers with respect to bonds for closure and post-closure obligations
relating to any landfill owned or operated by the Borrowers and municipal
collection contracts;
(f) Indebtedness
of the Borrowers in respect of Swap Contracts (including fuel price swaps,
fuel
price caps, and fuel price collar or floor agreements, and similar agreements
or
arrangements) entered into in the ordinary course of business and not for
speculative purposes;
(g) Indebtedness
of the Borrowers with respect to letters of credit of Persons acquired by the
Borrowers; provided, that such letters of credit shall be retired
or replaced by Letters of Credit under this Credit Agreement as soon as possible
but in any event not later than one hundred twenty days (120) days after the
closing of any such acquisition;
(h) Indebtedness
of the Borrowers in respect of IRB’s; provided, that (a) such
Indebtedness is secured only to the extent such IRB’s are L/C Supported IRB’s
and (b) after taking into account all Indebtedness incurred pursuant to this
clause (h), the Borrowers on a consolidated basis shall be in pro forma
compliance with each of the financial covenants set forth in §8.
(i) other
secured Indebtedness (other than as permitted under other subsections hereof),
not in excess of $20,000,000 in the aggregate at any time outstanding;
and
56
(j) other
unsecured Indebtedness; provided, that, at the time of incurrence
thereof, the Borrowers shall be in compliance with each of the
financial covenants set forth in §8 determined on a pro forma basis (including a
pro forma application of the net proceeds thereof) as if such Indebtedness
had
been incurred on the first day of the current Reference Period.
§7.2. Restrictions
on Liens. No Borrower shall create or incur or suffer to
be created or incurred or to exist any lien, encumbrance, mortgage, pledge,
charge, restriction or other security interest of any kind upon any property
or
assets of any character, whether now owned or hereafter acquired, or upon the
income or profits therefrom; or transfer any of such property or assets or
the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority
to
payment of its general creditors; or acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; or suffer to exist
for a period of more than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it which if unpaid might by law or
upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general creditors; or sell, assign, pledge or otherwise transfer any
accounts, contract rights, general intangibles or chattel paper, with or without
recourse, except as follows (the “Permitted Liens”):
(a) Liens
to secure taxes, assessments and other government charges in respect of
obligations not overdue or liens on properties to secure claims for labor,
material or supplies in respect of obligations not overdue (provided that,
if
the obligation with respect to which any such lien arises is being contested
in
good faith by appropriate proceedings, such obligation may remain unpaid during
the pendency of such proceedings as long as the Borrowers shall have set aside
on their books adequate reserves with respect thereto);
(b) Deposits
or pledges made in connection with, or to secure payment of, workmen’s
compensation, unemployment insurance, old age pensions or other social security
obligations;
(c) Liens
in respect of judgments or awards which have been in force for less than the
applicable period for taking an appeal so long as execution is not levied
thereunder or in respect of which the applicable Borrower shall at the time
in
good faith be prosecuting an appeal or proceedings for review and in respect
of
which a stay of execution shall have been obtained pending such appeal or review
and in respect of which such Borrower maintains adequate reserves;
(d) Liens
of carriers, warehousemen, mechanics and materialmen, and other like liens,
in
existence less than 120 days from the date of creation thereof in respect of
obligations not overdue, providedthat such liens may continue to
exist for a period of more than 120 days if the validity or amount thereof
shall
currently be contested by the applicable Borrower in good faith by appropriate
proceedings and if such Borrower shall have set aside on its books adequate
reserves with respect thereto as required by GAAP and
providedfurther that such Borrower will pay any such claim
forthwith upon commencement of proceedings to foreclose any such
lien;
57
(e) Encumbrances
on Real Property consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities in
the
title thereto, landlord’s or lessor’s liens under leases to which any Borrower
is a party, and other minor liens or encumbrances none of which in the opinion
of such Borrower interferes materially with the use of the property affected
in
the ordinary conduct of the business of such Borrower, which defects do not
individually or in the aggregate have a Material Adverse Effect;
(f) Liens
securing Indebtedness permitted under §7.1(d) incurred in connection with the
lease or acquisition of property or fixed assets or industrial bond financings,
providedthat such Liens shall encumber only the property or assets
so acquired or financed and shall not exceed the purchase price
thereof;
(g) Liens
granted in favor of Evergreen or one of its affiliates on the Evergreen Shares
(and on any additional shares of Evergreen acquired by the Parent resulting
from
the exercise of the Evergreen Option) as security for surety bonds issued by
Evergreen or such affiliate to the Borrowers;
(h) Liens,
whether created by contract, law, regulation or ordinance, securing Indebtedness
permitted by §§7.1(b), (e) and (g); provided that any security granted therefor
is limited to (i) rights to payment under, and use of equipment or related
assets to perform, the contracts to which such guaranty, suretyship or bond
obligations relate, (ii) Liens arising under the laws of suretyship and (iii)
similar Liens granted in favor of municipalities or other governmental entities
pursuant to any Municipal Contract; provided, that such liens (A) encumber
only
the containers, bins, carts and vehicles used in connection with such Municipal
Contract and (B) are promptly released as soon as such release is not prohibited
under the terms of such Municipal Contract;
(i) Liens
listed on Schedule 7.2(i) hereto;
(j) Liens
securing Indebtedness permitted under §7.1(h) in the form of L/C Supported
IRB’s.
(k) Liens
securing deposits made on account of liabilities to insurance carriers under
insurance or self-insurance arrangements;
(l) Liens
granted to a Receivables SPV in connection with a Permitted Receivables
Transaction and securing Indebtedness of the Borrowers and their Subsidiaries
existing as of the Closing Date and listed on Schedule 7.1 in connection
therewith, providedthat such Liens attach only to the accounts
receivable which are the subject of such Indebtedness and to the Capital Stock
of the Receivables SPV; and
(m) Liens
granted in connection with secured Indebtedness incurred pursuant to §§7.1(a) or
(i).
§7.3. Restrictions
on Investments. The Borrowers may purchase or acquire,
or make any commitment for the purchase or acquisition of, any Capital Stock,
or
other obligations of any other Person, or make or commit to make any acquisition
under §7.4, or make or commit
58
to
make any advance, loan, guarantee, assumption of
debt, extension of credit or capital contribution to or any other investment
in,
any other Person, so long as (i) the Borrowers are in compliance with each
of
the covenants set forth in §8 hereof, determined on a pro forma basis, (ii) at
the time of such investment, no Default or Event of Default has occurred and
is
continuing or would result therefrom and (iii) to the extent such proposed
investment constitutes a transaction described in §7.4.1, the Borrowers comply
with the requirements set forth in such §7.4.1.
§7.4. Merger,
Consolidation and Disposition of Assets.
§7.4.1. Mergers
and Acquisitions. The Borrowers will not become a party
to any merger or consolidation, or agree to or effect any asset acquisition
or
stock acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices and with respect to asset swaps)
except the merger or consolidation of, or asset or stock acquisitions between
existing Borrowers, and except as otherwise provided in this
§7.4.1. The Borrowers may purchase or otherwise acquire assets or the
stock or the other equity interests of any other Person; provided
that:
(a) the
Borrowers are in current compliance with and, giving effect to the proposed
acquisition (including any borrowings made or to be made in connection
therewith), will continue to be in pro forma compliance with all of the
covenants in §8 hereof on a pro forma historical combined basis as if the
transaction occurred on the first day of the period of measurement as determined
by reference to the Compliance Certificate required to be delivered to the
Administrative Agent pursuant to §6.4(c) hereof;
(b) at
the time of such acquisition, no Default or Event of Default has occurred and
is
continuing, and such acquisition will not otherwise create a Default or an
Event
of Default hereunder;
(c) the
business to be acquired is predominantly in the same lines of business as the
Borrowers, or businesses reasonably related or incidental thereto (e.g.,
non-hazardous solid waste collection, transfer, hauling, recycling, or
disposal);
(d) all
of the assets to be acquired shall be owned by an existing or newly created
Subsidiary of the Parent which Subsidiary shall be or became (in accordance
with
§6.16) a Borrower hereunder; and
(e) the
board of directors and (if required by applicable law) the shareholders, or
the
equivalent thereof, of the business to be acquired has approved such
acquisition;
(f) if
such acquisition is made by a merger, a Borrower, or a wholly-owned Subsidiary
of the Parent which shall become a Borrower in connection with such merger,
shall be the surviving entity.
§7.4.2. Disposition
of Assets. The Borrowers will not become a party to or
agree to or effect any disposition of assets, other than (a) the sale of
inventory, the licensing of intellectual property and the disposition of
obsolete assets, in each case in the
59
ordinary
course of business consistent with past practices, (b) a
disposition of assets from a Borrower to any other Borrower, (c) the sale or
exchange of routes and related assets which in the business judgment of the
Borrowers will not have a Material Adverse Effect, (d) assets with a fair market
value of less than $50,000,000 per year transferred in connection with an asset
sale or swap, which sale or swap in the business judgment of the Borrowers
does
not have a Material Adverse Effect and (e) the sale, lease, assignment, transfer
or other disposition of Receivables in connection with any Permitted Receivables
Transaction.
§7.5. Sale
and Leaseback. The Borrowers shall not enter into any
arrangement, directly or indirectly, whereby any Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property
or
lease other property which such Borrower intends to use for substantially the
same purpose as the property being sold or transferred, without the prior
written consent of the Required Lenders.
§7.6. Restricted
Payments and Redemptions. The Borrowers shall not
purchase, redeem, retire or otherwise acquire shares of any class of its Capital
Stock, or make any Restricted Payments (provided, however, that
neither the exercise of common stock purchase warrants or options to purchase
common stock on a “cashless” exercise basis under a Borrower’s equity incentive
plans shall constitute a purchase or redemption of Capital Stock), except that
(a) a Borrower may make any Restricted Payment to another Borrower, (b) the
Parent may make any Restricted Payment so long as no Default or Event of Default
exists or would be created by the making of such Restricted Payment
(provided, that if as of the end of any fiscal quarter in any fiscal year
(and after giving effect to any Loans advanced to finance such Restricted
Payment, if any), the Borrowers shall have on a consolidated basis a Leverage
Ratio of greater than or equal to 3.00 to 1.00, as determined by reference
to
the most recent Compliance Certificate delivered to the Administrative Agent
pursuant to §6.4, the Borrowers shall not make Restricted Payments in excess of
$150,000,000 in the aggregate in such fiscal year, unless and until such time
as
the Borrowers shall have on a consolidated basis a Leverage Ratio of less than
3.00 to 1.00 as determined by reference to any subsequent Compliance Certificate
delivered to the Administrative Agent pursuant to §6.4 hereof;
providedfurther, that if (x) the Borrowers shall be prohibited
from making Restricted Payments in excess of $150,000,000 in the aggregate
in
any fiscal year as a result of the application of the foregoing Leverage Ratio
and (y) the Borrowers shall have previously made Restricted Payments in an
aggregate amount greater than or equal to $150,000,000 during such fiscal year,
the Borrowers shall not be deemed to be in violation of this §7.6 as a result of
such pre-existing Restricted Payments but shall not make any additional
Restricted Payments for the remainder of such fiscal year, unless and until
such
time as the Borrowers shall have on a consolidated basis a Leverage Ratio of
less than 3.00 to 1.00 as determined by reference to any subsequent Compliance
Certificate delivered to the Administrative Agent pursuant to §6.4 hereof) and
(c) the Borrowers may make cash payments to its employees pursuant to one or
more profit sharing, equity incentive or other benefit plan.
§7.7. Employee
Benefit Plans. No Borrower nor any ERISA Affiliate
will:
(a) engage
in any “prohibited transaction” within the meaning of §406 of ▇▇▇▇▇ ▇▇ §▇▇▇▇ of
the Code which could result in a material liability for any Borrower;
or
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(b) permit
any Guaranteed Pension Plan to incur an “accumulated funding deficiency”, as
such term is defined in §302 of ERISA, whether or not such deficiency is or may
be waived; or
(c) fail
to contribute to any Guaranteed Pension Plan to an extent which, or terminate
any Guaranteed Pension Plan in a manner which, could result in the imposition
of
a lien or encumbrance on the assets of any Borrower pursuant to §302(f) or §4068
of ERISA; or
(d) amend
any Guaranteed Pension Plan in circumstances requiring the posting of security
pursuant to §307 of ERISA or §401(a)(29) of the Code; or
(e) permit
or take any action which would result in the aggregate benefit liabilities
(within the meaning of §4001 of ERISA) of all Guaranteed Pension Plans exceeding
the value of the aggregate assets of such Plans, disregarding for this purpose
the benefit liabilities and assets of any such Plan with assets in excess of
benefit liabilities.
§7.8. Negative
Pledges. Except as required by any
Municipal Contract, no Borrower shall enter into or permit to exist any
arrangement or agreement, enforceable under applicable law, which directly
or
indirectly prohibits such Borrower from creating or incurring any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest
in
favor of the Administrative Agent for the benefit of the Lenders and the
Administrative Agent under the Loan Documents other than customary
anti-assignment provisions in leases and licensing agreements entered into
by
such Borrower in the ordinary course of its business; provided,
however, that this §7.8 shall not prohibit any negative pledge (i)
incurred or provided in favor of any holder of Indebtedness permitted under
§7.1, (A) solely to the extent any such negative pledge relates to the property
financed by such Indebtedness or (B) the terms of which are customary at the
time of incurrence and are approved by the Administrative Agent in writing,
(ii)
with respect to any Subsidiary of Parent imposed pursuant to an agreement which
has been entered into for the sale or disposition permitted under §7.4.2, or
(iii) in connection with restrictions imposed by applicable laws.
§7.9. Business
Activities. No Borrower will engage directly or
indirectly (whether through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by such Borrower on the Closing Date and
in
related businesses.
§7.10. Transactions
with Affiliates. No Borrower will engage in any
transaction with any Affiliate (other than for services as employees, officers
and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of the Borrowers, any corporation,
partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, on terms more favorable
to such Person than would have been obtainable on an arm’s-length basis in the
ordinary course of business.
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§7.11. Prepayments
of Indebtedness. The Borrowers may prepay, redeem or
repurchase any Indebtedness incurred by the Borrowers pursuant to §7.1 hereof so
long as (a) no Default or Event of Default has occurred and is continuing,
or
would be created thereby and (b) after giving effect to any such prepayment,
redemption or repurchase, the Borrowers shall be in compliance with each of
the
financial covenants set forth in §8 hereof, determined on a pro forma basis.
§7.12.Accounting
Changes. No Borrower will make any change in its
accounting policies or reporting practices, except as required by
GAAP.
§8. FINANCIAL
COVENANTS.
The
Borrowers covenant and agree that, so long as any Obligation is outstanding
or
any Lender has any obligation to make any Loans or the Administrative Agent
has
any obligation to issue, extend or renew any Letters of Credit:
§8.1. Leverage
Ratio. As of the end of each fiscal quarter of the
Borrowers, the Borrowers will not permit the ratio of Consolidated Total Funded
Debt to Consolidated EBITDA (the “LeverageRatio”) to exceed
3.50:1.00 for the Reference Period ending on such date.
§8.2. Interest
Coverage Ratio. As of the end of any fiscal quarter of
the Borrowers, the ratio of (a) Consolidated EBIT to (b) Consolidated Total
Interest Expense shall not be less than 2.75:1.00 for the Reference Period
ending on such date.
§9. CLOSING
CONDITIONS. The obligations of the Lenders to make the
Loans and the Administrative Agent to issue Letters of Credit on the Closing
Date and otherwise be bound by the terms of this Credit Agreement shall be
subject to the satisfaction of each of the following conditions precedent,
unless satisfaction of any non-material condition as determined by the
Administrative Agent shall have been waived or extended by the Administrative
Agent:
§9.1. Corporate
Action. All corporate (or equivalent company or
partnership) action necessary for the valid execution, delivery and performance
by the Borrowers of the Loan Documents shall have been duly and effectively
taken, and satisfactory evidence thereof shall have been provided to the
Administrative Agent.
§9.2. Loan
Documents, Etc. Each of the Loan Documents shall have
been duly and properly authorized, executed and delivered by the respective
parties thereto and shall be in full force and effect in a form satisfactory
to
the Lenders.
§9.3. Certificate
of Secretary; Good Standing Certificates. The
Administrative Agent shall have received from each Borrower a certificate as
to
the good standing of each from the Secretary of State or other appropriate
official of the state of its organization, dated no earlier than forty-five
(45)
days prior to the Closing Date. The Administrative Agent shall also
have received from each Borrower a certificate of its Secretary certifying
the
following attachments thereto: (a) a copy of its certificate or articles of
incorporation or other constitutive documents, in each case as amended to date,
certified by the Secretary of State or other appropriate official of the state
of its organization, (b) a true and correct copy of its by-laws (or
equivalent constitutive documents), including all amendments
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thereto,
and (c) a true and correct copy of the
resolutions of its board of directors authorizing the transactions contemplated
hereunder and under the other Loan Documents. Such Secretary’s
Certificate shall also give the name and bear a specimen signature of each
individual who shall be authorized (i) to sign the Loan Documents on behalf
of the Borrowers; (ii) to make Loan and Letter of Credit Requests; and
(iii) to give notices and to take other action on the Borrowers’ behalf
under the Loan Documents.
§9.4. Certificates
of Insurance. The Administrative Agent shall have
received a certificate of insurance signed by the insurer or an agent authorized
to bind the insurer dated as of the Closing Date, or within 15 days prior
thereto, identifying insurers, types of insurance, insurance limits, and policy
terms, and otherwise describing the Borrowers’ insurance coverage.
§9.5. Legal
Opinions. The Administrative Agent shall have received a
favorable legal opinion from counsel to the Borrowers, addressed to the
Administrative Agent and the Lenders, dated as of the Closing Date, in form
and
substance satisfactory to the Administrative Agent.
§9.6. Environmental
Permit Certificate. The Lenders shall have received an
environmental permit certificate in substantially the form of Exhibit C
from the Borrowers satisfactory to the Administrative Agent concerning principal
operating permits at the Borrowers’ principal operating facilities.
§9.7. Payment
of Fees. The Borrowers shall have paid any fees
(including, without limitation, those fees set forth in §4.1 and in the Fee
Letter) owing to any of the Lenders, the Administrative Agent or the Joint
Lead
Arrangers and shall have paid all fees and disbursements of counsel to the
Administrative Agent invoiced as of the Closing Date.
§9.8. Closing
Certificate. The Administrative Agent shall have
received a certificate from an authorized officer of the Borrowers, dated as
of
the Closing Date, in form and substance satisfactory to the Administrative
Agent, certifying that as of such date, (i) the representations and
warranties set forth herein or in any other Loan Document are true and correct,
(ii) no Default or Event of Default has occurred and is continuing, and (iii)
that Schedule2 attached hereto lists all of the Subsidiaries of
the Parent as of the Closing Date.
§9.9. Closing
Date Compliance Certificate. The Administrative Agent
shall have received a Compliance Certificate from the CFO, dated as of the
Closing Date, in form and substance satisfactory to the Administrative Agent,
certifying that the Borrowers are in pro forma compliance as of the Interim
Balance Sheet Date with each of the financial covenants set forth in
§8.
§9.10. Projections. The
Lenders shall have received the Borrowers’ final financial projections and
business assumptions covering the period from the Closing Date through the
Revolving Credit Maturity Date, which shall be in form and substance
satisfactory to the Administrative Agent and the Joint Lead Arrangers;
provided, that each Lender hereby acknowledges that it has received such
final projections and business assumptions from the Borrowers, and such final
projections and business assumptions satisfy the requirements of this
§9.10.
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§9.11. Termination
of Existing Credit Agreement. The Administrative Agent
shall have received satisfactory evidence that the Existing Credit Agreement
has
been terminated and all obligations thereunder have been
discharged.
§9.12. Closing
Documentation, Etc. Without limiting the generality of
the provisions of §13 below, for purposes of determining compliance with the
conditions specified in this §9, each Lender that has signed this Agreement
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 a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing
Date specifying its objection thereto.
§10. CONDITIONS
OF ALL LOANS. The obligations of the Lenders to make any
Loan (including without limitation the obligation of the Issuing Lender to
issue, extend or renew any Letter of Credit) on and subsequent to the Closing
Date is subject to the following conditions precedent:
§10.1. Representations
True; No Event of Default. Each of the representations
and warranties of the Borrowers contained in this Credit Agreement or in any
document or instrument delivered pursuant to or in connection with this Credit
Agreement shall be true as of the date as of which they were made and shall
also
be true at and as of the time of any Drawdown Date or the issuance of any Letter
of Credit with the same effect as if made at and as of that time (except to
the
extent of changes resulting from transactions contemplated or permitted by
this
Credit Agreement and changes occurring in the ordinary course of business which
singly or in the aggregate would not have a Material Adverse Effect, or to
the
extent that such representations and warranties relate solely and expressly
to
an earlier date) and no Default or Event of Default shall have occurred and
be
continuing.
§10.2. Performance;
No Event of Default. The Borrowers shall have performed
and complied with all terms and conditions herein required to be performed
or
complied with by the Borrowers prior to or at the time of the making of any
Loan
or the issuance of any Letter of Credit, and at the time of making any Loan
or
issuance of any Letter of Credit, there shall exist no Event of Default or
condition which would result in an Event of Default upon the making of such
Loan
or the issuance of such Letter of Credit, as the case may be. Each
request by the Borrowers for a Loan (including without limitation each request
for issuance, extension or renewal of a Letter of Credit) subsequent to the
first Loan made hereunder shall constitute certification by the Borrowers that
the conditions specified in §§10.1 and 10.2 will be duly satisfied on the date
of such Loan or Letter of Credit issuance.
§10.3. No
Legal Impediment. No change shall have occurred in any
law or regulations thereunder or interpretations thereof which in the reasonable
opinion of the Lenders would make it illegal for the Lenders to make Loans
hereunder.
§10.4. Governmental
Regulation. The Lenders shall have received such
statements in form and substance reasonably satisfactory to the Lenders as
they
shall require for the purpose of compliance with any applicable regulations
of
the Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
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§10.5. Proceedings
and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement and all documents incident
thereto shall have been delivered to the Lenders as of the date hereof in form
and substance satisfactory to the Lenders (including without limitation an
initial Loan and Letter of Credit Request), and the Lenders shall have received
all information and such counterpart originals or certified or other copies
of
such documents as the Lenders may reasonably request.
§11. EVENTS
OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
§11.1. Events
of Default and Acceleration. If any of the following
events (“Events of Default” or, if the giving of notice or the lapse of
time or both is required, then, prior to such notice and/or lapse of time,
“Defaults”) shall occur:
(a) if
the Borrowers shall fail to pay any principal of the Loans or any Reimbursement
Obligation when the same shall become due and payable, whether at the Revolving
Credit Maturity Date, or any accelerated date of maturity or at any other date
fixed for payment;
(b) if
the Borrowers shall fail to pay any interest or fees or other amounts owing
under the Loan Documents within five (5) Business Days after the same shall
become due and payable whether at the Revolving Credit Maturity Date or any
accelerated date of maturity or at any other date fixed for
payment;
(c) if
the Borrowers shall fail to comply with the covenants contained in §§6.5, 6.13,
6.14, 6.15, 7 or 8;
(d) if
the Borrowers shall fail to perform any term, covenant or agreement contained
herein or in any of the other Loan Documents (other than those specified in
subsections (a), (b) and (c) above) within 30 days after written notice of
such failure has been given to the Borrowers by the Administrative Agent or
any
Lender;
(e) if
any representation or warranty contained in this Credit Agreement or in any
document or instrument delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material respect upon the date
when made or repeated;
(f) if
any Borrower or any Excluded Subsidiary shall fail to pay at maturity, or within
any applicable period of grace, any and all obligations for borrowed money
(other than the Obligations) or any guaranty with respect thereto in an
aggregate amount greater than $50,000,000 or fail to observe or perform any
material term, covenant or agreement contained in any agreement by which it
is
bound, evidencing or securing borrowed money in an aggregate amount greater
than
$50,000,000 for such period of time as would permit (after the giving of
appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof, unless the
same shall have been waived by the holder(s) thereof;
65
(g) if
any Borrower or any Excluded Subsidiary makes an assignment for the benefit
of
creditors, or admits in writing its inability to pay or generally fails to
pay
its debts as they mature or become due, or petitions or applies for the
appointment of a trustee or other custodian, liquidator or receiver of any
Borrower or any Excluded Subsidiary or of any substantial part of the assets
of
any Borrower or any Excluded Subsidiary or commences any case or other
proceeding relating to any Borrower or any Excluded Subsidiary under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or takes any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application is filed or any such case
or
other proceeding is commenced against any Borrower or any Excluded Subsidiary
or
such Borrower or such Excluded Subsidiary indicates its approval thereof,
consent thereto or acquiescence therein, or such petition or application shall
not have been dismissed within sixty (60) days following the filing
thereof;
(h) a
decree or order is entered appointing any such trustee, custodian, liquidator
or
receiver or adjudicating any Borrower or any Excluded Subsidiary bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or
a
decree or order for relief is entered in respect of any Borrower or any Excluded
Subsidiary in an involuntary case under applicable bankruptcy laws as now or
hereafter constituted;
(i) if
there shall remain in force, undischarged, unsatisfied and unstayed, for more
than forty-five (45) days, whether or not consecutive, any final judgment
against any Borrower or any Excluded Subsidiary which, with other outstanding
final judgments against the Borrowers and the Excluded Subsidiaries, exceeds
in
the aggregate $5,000,000 after taking into account any undisputed insurance
coverage;
(j) any
Borrower or any Excluded Subsidiary or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $20,000,000, or any Borrower or any ERISA Affiliate
is assessed withdrawal liability pursuant to Title IV of ERISA by a
Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000,
or
any of the following occurs with respect to a Guaranteed Pension Plan:
(i) an ERISA Reportable Event, or a failure to make a required installment
or other payment (within the meaning of §302(f)(1) of ERISA), provided
that the Administrative Agent determines in its reasonable discretion that
such event (A) could be expected to result in liability of any Borrower or
any Excluded Subsidiary to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $20,000,000 and (B) could constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC, for the appointment
by the appropriate United States District Court of a trustee to administer
such
Guaranteed Pension Plan or for the imposition of a lien in favor of such
Guaranteed Pension Plan; or (ii) the appointment by a United States
District Court of a trustee to administer such Guaranteed Pension Plan; or
(iii) the institution by the PBGC of proceedings to terminate such
Guaranteed Pension Plan;
(k) if
any of the Loan Documents shall be cancelled, terminated, revoked or rescinded,
in each case otherwise than in accordance with the terms thereof or with
the
66
express
prior written agreement, consent or approval of the Lenders, or any action
at
law, suit in equity or other legal proceeding to cancel, revoke or rescind
any
of the Loan Documents shall be commenced by or on behalf of any Borrower or
any
stockholder of any Borrower who is an officer or director of such Borrower,
or
any court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(l) (i)
the Parent shall at any time, legally or beneficially own less than one hundred
percent (100%) of the shares of the Capital Stock of each other Borrower
(directly or indirectly in accordance with §6.16), or (ii) any person or group
of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 25% or more of the outstanding shares of common
stock of the Parent; or, during any period of twelve consecutive calendar
months, individuals who were directors of the Parent on the first day of such
period shall cease to constitute a majority of the board of directors unless
such new directors were approved by a majority of the directors who were
directors on the first day of such period; provided, however, that
any such change of control resulting from an acquisition permitted under §7.4
shall not constitute a Default or an Event of Default hereunder; or
(m) a
“Change of Control” under and as defined in the Permitted Debt Documents shall
occur;
then,
and
in any such event, so long as the same may be continuing, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice in
writing to the Borrowers, declare all amounts owing with respect to this Credit
Agreement and the other Loan Documents and all Reimbursement Obligations to
be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided that in the event of
any Event of Default specified in §§11.1(g) or 11.1(h), all such amounts shall
become immediately due and payable automatically and without any requirement
of
notice from the Administrative Agent or any Lender. After the
occurrence of any Event of Default, the Borrowers shall immediately provide
to
the Administrative Agent cash in an amount equal to the Maximum Drawing Amount
of all Letters of Credit outstanding, to be held by the Administrative Agent
as
collateral security for the Obligations.
§11.2. Termination
of Commitments. If any Event of Default shall occur and
be continuing, the Administrative Agent may, and at the request of a majority
of
the Revolving Credit Lenders shall, by notice to the Borrowers, terminate the
unused portion of the Total Revolving Credit Commitment hereunder, and upon
such
notice being given, such unused portion of the Total Revolving Credit Commitment
hereunder shall terminate immediately and the Lenders shall be relieved of
all
further obligations to make Loans to or issue Letters of Credit for the account
of the Borrowers hereunder, provided that in the event of any Event of
Default specified in §§11.1(g) or 11.1(h), all such amounts shall become
immediately due and payable
67
automatically
and without any requirement of notice
from the Administrative Agent or any Lender. No termination of any
portion of the Total Revolving Credit Commitment hereunder shall relieve the
Borrowers of any of their existing Obligations to the Lenders hereunder or
elsewhere.
§11.3. Remedies. Subject
to §12, in case any one or more Events of Default shall have occurred and be
continuing, and whether or not the Lenders shall have accelerated the maturity
of the Loans and other Obligations pursuant to §11.1, each Lender may, after
giving the Borrowers and Administrative Agent written notice three Business
Days
before such suit, action or other proceeding, proceed to protect and enforce
its
rights by suit in equity, action at law or other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this
Credit Agreement and the other Loan Documents or any instrument pursuant to
which the Obligations to such Lender are evidenced, including, without
limitation, as permitted by applicable law the obtaining of the ex
parte appointment of a receiver, and, if such amount shall have become due,
by declaration or otherwise, proceed to enforce the payment thereof or any
legal
or equitable right of such Lender. No remedy herein conferred upon
any Lender, the Administrative Agent or the holder of any Note or purchaser
of
any Letter of Credit Participation is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition
to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law.
§11.4.Application
of Funds. After the exercise of remedies provided for in
§11.1 above (or after the Loans have automatically become immediately
due and
payable and the Letter of Credit Obligations have automatically been required
to
be cash collateralized as set forth therein), any amounts received on account
of
the Obligations shall be applied by the Administrative Agent in the following
order:
(a) First,
to the payment of, or (as the case may be) the reimbursement of the
Administrative Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Administrative Agent in connection with the collection of such amounts by the
Administrative Agent, for the exercise, protection or enforcement by the
Administrative Agent of all or any of the rights, remedies, powers and
privileges of the Administrative Agent under this Credit Agreement or any of
the
other Loan Documents or in support of any provision of adequate indemnity to
the
Administrative Agent against any taxes or liens which by law shall have, or
may
have, priority over the rights of the Administrative Agent to such
amounts;
(b) Second,
to all other Obligations; provided that distributions shall be made (A)
pari passu among the Obligations (including the Maximum Drawing Amount
of
the Letters of Credit); provided, that upon the reduction, cancellation,
expiration or termination of any Letter of Credit, the Maximum Drawing Amount
which has been included as an Obligation and any cash collateral held for the
benefit of the Lenders in respect thereto will be redistributed pari passu
to
the Lenders in accordance with this §11.4 with respect to each type of
Obligation owing to the Lenders, such as interest, principal, fees and expenses,
among the Lenders pro rata in accordance with the amount of all such
Obligations outstanding; and
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(c) Third,
the excess, if any, shall be returned to the Borrowers or to such other Persons
as are entitled thereto.
§12. SETOFF.
If
an
Event of Default shall have occurred and be continuing, each Lender, the Issuing
Lender and each of their respective Affiliates is hereby authorized at any
time
and from time to time, to the fullest extent permitted by applicable law, to
set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the Issuing
Lender or any such Affiliate to or for the credit or the account of any Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under this Agreement or any other Loan Document to such Lender or
the
Issuing Lender, irrespective of whether or not such Lender or the Issuing Lender
shall have made any demand under this Agreement or any other Loan Document
and
although such obligations of such Borrower may be contingent or unmatured or
are
owed to a branch or office of such Lender or the Issuing Lender different from
the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the Issuing Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the Issuing Lender
or their respective Affiliates may have. Each Lender and the Issuing
Lender agrees to notify the Borrowers and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and
application.
§13. THE
ADMINISTRATIVE AGENT.
§13.1. Appointment
and Authorization.
(a) Each
of the Lenders and the Issuing Lender hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under
the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of
this §13 are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Lender, and no Borrower shall have rights as a third party
beneficiary of any of such provisions.
(b) The
relationship between the Administrative Agent and each of the Lenders is that
of
an independent contractor. The use of the term “Administrative Agent”
is for convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Administrative Agent and each
of the Lenders. Nothing contained in this Credit Agreement nor the
other Loan Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Administrative Agent and any of the
Lenders.
§13.2. Rights
as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender
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and
may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefore to
the
Lenders.
§13.3. Exculpatory
Provisions. The Administrative Agent
shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents. Without limiting the generality of
the foregoing, the Administrative Agent:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any
Loan
Document or applicable law; and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents,
have
any duty to disclose, and shall not be liable for the failure to disclose,
any
information relating to any of the Borrowers or any of their respective
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable for any action taken or not taken
by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under
the
circumstances as provided in §§24 and 11.3 or (ii) in the absence of its own
gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrowers,
a
Lender or the Issuing Lender.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents
of
any certificate, report or other document delivered hereunder or thereunder
or
in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Credit Agreement, any other Loan Document
or any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in §9 or
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elsewhere
herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
§13.4. Reliance
by Administrative Agent. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed, sent or otherwise authenticated by
the
proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been
made
by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the Issuing Lender, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Lender unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Lender prior to the
making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for
the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
§13.5. Delegation
of Duties. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by
or
through their respective Related Parties. The exculpatory provisions
of this §13 shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
§13.6. Resignation
of Administrative Agent. The
Administrative Agent may. at any time give notice of its resignation
to the Lenders, the Issuing Lender and the Borrowers. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right,
in
consultation with the Borrowers, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with
an
office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the Issuing Lender, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent
shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the Issuing
Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative
71
Agent
hereunder, such successor shall succeed to and become vested with all of
the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such
successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this §13 and §14
shall continue in effect for the benefit of such retiring Administrative
Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as Issuing Lender and Swing Line
Lender. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Issuing Lender and Swing Line Lender, (b) the retiring Issuing Lender and Swing
Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Lender shall issue letters of credit in substitution for the Letters
of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuing Lender to effectively assume
the obligations of the retiring Issuing Lender with respect to such Letters
of
Credit.
§13.7.Non-Reliance
on Administrative Agent and Other
Lenders. Each Lender and the Issuing
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made
its
own credit analysis and decision to enter into this Agreement. Each
Lender and the Issuing Lender also acknowledges that it will, independently
and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Credit Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.
§▇▇.▇.▇▇
Other Duties, Etc. Anything herein to
the contrary notwithstanding, none of the Joint Lead Arrangers or Syndication
Agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Credit Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender
or
the Issuing Lender hereunder.
§13.9. Closing
Documentation, Etc. For purposes of
determining compliance with the conditions set forth in §9, each Lender that has
executed this Credit Agreement shall be deemed to have consented to, approved
or
accepted, or to be satisfied with, each document and matter either sent, or
made
available, by the Administrative Agent or the Joint Lead Arrangers to such
Lender for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such Lender,
unless an officer of the Administrative Agent or the Joint Lead Arrangers active
upon the Borrowers’ account shall have
72
received
notice from such Lender prior to the Closing
Date specifying such Lender’s objection thereto and such objection shall not
have been withdrawn by notice to the Administrative Agent or the Joint Lead
Arrangers to such effect on or prior to the Closing Date. The
Administrative Agent will forward to each Lender, promptly after the
Administrative Agent’s receipt thereof, a copy of each notice or other document
furnished to the Administrative Agent for such Lender hereunder;
provided, however, that notwithstanding the foregoing, the
Administrative Agent may furnish to the Revolving Credit Lenders a monthly
summary with respect to Letters of Credit issued hereunder in lieu of copies
of
the related Letter of Credit Applications
§13.10.Payments.
§13.10.1. Payments
to Administrative Agent. A payment by any Borrower to
the Administrative Agent hereunder or any of the other Loan Documents for the
account of any Lender shall constitute a payment to such Lender. The
Administrative Agent agrees promptly to distribute to each Lender such Lender’s
pro rata share of payments received by the Administrative Agent for the
account of such Lenders except as otherwise expressly provided herein or in
any
of the other Loan Documents.
§13.10.2. Distribution
by Administrative Agent. If in the opinion of the
Administrative Agent the distribution of any amount received by it in such
capacity under this Credit Agreement, under the Notes or under any of the other
Loan Documents might involve it in liability, it may refrain from making such
distribution until its right to make such distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed
by
the Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent
its proportionate share of the amount so adjudged to be repaid or shall pay
over
the same in such manner and to such Persons as shall be determined by such
court.
§13.10.3. Delinquent
Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) in the case of a Revolving Credit Lender, to make
available to the Administrative Agent its pro rata share of any
Revolving Credit Loan or to purchase any Letter of Credit Participation in
accordance with the terms hereof or (b) to comply with the provisions of §12
with respect to making dispositions and arrangements with the other Revolving
Credit Lenders where such Lender’s share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share based on all
applicable outstanding Loans and Unpaid Reimbursement Obligations of such
payments, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a
“Delinquent Lender”) and shall be deemed a Delinquent Lender until such
time as such delinquency is satisfied. A Delinquent Lender shall be
deemed to have assigned any and all payments due to it from the Borrowers to
the
remaining nondelinquent Revolving Credit Lenders for application to, and
reduction of, their respective pro rata shares of the Obligation so
affected by such delinquency. The Delinquent Lender hereby authorizes
the Administrative Agent to distribute such payments to the nondelinquent
Revolving Credit Lenders in proportion to their respective pro rata
shares of the Obligations. A Delinquent Lender shall be deemed to
have
73
satisfied
in full a delinquency when and if, as a
result of application of the assigned payments, the Lenders’ respective pro
rata shares of the Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment causing
such delinquency.
§13.11. Holders
of Notes. The Administrative Agent may deem and treat
the payee of any Note or the purchaser of any Letter of Credit Participation
as
the absolute owner or purchaser thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
§13.12. Indemnity. The
Lenders ratably agree hereby to indemnify and hold harmless the Administrative
Agent and its Affiliates from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Administrative Agent or such Affiliate has not been
reimbursed by the Borrowers as required by §14), and liabilities of every nature
and character arising out of or related to this Credit Agreement, the Notes,
or
any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Administrative Agent’s or such Affiliate’s actions
taken hereunder or thereunder, except to the extent that any of the same shall
be directly caused by the Administrative Agent’s or such Affiliate’s willful
misconduct or gross negligence. This §13.12 applies to any Lender
which is also acting as Administrative Agent solely in its capacity as
Administrative Agent and such Lender, in its capacity as a Lender, shall be
liable for its actions and liable to indemnify the Administrative Agent in
the
same manner as any other Lender.
§13.13. Notification
of Defaults and Events of Default. Each Lender hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
§13.13 it shall promptly notify the other Lenders of the existence of such
Default or Event of Default.
§13.14. Administrative
Agent May File Proofs of Claim.
(a) In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial,
administrative or like proceeding or any assignment for the benefit of creditors
relative to the Borrowers, the Administrative Agent (irrespective of whether
the
principal of any Loan, Reimbursement Obligation or Unpaid Reimbursement
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrowers) shall be entitled and empowered, by
intervention in such proceeding, under any such assignment or
otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, Reimbursement Obligations or Unpaid
Reimbursement Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order
to
have the claims of the Lenders and the Administrative Agent (including
any
74
claim
for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and
their
respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under §§4.1 and 14) allowed in such
proceeding or under any such assignment; and
(ii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
(b) Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding or under any such assignment is hereby
authorized by each Lender to make such payments to the Administrative Agent
and,
in the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders, nevertheless to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under §§4.1 and 14.
(c) Nothing
contained herein shall authorize the Administrative Agent to consent to or
accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations owed to such Lender or
the
rights of any Lender or to authorize the Administrative Agent to vote in respect
of the claim of any Lender in any such proceeding or under any such
assignment.
§13.15. Duties
of Syndication Agents and Documentation Agents. Neither
the Syndication Agent nor the Documentation Agents shall have any right, power,
obligation, liability, responsibility or duty under this Credit Agreement other
than those applicable to all Lenders as such. Without limiting the
foregoing, neither the Syndication Agents nor the Documentation Agents shall
have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not
rely, on the Syndication Agent or the Documentation Agents in deciding to enter
into this Credit Agreement or not taking any action hereunder.
§14. EXPENSES
AND INDEMNIFICATION.
§14.1. Expenses. Whether
or not the transactions contemplated herein shall be consummated, the Borrowers
agree to pay (a) the reasonable costs of producing and reproducing this
Credit Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Administrative Agent or any of
the
Lenders (other than taxes based upon the Administrative Agent’s or any Lender’s
net income) on or with respect to the transactions contemplated by this Credit
Agreement (the Borrowers hereby agreeing to indemnify the Administrative Agent
and each Lender with respect thereto), (c) the reasonable fees, expenses
and disbursements of counsel to the Administrative Agent incurred in connection
with the preparation, syndication, administration or interpretation of the
Loan
Documents and other instruments mentioned herein, each closing hereunder, any
amendments, modifications, approvals, consents or waivers hereto or hereunder,
or the cancellation of any Loan Document upon payment in full in cash of all
of
the Obligations or pursuant to any terms of such Loan
75
Document
providing for such cancellation,
(d) the reasonable fees, expenses and disbursements of the Administrative
Agent, the Joint Lead Arrangers, or any of their affiliates incurred by the
Administrative Agent, the Joint Lead Arrangers, or such affiliate in connection
with the preparation, syndication, administration or interpretation of the
Loan
Documents and other instruments mentioned herein, including all title insurance
premiums and surveyor, engineering and appraisal charges, (e) all
reasonable out-of-pocket expenses (including without limitation reasonable
attorneys’ fees and costs, which attorneys may be employees of any Lender or the
Administrative Agent, and reasonable consulting, accounting, appraisal,
investment banking and similar professional fees and charges) incurred by any
Lender or the Administrative Agent in connection with (i) the enforcement
of or preservation of rights under any of the Loan Documents against the
Borrowers or the administration thereof after the occurrence of a Default or
Event of Default and (ii) any litigation, proceeding or dispute whether
arising hereunder or under any of the other Loan Documents, in any way related
to any Lender’s or the Administrative Agent’s relationship with the Borrowers
and (f) all reasonable fees, expenses and disbursements of the Administrative
Agent incurred in connection with the release and termination of liens securing
Indebtedness under the Existing Credit Agreement.
§14.2. Indemnification. The
Borrowers agree to indemnify and hold harmless the Administrative Agent, the
Joint Lead Arrangers, the Lenders and each of their respective affiliates,
shareholders, officers, directors, employees, agents, trustees, advisors and
Administrative Agents (each an “Indemnitee”) from and against any and all
claims, actions and suits whether groundless or otherwise, and from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(a) any actual or proposed use by the Borrowers of the proceeds of any of the
Loans or Letters of Credit, (b) the Borrowers entering into or performing this
Credit Agreement or any of the other Loan Documents or (c) with respect to
the
Borrowers and their respective properties and assets, the violation of any
Environmental Law, the Release or threatened Release of any Hazardous Substances
or any action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to, claims
with
respect to wrongful death, personal injury or damage to property), in each
case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, that no
Indemnitee shall have the right to be indemnified hereunder for any such
liabilities, losses, damages and expenses to the extent incurred as a result
of
such Indemnitee’s gross negligence or willful misconduct. In
litigation, or the preparation therefor, the Lenders and the Administrative
Agent, the Joint Lead Arrangers, and their affiliates shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Borrowers agree to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the Borrowers
under this §14.2 are unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law.
§14.3. Survival. The
covenants contained in this §14 shall survive payment (including payment in
connection with an assignment under §16) or satisfaction in full of all other
Obligations.
76
§15. SURVIVAL
OF COVENANTS, ETC.
Unless
otherwise stated herein, all covenants, agreements, representations and
warranties made herein, in the other Loan Documents or in any documents or
other
papers delivered by or on behalf of the Borrowers pursuant hereto shall be
deemed to have been relied upon by the Lenders and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Lenders of the Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and
shall
continue in full force and effect so long as any amount due under this Credit
Agreement or any Letter of Credit remains outstanding and unpaid or any Lender
has any obligation to make any Loans or issue any Letters of Credit
hereunder. All statements contained in any certificate or other paper
delivered by or on behalf of the Borrowers pursuant hereto or in connection
with
the transactions contemplated hereby shall constitute representations and
warranties by the Borrowers hereunder.
§16. ASSIGNMENTS
AND PARTICIPATION.
(a) Assignments. It
is understood and agreed that each Lender shall have the right to assign at
any
time all or any portion of its Commitment and interests in the risk relating
to
any Revolving Credit Loans and outstanding Letters of Credit to any Person,
provided that: (i) each such assignment shall be in a minimum amount of
$5,000,000 (or, if less, in a minimum amount equal to all of such Lender’s
Commitment and interests in the risk relating to any Revolving Credit Loans
and
outstanding Letters of Credit); (ii) the Administrative Agent and, so long
as no
Event of Default has occurred and is continuing, the Parent, shall have
consented to such assignment, each such consent not to be unreasonably withheld;
provided that the consent of the Administrative Agent and the Parent shall
not
be required, and the minimum assignment amount shall not apply, if the
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund so
long
as such assignment would not result in increased costs to the Borrowers
hereunder; and (iii) the proposed assignee and the assigning Lender execute
and
deliver to the Administrative Agent and the Borrowers hereunder an Assignment
and Acceptance in the form attached hereto as Exhibit D (in each case, an
“Assignment and Acceptance”). Upon the execution and
delivery of such Assignment and Acceptance, (A) to the extent applicable, the
Borrowers, if requested, shall issue to the assignee applicable Notes in the
amount of such assignee’s Commitment, dated the effective date of such
Assignment and Acceptance and otherwise completed in substantially the form
of
the Notes executed and delivered to the Lenders on the Effective Date and,
if
applicable, the assignor shall return to the Borrowers its existing Notes marked
“cancelled”; and (B) the assignee shall pay a processing and recordation fee of
$3,500 to the Administrative Agent; provided that only
one such
fee shall be payable in the event of simultaneous assignments to or by two
or
more Approved Funds.
(b) Participations. Each
Lender shall also have the right to grant participations to one or more banks,
other financial institutions or other entities whose business is to purchase
and
sell loan assets in the normal course (each a “Participant”) in or to all
or any part of any rights or Obligations owing to such Lender; provided
that (i) any such sale or participation shall not affect the rights and duties
of the selling Lender hereunder to the Borrowers and (ii) the only rights
granted to the Participant pursuant to
77
such
participation arrangements with respect to
waivers, amendments or modifications of the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would require consent
by
all Lenders or of the assigning Lender under §§24(a), (b) and (c), as the case
may be, and (iii) any Participant shall be entitled to the benefits of §4.4,
§4.5, §4.9, §4.11 and §13 as if it were a Lender hereunder and (iv) such
participations shall be in a minimum amount of $5,000,000, provided,
however, that no Borrower shall be required to pay any amount which is greater
than such amount that otherwise would have been payable to the Lender which
sold
such participation.
(c) Miscellaneous. Notwithstanding
the foregoing, no assignment, participation or accession shall operate to (i)
except in accordance with §2.11, increase the Total Revolving Credit Commitment
hereunder unless consented to by the Required Lenders or (ii) reduce the
Commitment of any Lender to an amount less than $5,000,000 (or, if less, in
a
minimum amount equal to all of such Lender’s Commitment and interests in the
risk relating to any Revolving Credit Loans and outstanding Letters of Credit),
or (iii) otherwise alter the substantive terms of this Credit
Agreement. Anything contained in this §16 to the contrary
notwithstanding, any Lender may at any time grant a security interest in all
or
any portion of its rights under this Credit Agreement and the other Loan
Documents to secure obligations of such Lender, including without limitation
(a)
any pledge or assignment to secure obligations to any of the twelve Federal
Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341 and
(b) with respect to any Lender that is a Fund, to any lender or any trustee
for,
or any other representative of, holders of obligations owed or securities issued
by such Fund as security for such obligations or securities or any institutional
custodian for such Fund or for such lender; provided that no such grant
shall release such Lender from any of its obligations hereunder, provide any
voting rights hereunder to the secured party thereof, substitute any such
secured party for such Lender as a party hereto or affect any rights or
obligations of the Borrowers or Administrative Agent hereunder. The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(d) Register. On
the date specified in any Assignment and Acceptance or Instrument of Accession
and upon the satisfaction of the other conditions set forth in this §16, such
bank or financial institution shall become a party to this Credit Agreement
and
the other Loan Documents for all purposes of this Credit Agreement and the
other
Loan Documents, and its Commitment shall be as set forth in the register of
Lenders (the “Register”) maintained by the Administrative Agent for the
recordation of the names and addresses of the Lenders and the Commitment
Percentage of and principal amount of the Loans owing to and Letter of Credit
participations purchased by, the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Administrative Agent and the Lenders may treat each
person
78
whose
name is recorded in the Register as a Lender hereunder for all purposes of
this
Credit Agreement. The Register shall be available for inspection by
the Borrowers and the Lenders at any reasonable time and from time to time
upon
reasonable prior notice.
(e) Assignee
or Participant Affiliated with a Borrower. If any assignee Lender
is an Affiliate of any Borrower, then any such assignee Lender shall have no
right to vote as a Lender hereunder or under any of the other Loan Documents
for
purposes of granting consents or waivers or for purposes of agreeing to
amendments or other modifications to any of the Loan Documents or for purposes
of making requests to the Administrative Agent pursuant to §11.1 or §11.2, and
the determination of the Required Lenders shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to such assignee
Lender’s interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of
the Loans or Reimbursement Obligations to a Participant, and such Participant
is
a Borrower or an Affiliate of a Borrower, then such transferor Lender shall
promptly notify the Administrative Agent of the sale of such
participation. Such transferor Lender shall have no right to vote as
a Lender hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making requests
to
the Administrative Agent pursuant to §11.1 or §11.2 to the extent that such
participation is beneficially owned by a Borrower or any Affiliate of a
Borrower, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard
to
the interest of such transferor Lender in the Loans or Reimbursement Obligations
to the extent of such participation.
(f) Special
Purpose Funding Vehicle. Notwithstanding anything to the contrary
contained in this §16, any Lender other than a Lender affiliated with a Borrower
(a “Granting Lender”) may grant to a special purpose funding vehicle (an
“SPV”) of such Granting Lender, identified as such in writing from
time
to time delivered by the Granting Lender to the Administrative Agent and the
Borrowers, the option to provide to the Borrowers all or any part of any Loan
that such Granting Lender would otherwise be obligated to make to the Borrowers
pursuant to this Credit Agreement, provided that (a) nothing herein shall
constitute a commitment to make any Loan by any SPV, (b) the Granting Lender’s
obligations under this Credit Agreement shall remain unchanged, (c) the Granting
Lender shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit
Agreement and (d) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making
of a Loan by an SPV hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by the Granting
Lender. Each party hereto hereby agrees that no SPV shall be liable
for any expense reimbursement, indemnity or similar payment obligation under
this Credit Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Credit Agreement)
that, prior to the date that is one year and one day after the later of (i)
the
payment in full of all outstanding senior indebtedness of any SPV and (ii)
the
Revolving Credit Maturity Date, it will not institute against, or
79
join
any other person in instituting against, such
SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States of
America or any State thereof. In addition, notwithstanding anything
to the contrary contained in this §16, any SPV may (A) with notice to, but
(except as specified below) without the prior written consent of, the Borrowers
or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to its Granting Lender
or
to any financial institutions (consented to by the Administrative Agent and,
so
long as no Default or Event of Default has occurred and is continuing, the
Borrowers, which consents shall not be unreasonably withheld or delayed)
providing liquidity and/or credit facilities to or for the account of such
SPV
to fund the Loans made by such SPV or to support the securities (if any) issued
by such SPV to fund such Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans (other than financial statements
referred to in §5.4 or §6.4) to any rating agency, commercial paper dealer or
provider of a surety, guarantee or credit or liquidity enhancement to such
SPV. In no event shall the Borrowers be obligated to pay to an SPV
that has made a Loan any greater amount than the Borrowers would have been
obligated to pay under this Agreement if the Granting Lender had made such
Loan. An amendment to this §16(f) without the written consent of an
SPV shall be ineffective insofar as it alters the rights and obligations of
such
SPV.
§17. PARTIES
IN INTEREST.
All
the
terms of this Credit Agreement and the other Loan Documents shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto and thereto; provided that the
Borrowers shall not assign or transfer their rights hereunder without the prior
written consent of each Lender.
§18. NOTICES,
ETC.
§18.1. Notices
Generally. Except as otherwise expressly provided in
this Credit Agreement, all notices and other communications made or required
to
be given pursuant to this Credit Agreement or the other Loan Documents shall
be
in writing and shall be delivered in hand, mailed by United States first-class
mail, postage prepaid, or sent by telex or facsimile and confirmed by letter,
addressed as follows:
(a) if
to the Borrowers, at Waste Connections, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Worthing ▇▇▇▇▇▇▇, Executive
Vice-President and Chief Financial Officer, telephone number ▇▇▇-▇▇▇-▇▇▇▇,
telecopy number ▇▇▇-▇▇▇-▇▇▇▇;
(b) if
to the Administrative Agent or Bank of America, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Managing Director, telephone
number ▇▇▇-▇▇▇-▇▇▇▇, telecopy number ▇▇▇-▇▇▇-▇▇▇▇;
or
such
other address for notice as shall have last been furnished in writing to the
Person giving the notice.
80
Any
such
notice or demand shall be deemed to have been duly given or made and to have
become effective (a) if delivered by hand to a responsible officer of the party
to which it is directed, at the time of the receipt thereof by such officer,
(b)
if sent by registered or certified first-class mail, postage prepaid, five
Business Days after the posting thereof, (c) if sent by telex or cable, at
the
time of the dispatch thereof, if in normal business hours in the country of
receipt, or otherwise at the opening of business on the following Business
Day,
and (d) if sent by facsimile, when transmitted, confirmation
received.
§18.2. Electronic
Communications. Notices and other communications to the
Lenders and the Issuing Lender hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites,
such as Intralinks) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the
Issuing Lender pursuant to §3 if such Lender or the Issuing Lender, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such §3 by electronic communication. The
Administrative Agent or the Borrowers may, in their discretion, agree to accept
notices and other communications to them hereunder by electronic communications
pursuant to procedures approved by them, provided that approval of such
procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise prescribes,
(i) notices and other communications sent to an e-mail address shall be
deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that
if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next business day for the recipient,
and (ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the
website address therefor.
§18.3.The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM
THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrowers, any Lender, the Issuing Lender or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender,
81
the
Issuing Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct
or
actual damages).
§18.4.Change
of Address, Etc. Each Borrower, the
Administrative Agent and the Issuing Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice
to
the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by
notice to the Borrowers, the Administrative Agent and the Issuing
Lender. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record
(i) an effective address, contact name, telephone number, telecopier number
and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf
of
such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in
order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information
with respect to the Borrowers or its securities for purposes of United States
Federal or state securities laws.
§▇▇.▇.▇▇▇▇▇▇▇▇
by Administrative Agent, Issuing Lender and
Lenders. The Administrative Agent, the
Issuing Lender and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan and Letter of Credit Requests) purportedly
given by or on behalf of any Borrower even if (i) such notices were not made
in
a manner specified herein, were incomplete or were not preceded or followed
by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify the Administrative Agent, the
Issuing Lender, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of any
Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
§19. TREATMENT
OF CERTAIN CONFIDENTIAL INFORMATION.
Each
of
the Administrative Agent, the Lenders and the Issuing Lender agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom
such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Credit Agreement or any other Loan Document or the
82
enforcement
of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those
of
this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Credit Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to a Borrower and
its
obligations, (g) with the consent of the Borrowers or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach
of
this Section or (y) becomes available to the Administrative Agent, any Lender,
the Issuing Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrowers.
For
purposes of this Section, “Information” means all information received
from the Borrowers or any of their Subsidiaries relating to the Borrowers or
any
of their Subsidiaries or any of their respective businesses, other than any
such
information that is available to the Administrative Agent, any Lender or the
Issuing Lender on a nonconfidential basis prior to disclosure by the Borrowers
or any their Subsidiaries. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised
the
same degree of care to maintain the confidentiality of such Information as
such
Person would accord to its own confidential information.
§19.1. Prior
Notification. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative Agent
shall, prior to disclosure thereof, notify the Borrowers of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) or pursuant to legal process.
§19.2. Other. In
no event shall any Lender or the Administrative Agent be obligated or required
to return any materials furnished to it or any Financial Affiliate by the
Borrowers. The obligations of each Lender under this §19 shall
supersede and replace the obligations of such Lender under any confidentiality
letter in respect of this financing signed and delivered by such Lender to
the
Borrowers prior to the date hereof and shall be binding upon any assignee of,
or
purchaser of any participation in, any interest in any of the Loans or
Reimbursement Obligations from any Lender.
§20. MISCELLANEOUS.
The
rights and remedies herein expressed are cumulative and not exclusive of any
other rights which the Lenders or Administrative Agent would otherwise
have. The captions in this Credit Agreement are for convenience of
reference only and shall not define or limit the provisions
hereof. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, but all
of
which together shall constitute one instrument. In proving this
Credit Agreement it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
Delivery by facsimile by any of the parties hereto of an executed counterpart
hereof or of any Loan Document or of any amendment or waiver hereto or thereto
shall be as effective as an
83
original
executed counterpart hereof or thereof or of
such amendment or waiver and shall be considered a representation that an
original executed counterpart hereof or thereof or such amendment or waiver,
as
the case may be, will be delivered.
§21. ENTIRE
AGREEMENT, ETC.
The
Loan
Documents and any other documents executed in connection herewith or therewith
(including the Fee Letter) express the entire understanding of the parties
with
respect to the transactions contemplated hereby. Neither this Credit
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in §24. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent
thereon. No course of dealing or omission on the part of the
Administrative Agent or any Lender in exercising any right shall operate as
a
waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon the Borrowers shall entitle the Borrowers to other or further notice
or demand in similar or other circumstances.
§22. WAIVER
OF JURY TRIAL.
(a) EACH
OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT
TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED
TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWERS (i) CERTIFY THAT NO REPRESENTATIVE,
ADMINISTRATIVE AGENT OR ATTORNEY OF ANY LENDER OR THE ADMINISTRATIVE AGENT
HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE ADMINISTRATIVE
AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (ii) ACKNOWLEDGE THAT THE ADMINISTRATIVE AGENT AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS TO WHICH THEY ARE A PARTY BECAUSE OF, AMONG OTHER THINGS, THE
BORROWERS’ WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(b) CALIFORNIA
JUDICIAL REFERENCE.
IF ANY ACTION OR PROCEEDING IS FILED IN A COURT OF
THE
STATE OF CALIFORNIA BY OR AGAINST ANY PARTY HERETO IN CONNECTION WITH ANY OF
THE
TRANSACTIONS CONTEMPLATED BY THIS CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT,
(A) THE COURT SHALL, AND IS HEREBY DIRECTED TO, MAKE A GENERAL REFERENCE
PURSUANT TO
84
CALIFORNIA
CODE OF CIVIL PROCEDURE SECTION
638 TO A REFEREE (WHO SHALL BE A SINGLE ACTIVE OR RETIRED JUDGE) TO HEAR AND
DETERMINE ALL OF THE ISSUES IN SUCH ACTION OR PROCEEDING (WHETHER OF FACT OR
OF
LAW) AND TO REPORT A STATEMENT OF DECISION, PROVIDED
THAT AT THE OPTION OF ANY PARTY TO SUCH PROCEEDING, ANY SUCH ISSUES PERTAINING
TO A “PROVISIONAL REMEDY” AS DEFINED IN CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION 1281.8 SHALL BE HEARD AND DETERMINED BY THE COURT, AND (B) WITHOUT
LIMITING THE GENERALITY OF §14.1, THE BORROWERS SHALL BE SOLELY RESPONSIBLE TO
PAY ALL FEES AND EXPENSES OF ANY REFEREE APPOINTED IN SUCH ACTION OR
PROCEEDING.
§23. GOVERNING
LAW.
THIS
CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, EACH
OF
THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE
LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR
CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401 AND
§5-1402). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS
SPECIFIED IN §18. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
§▇▇. CONSENTS,
AMENDMENTS, WAIVERS, ETC.
Except
in
connection with an increase in the Total Revolving Credit Commitment pursuant
to
§2.11 and as set forth in subsections (a) and (b) below, any consent or approval
required or permitted by this Credit Agreement to be given by the Lenders may
be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrowers of any terms of this Credit
Agreement, the other Loan Documents or such other instrument or the continuance
of any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrowers and the written consent of the
Required Lenders. Notwithstanding the foregoing, no amendment, modification
or
waiver shall be effective:
85
(a) without
the written consent of the Borrowers and each Lender directly affected
thereby:
(i) reduce
or forgive the principal amount of any Revolving Credit Loans or Reimbursement
Obligations, or reduce the rate of interest on the Revolving Credit Loans (other
than waiver of application of the rate of interest for overdue amounts set
forth
in §4.6) or the amount of the Commitment Fee or Letter of Credit
Fees;
(ii) increase
the amount of such Revolving Lender’s Commitment, or extend the expiration date
of such Revolving Credit Commitment;
(iii) postpone
or extend the Revolving Credit Loan Maturity Date or any other regularly
scheduled dates for payments of principal of, or interest on, the Loans or
Reimbursement Obligations or any Fees or other amounts payable to such Lender
(it being understood that any vote to rescind any acceleration made pursuant
to
§11.1 of amounts owing with respect to the Loans and other Obligations shall
require only the approval of the Required Lenders);
(iv) amend
or modify the provisions of §4.13 (Concerning Joint and Several Liability of the
Borrowers);
(b) without
the written consent of all of the Lenders, amend or waive this §24 or the
definition of “Required Lenders”;
(c) without
the written consent of the Administrative Agent, amend or waive §§2.10 or 13,
the amount or time of payment of any fees payable for the Administrative Agent’s
account or any Letter of Credit Fees payable for the Administrative Agent’s
account or any other provision applicable to the Administrative
Agent.
No
waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial
thereto. No notice to or demand upon the Borrowers shall entitle the
Borrowers to other or further notice or demand in similar or other
circumstances.
§25. BORROWERS’
REPRESENTATIVE.
Each
of
the Borrowers hereby irrevocably appoints the Parent as such Borrower’s
representative and agent for all purposes under this Credit Agreement and
authorizes the Parent, on behalf of each such Borrower and in each such
Borrower’s name to give and receive all notices and documents, certificates and
instruments to be given or received by the Borrowers or any of them in
connection with this Credit Agreement and the other Loan Documents, including
receipt of service of legal process in connection with any suit or proceeding
arising under, or in connection with the transactions contemplated by this
Credit Agreement, delivery of Loan and Letter of Credit Requests, Conversion
Requests, Compliance Certificates and requests for waivers and amendments and
to
acknowledge or consent to any amendments, waivers or assignments.
86
§26. SEVERABILITY.
The
provisions of this Credit Agreement are severable and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part
in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall
not
in any manner affect such clause or provision in any other jurisdiction, or
any
other clause or provision of this Credit Agreement in any
jurisdiction.
§27. NO
ADVISORY OR FIDUCIARY RESPONSIBILITY.
In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of
any
other Loan Document), each Borrower acknowledges and agrees, and acknowledges
its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Credit Agreement provided by the Administrative Agent and the
Joint Lead Arrangers are arm’s-length commercial transactions between each
Borrower and its respective Affiliates, on the one hand, and the Administrative
Agent and the Joint Lead Arrangers, on the other hand, (B) each Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) each Borrower is capable of evaluating,
and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent and the Joint Lead Arrangers each is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary
for any Borrower or any of its respective Affiliates, or any other Person and
(B) neither the Administrative Agent nor any Joint Lead Arranger has any
obligation to any Borrower or any of its respective Affiliates with respect
to
the transactions contemplated hereby except those obligations expressly set
forth herein and in the other Loan Documents; and (iii) the Administrative
Agent
and the Joint Lead Arrangers and their respective Affiliates may be engaged
in a
broad range of transactions that involve interests that differ from those of
the
Borrowers and their respective Affiliates, and neither the Administrative Agent
nor any Joint Lead Arranger has any obligation to disclose any of such interests
to the Borrowers or any of their respective Affiliates. To the
fullest extent permitted by law, each Borrower hereby waives and releases any
claims that it may have against the Administrative Agent and the Joint Lead
Arrangers with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated
hereby.
§28. USA
PATRIOT ACT.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot
Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of
each Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Borrower in accordance
with the Act.
[Remainder
of Page Left Blank Intentionally]
87
IN
WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
THE
BORROWERS:
WASTE
CONNECTIONS, INC.
AMERICAN
DISPOSAL COMPANY, INC.
AMERICAN
SANITARY SERVICE, INC.
ARROW
SANITARY SERVICE, INC.
BITUMINOUS
RESOURCES, INC.
BROADACRE
LANDFILL, INC.
▇▇▇▇▇▇
COUNTY LANDFILL, INC.
CAMINO
REAL ENVIRONMENTAL CENTER, INC.
COLD
CANYON LAND FILL, INC.
COMMUNITY
REFUSE DISPOSAL INC.
CONTRACTORS
WASTE SERVICES, INC.
CORRAL
DE ▇▇▇▇▇▇ LAND COMPANY
▇▇▇▇▇
TRANSFER & RECYCLING, INC.
▇.
▇. DISPOSAL CO., INC.
DENVER
REGIONAL LANDFILL, INC.
ELKO
SANITATION COMPANY
EMPIRE
DISPOSAL, INC.
EVERGREEN
DISPOSAL, INC.
ENVIRONMENTAL
TRUST COMPANY
▇▇▇▇▇▇
COUNTY LANDFILL, INC.
FRANK’S
SERVICE, INC.
G
& P DEVELOPMENT, INC.
HIGH
DESERT SOLID WASTE FACILITY, INC.
(F/K/A
RHINO SOLID WASTE,
INC.)
ISLAND
DISPOSAL, INC.
J
BAR J LAND, INC.
KELLY’S
HAUL AWAY, INC.
LAKESHORE
DISPOSAL, INC.
LEALCO,
INC.
LES’
COUNTY SANITARY, INC.
MADERA
DISPOSAL SYSTEMS, INC.
MAMMOTH
DISPOSAL COMPANY
MANAGEMENT
ENVIRONMENTAL NATIONAL, INC.
▇▇▇▇▇
COUNTY GARBAGE CO., INC.
MDSI
OF LA, INC.
MILLENNIUM
WASTE INCORPORATED
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
88
THE
BORROWERS:
MISSION
COUNTRY DISPOSAL
MORRO
BAY GARBAGE SERVICE
▇▇▇▇▇▇’▇
DISPOSAL COMPANY, INC.
NEBRASKA
ECOLOGY SYSTEMS, INC.
▇▇▇▇▇▇
COUNTY LANDFILL, INC.
NORTHERN
PLAINS DISPOSAL, INC.
NORTHWEST
CONTAINER SERVICES, INC.
OKLAHOMA
CITY WASTE DISPOSAL, INC.
OKLAHOMA
LANDFILL HOLDINGS, INC.
OSAGE
LANDFILL, INC.
PSI
ENVIRONMENTAL SERVICES, INC.
PSI
ENVIRONMENTAL SYSTEMS, INC.
RED
CARPET LANDFILL, INC.
RH
FINANCIAL CORPORATION
RURAL
WASTE MANAGEMENT, INC.
SAN
▇▇▇▇ GARBAGE COMPANY
▇▇▇▇▇
SOLID WASTE DISPOSAL COMPANY
SEDALIA
LAND COMPANY
SOUTH
COUNTY SANITARY SERVICE, INC.
SOUTHERN
PLAINS DISPOSAL, INC.
TACOMA
RECYCLING COMPANY, INC.
TENNESSEE
WASTE MOVERS, INC.
WASCO
COUNTY LANDFILL, INC.
WASTE
CONNECTIONS MANAGEMENT SERVICES, INC.
WASTE
CONNECTIONS OF ALABAMA, INC.
WASTE
CONNECTIONS OF ARIZONA, INC.
WASTE
CONNECTIONS OF ARKANSAS, INC.
WASTE
CONNECTIONS OF CALIFORNIA, INC.
(F/K/A
▇▇▇▇▇▇ DISPOSAL SERVICE,
INC.)
WASTE
CONNECTIONS OF COLORADO, INC.
WASTE
CONNECTIONS OF IDAHO, INC.
(F/K/A
MOUNTAIN ▇▇▇▇ ENVIRONMENTAL
SERVICES, INC.)
WASTE
CONNECTIONS OF ILLINOIS, INC.
WASTE
CONNECTIONS OF IOWA, INC.
(F/K/A
▇▇▇▇▇▇ WASTE SYSTEMS
INC.)
WASTE
CONNECTIONS OF KANSAS, INC.
WASTE
CONNECTIONS OF KENTUCKY, INC.
WASTE
CONNECTIONS OF MINNESOTA, INC.
(F/K/A
▇▇▇▇▇▇’▇ SANITARY SERVICE,
INC.)
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
89
THE
BORROWERS:
WASTE
CONNECTIONS OF MISSISSIPPI, INC.
(F/K/A
LIBERTY WASTE SERVICES OF
MISSISSIPPI HOLDINGS, INC.) WASTE CONNECTIONS OF MISSOURI,
INC.
WASTE
CONNECTIONS OF MONTANA, INC.
WASTE
CONNECTIONS OF NEBRASKA, INC.
WASTE
CONNECTIONS OF NEW MEXICO, INC.
WASTE
CONNECTIONS OF OKLAHOMA, INC.
(F/K/A
B &
B SANITATION, INC.)
WASTE
CONNECTIONS OF OREGON, INC.
(SUCCESSOR
BY MERGER TO ENVIRONMENTAL
WASTE SYSTEMS, INC.AND F/K/A SWEET HOME SANITATION SERVICE,
INC.)
WASTE
CONNECTIONS OF SOUTH DAKOTA, INC.
(F/K/A
▇▇▇▇▇ ENTERPRISES,
INC.)
WASTE
CONNECTIONS OF TENNESSEE, INC.
(F/K/A
LIBERTY WASTE SERVICES OF
TENNESSEE HOLDINGS, INC.)
WASTE
CONNECTIONS OF THE CENTRAL VALLEY, INC.
(F/K/A/
KINGSBURG DISPOSAL SERVICE,
INC.)
WASTE
CONNECTIONS OF UTAH, INC.
WASTE
CONNECTIONS OF WASHINGTON, INC.
WASTE
CONNECTIONS OF WYOMING, INC.
WASTE
CONNECTIONS TRANSPORTATION COMPANY, INC.
WASTE
SERVICES OF N.E. MISSISSIPPI, INC.
WCI
OF GEORGIA, INC.
WEST
BANK ENVIRONMENTAL SERVICES, INC.
WEST
COAST RECYCLING AND TRANSFER, INC.
WYOMING
ENVIRONMENTAL SERVICES, INC.
WYOMING
ENVIRONMENTAL SYSTEMS, INC.
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
COLUMBIA
RESOURCE CO., ▇.▇.
▇▇▇▇▇▇-BUTTES
LIMITED PARTNERSHIP
|
By:
|
Management
Environmental National, Inc.,
|
|
|
its
General Partner
|
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
90
THE
BORROWERS:
EL
PASO DISPOSAL, LP
|
By:
|
Waste
Connections of Texas, LLC,
|
|
|
its
General Partner
|
|
|
By:
|
Waste
Connections Management Services,
Inc.,
|
|
|
its
Manager
|
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
GLACIER
DISPOSAL, L.L.C.
▇▇▇▇▇▇
▇▇▇▇▇ LANDFILL, L.L.C.
SUNRISE
SANITATION, LLC
WASTE
CONNECTIONS OF MISSISSIPPI DISPOSAL SERVICES, LLC
(F/K/ASANTEK
ENVIRONMENTAL OF MISSISSIPPI, L.L.C.)
WASTE
CONNECTIONS OF ▇▇▇▇▇▇▇, LLC
(F/K/A
WASTE SERVICES OF MISSISSIPPI,
LLC)
|
By:
|
Waste
Connections, Inc.,
|
|
|
its
Managing Member
|
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
WASTE
CONNECTIONS OF TEXAS, LLC
|
By:
|
Waste
Connections Management Services,
Inc.,
|
|
|
its
Manager
|
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
THE
BORROWERS:
HORIZON
PROPERTY MANAGEMENT, LLC
RAILROAD
AVENUE DISPOSAL, LLC
▇▇▇▇▇
WASTE SERVICES, LLC
THE
TRASH COMPANY, LLC
WASTE
SOLUTIONS GROUP OF SAN ▇▇▇▇▇▇, LLC
|
By:
|
Waste
Connections, Inc.
|
|
|
its
Manager
|
By: /s/
Worthing ▇. ▇▇▇▇▇▇▇
Name: Worthing
▇. ▇▇▇▇▇▇▇
Title: Chief
Financial Officer
BANK
OF AMERICA, N.A,
as
Administrative Agent
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇
Managing
Director
THE
LENDERS:
BANK
OF AMERICA, N.A,
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Managing Director
THE
LENDERS:
JPMORGAN
CHASE BANK, N.A.
By:
/s/ H. ▇▇▇▇▇ ▇▇▇▇▇
Name:
H.
▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President
THE
LENDERS:
DEUTSCHE
BANK TRUST COMPANY AMERICAS
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
By: /s/
▇▇▇▇ ▇. ▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇
Title:
Vice President
THE
LENDERS:
▇▇▇▇▇
FARGO BANK, N.A.
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Vice President
THE
LENDERS:
UNION
BANK OF CALIFORNIA N.A.
By: /s/
▇▇▇▇ Deutsch
Name:
▇▇▇▇ Deutsch
Title:
Vice President
A/72194026.12
THE
LENDERS:
U.S.
BANK NATIONAL ASSOCIATION
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
THE
LENDERS:
COMMERZBANK
AG, NEW YORK
AND
GRAND CAYMAN BRANCHES
By: /s/
Christian Jagenberg
Name:
Christian Jagenberg
Title:
SVP & Manager
By: /s/
Yangling J. Si
Name:
Yangling J. Si
Title:
Vice President
THE
LENDERS:
KEYBANK
NATIONAL ASSOCIATION
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
THE
LENDERS:
CITICORP
NORTH AMERICA, INC.
By: /s/
▇▇▇▇▇▇ ▇. ▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇
Title:
Vice President
THE
LENDERS:
PNC
BANK, NATIONAL ASSOCIATION
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President
THE
LENDERS:
SUMITOMO
MITSUI BANKING CORPORATION
By: /s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General
Manager
THE
LENDERS:
BANK
OF THE WEST
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
THE
LENDERS:
COBANK,
ACB
By: /s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Assistant Corporate Secretary
THE
LENDERS:
PEOPLE'S
UNITED BANK
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Vice
President