EXECUTION COPY
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CREDIT AGREEMENT
dated as of
July 21, 1999
among
ALLIED WASTE INDUSTRIES, INC.,
ALLIED WASTE NORTH AMERICA, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
CITICORP USA, INC.,
as Syndication Agent
and
DLJ CAPITAL FUNDING, INC.,
and
CREDIT SUISSE FIRST BOSTON
as Documentation Agents
---------------------------
CHASE SECURITIES INC. and XXXXXXX XXXXX XXXXXX INC.
as Arrangers
CHASE SECURITIES INC.,
as Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I Definitions
SECTION 1.01. Defined Terms....................................................................2
SECTION 1.02. Classification of Loans and Borrowings..........................................38
SECTION 1.03. Terms Generally.................................................................39
SECTION 1.04. Accounting Terms; GAAP. ........................................................39
ARTICLE II The Credits
SECTION 2.01. Commitments.....................................................................39
SECTION 2.02. Loans and Borrowings............................................................40
SECTION 2.03. Requests for Borrowings.........................................................40
SECTION 2.04. Swingline Loans.................................................................41
SECTION 2.05. Letters of Credit...............................................................42
SECTION 2.06. Funding of Borrowings...........................................................47
SECTION 2.07. Interest Elections..............................................................47
SECTION 2.08. Termination and Reduction of Commitments........................................48
SECTION 2.09. Repayment of Loans; Evidence of Debt............................................49
SECTION 2.10. Amortization of Term Loans......................................................50
SECTION 2.11. Prepayment of Loans.............................................................53
SECTION 2.12. Fees............................................................................55
SECTION 2.13. Interest........................................................................56
SECTION 2.14. Alternate Rate of Interest......................................................56
SECTION 2.15. Increased Costs.................................................................57
SECTION 2.16. Break Funding Payments..........................................................58
SECTION 2.17. Taxes...........................................................................58
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs..................................................60
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..................................62
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers............................................................63
SECTION 3.02. Authorization...................................................................63
SECTION 3.03. Enforceability..................................................................64
SECTION 3.04. Governmental Approvals..........................................................64
SECTION 3.05. Financial Statements............................................................65
SECTION 3.06. No Material Adverse Change......................................................65
SECTION 3.07. Title to Properties; Possession Under Leases....................................65
SECTION 3.08. Subsidiaries; Other Equity Investments..........................................66
SECTION 3.09. Litigation; Compliance with Laws................................................66
SECTION 3.10. Agreements......................................................................66
SECTION 3.11. Federal Reserve Regulations.....................................................67
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act.........................................................67
SECTION 3.13. Tax Returns.....................................................................67
SECTION 3.14. No Material Misstatements.......................................................67
SECTION 3.15. Employee Benefit Plans..........................................................67
SECTION 3.16. Environmental Matters...........................................................68
SECTION 3.17. Insurance.......................................................................69
SECTION 3.18. Labor Matters...................................................................69
SECTION 3.19. Solvency........................................................................69
SECTION 3.20. Intellectual Property...........................................................69
SECTION 3.21. Year 2000.......................................................................70
SECTION 3.22. Senior Indebtedness.............................................................70
SECTION 3.23. Security Interests..............................................................70
SECTION 3.24. Tranche D Representations and Warranties........................................71
ARTICLE IV Conditions
SECTION 4.01. Effective Date..................................................................71
SECTION 4.02. Each Credit Event...............................................................76
SECTION 4.03. Determinations Under Section 4.01...............................................76
SECTION 4.04. Modification of Schedules.......................................................76
ARTICLE V-A Affirmative Covenants
SECTION 5.01A. Existence; Businesses and Properties...........................................76
SECTION 5.02A. Insurance......................................................................77
SECTION 5.03A. Obligations and Taxes..........................................................77
SECTION 5.04A. Financial Statements, Reports, Etc.............................................78
SECTION 5.05A. Litigation and Other Notices...................................................80
SECTION 5.06A. Employee Benefits..............................................................80
SECTION 5.07A. Maintaining Records; Access to Properties
and Inspections.....................................................80
SECTION 5.08A. Environmental Laws.............................................................81
SECTION 5.09A. Preparation of Environmental Reports...........................................81
SECTION 5.10A. Further Assurances.............................................................82
SECTION 5.11A. Compliance with Terms of Leaseholds............................................83
SECTION 5.12A. Performance of Material Agreements.............................................84
SECTION 5.13A. Inactive Subsidiaries..........................................................84
SECTION 5.14A. Year 2000......................................................................84
SECTION 5.15A. Information Regarding Collateral...............................................84
SECTION 5.16A. Casualty and Condemnation......................................................84
SECTION 5.17A. Compliance with Laws...........................................................84
SECTION 5.18A. Use of Proceeds and Letters of Credit..........................................85
SECTION 5.19A. Interest Rate Protection.......................................................85
SECTION 5.20A. Asset Sales....................................................................85
ARTICLE V-B Tranche D Affirmative Covenants
SECTION 5.01B. Existence; Businesses and Properties...........................................85
SECTION 5.02B. Insurance......................................................................86
SECTION 5.03B. Obligations and Taxes..........................................................86
SECTION 5.04B. Financial Statements, Reports, Etc.............................................87
SECTION 5.05B. Litigation and Other Notices...................................................88
SECTION 5.06B. Employee Benefits..............................................................89
SECTION 5.07B. Maintaining Records; Access to Properties and
Inspections.........................................................89
SECTION 5.08B. Environmental Laws.............................................................89
SECTION 5.09B. Preparation of Environmental Reports...........................................90
SECTION 5.10B. Compliance with Terms of Leaseholds............................................90
SECTION 5.11B. Performance of Material Agreements.............................................91
SECTION 5.12B. Inactive Subsidiaries..........................................................91
SECTION 5.13B. Year 2000......................................................................91
SECTION 5.14B. Compliance with Laws...........................................................91
SECTION 5.15B. Use of Proceeds and Letters of Credit..........................................91
SECTION 5.16B. Interest Rate Protection.......................................................91
SECTION 5.17B. Asset Sales....................................................................91
SECTION 5.18B. Further Assurances to the Tranche D Lenders....................................92
SECTION 5.19B. Additional Permitted Subordinated Debt.........................................92
SECTION 5.20B. Preliminary Offering Memorandum................................................92
ARTICLE VI-A Negative Covenants
SECTION 6.01A. Indebtedness; Certain Equity Securities........................................93
SECTION 6.02A. Liens..........................................................................95
SECTION 6.03A. No Other Negative Pledge.......................................................97
SECTION 6.04A. Sale and Lease-Back Transactions...............................................97
SECTION 6.05A. Investments, Loans, Guarantees and
Acquisitions........................................................98
SECTION 6.06A. Mergers, Consolidations, Sales of Assets and
Acquisitions.......................................................100
SECTION 6.07A. Hedging Agreements............................................................101
SECTION 6.08A. Restricted Payments; Certain Payments of
Indebtedness.......................................................101
SECTION 6.09A. Transactions with Affiliates..................................................103
SECTION 6.10A. Business of Allied Waste, Borrower and
Subsidiaries.......................................................103
SECTION 6.11A. Other Indebtedness and Agreements.............................................104
SECTION 6.12A. Amendment of Material Documents...............................................104
SECTION 6.13A. Interest Coverage Ratio.......................................................105
SECTION 6.14A. Leverage Ratio................................................................105
SECTION 6.15A. Capital Expenditure...........................................................105
SECTION 6.16A. Designation of Unrestricted Subsidiaries......................................105
ARTICLE VI-B Tranche D Negative Covenants
SECTION 6.01B. Indebtedness; Certain Equity Securities.......................................106
SECTION 6.02B. Liens.........................................................................109
SECTION 6.03B. No Other Negative Pledge......................................................110
SECTION 6.04B. Sale and Lease-Back Transactions..............................................111
SECTION 6.05B. Investments, Loans, Guarantees and
Acquisitions.......................................................111
SECTION 6.06B. Mergers, Consolidations, Sales of Assets
and Acquisitions...................................................112
SECTION 6.07B. Hedging Agreements............................................................113
SECTION 6.08B. Restricted Payments; Certain Payments of
Indebtedness.......................................................113
SECTION 6.09B. Transactions with Affiliates..................................................114
SECTION 6.10B. Business of Allied Waste, Borrower and
Subsidiaries.......................................................115
SECTION 6.11B. Other Indebtedness and Agreements.............................................115
SECTION 6.12B. Designation of Unrestricted Subsidiaries......................................116
SECTION 6.13B. Asset Disposition.............................................................116
SECTION 6.14B. Limitation on Senior Subordinated
Indebtedness.......................................................117
SECTION 6.15B. Capital Expenditure...........................................................117
ARTICLE VII Events of Default; Right To Cure
SECTION 7.01. Events of Default..............................................................118
SECTION 7.02. Borrower's Right to Cure.......................................................123
ARTICLE VIII The Administrative Agent
ARTICLE IX Miscellaneous
SECTION 9.01. Notices........................................................................126
SECTION 9.02. Waivers; Amendments............................................................126
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................................129
SECTION 9.04. Successors and Assigns.........................................................130
SECTION 9.05. Survival.......................................................................134
SECTION 9.06. Counterparts; Integration; Effectiveness.......................................134
SECTION 9.07. Severability...................................................................134
SECTION 9.08. Right of Setoff................................................................135
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process.................................................135
SECTION 9.10. WAIVER OF JURY TRIAL...........................................................135
SECTION 9.11. Headings.......................................................................136
SECTION 9.12. Confidentiality................................................................136
SECTION 9.13. Interest Rate Limitation.......................................................136
SECTION 9.14. Exchange of Loans for Exchange Notes..........................................137
SECTION 9.15. Registration Rights............................................................137
ARTICLE X Subordination
SECTION 10.01. Agreement To Subordinate......................................................138
SECTION 10.02. Liquidation, Dissolution, Bankruptcy..........................................138
SECTION 10.03. Default on Senior Indebtedness................................................138
SECTION 10.04. Acceleration of Payment of Notes..............................................139
SECTION 10.05. When Distributions Must Be Paid Over..........................................139
SECTION 10.06. Subrogation...................................................................139
SECTION 10.07. Relative Rights...............................................................139
SECTION 10.08. Subordination May Not Be Impaired by
Borrower...........................................................140
SECTION 10.09. Rights of Administrative Agent................................................140
SECTION 10.10. Distribution or Notice to Representative......................................140
SECTION 10.11. Article X Not To Prevent Tranche D Events
of Default or Limit Right To Accelerate............................140
SECTION 10.12. Administrative Agent Entitled To Rely.........................................140
SECTION 10.13. Administrative Agent To Effectuate
Subordination......................................................141
SECTION 10.14. Administrative Agent Not Fiduciary for
Holders of Senior Indebtedness.....................................141
SECTION 10.15. Reliance by Holders of Senior Indebtedness
on Subordination Provisions........................................141
vii
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.07 -- Landfills
Schedule 3.08 -- Subsidiaries; Equity Investments;
Inactive Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.15 -- Employee Benefit Plans
Schedule 3.16 -- Environmental Matters
Schedule 3.17 -- Insurance
Schedule 5.13 -- Inactive Subsidiaries
Schedule 5.20 -- Planned Asset Sales
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02(I) -- Existing Liens
Schedule 6.02(II) -- Existing Liens To Be Released
Schedule 6.05 -- Investments
Schedule 6.08 -- Required Joint Venture Restricted Payments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit A-2 -- Form of Tranche D Assignment and
Acceptance
Exhibit B -- Intentionally Omitted
Exhibit C -- Form of Collateral Trust Agreement
Exhibit D -- Form of Exchange Note Indenture
Exhibit E-1 -- Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit E-2 -- Form of Subordinated Indemnity,
Subrogation and Contribution
Agreement
Exhibit F -- Form of Non-Shared Collateral Pledge
Agreement
Exhibit G -- Form of Non-Shared Collateral
Security Agreement
Exhibit H -- Form of Parent Guarantee Agreement
Exhibit I-1 -- Form of Non-Shared Collateral
Perfection Certificate
Exhibit I-2 -- Form of Shared Collateral Perfection
Certificate
Exhibit J -- Form of Shared Collateral Pledge
Agreement
Exhibit K -- Form of Shared Collateral Security
Agreement
Exhibit L -- Form of Subordinated Parent
Guarantee Agreement
Exhibit M -- Form of Subordinated Subsidiary
Guarantee Agreement
Exhibit N -- Form of Subsidiary
Guarantee Agreement
Exhibit O-1 -- Form of Legal Opinion of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx
Exhibit O-2 -- Form of Legal Opinion of Xxxxx Xxxx
Exhibit P -- Form of Portfolio Exemption
Certificate
CREDIT AGREEMENT dated as of July 21, 1999,
among ALLIED WASTE INDUSTRIES, INC., ALLIED WASTE
NORTH AMERICA, INC., the LENDERS party hereto, and
THE CHASE MANHATTAN BANK, as Administrative Agent and
Collateral Agent.
Pursuant to a Merger Agreement dated as of March 7, 1999
(together with the exhibits and schedules thereto, the "Merger Agreement"),
among Allied Waste, MergerCo and BFI (such term and each other capitalized term
used but not defined in this preamble having the meaning given it in Article I),
MergerCo will be merged with and into BFI (the "Merger") in a transaction in
which the outstanding shares of common stock of BFI will be converted into the
right to receive cash consideration of $45 per share. Upon consummation of the
Merger, Allied Waste will own, directly or indirectly through wholly owned
Subsidiaries, 100% of the capital stock of BFI and Allied Waste will directly
own 100% of the capital stock of AWNA. In connection with the consummation of
the Merger, (a) AWNA will obtain the credit facilities provided for hereunder,
(b) AWNA will (i) issue up to $2,500,000,000 of its Senior Subordinated Notes in
a public offering or in a Rule 144A or other private placement and (ii) to the
extent AWNA has not issued $2,500,000,000 of its Senior Subordinated Notes on or
before the Effective Date, borrow Tranche D Term Loans hereunder in an aggregate
principal amount equal to any shortfall, minus the amount of Net Available
Proceeds from Asset Sales or issuances of Equity Interests that the Borrower
anticipates will be applied to reductions of the Tranche D Commitments or
Tranche D Term Loans pursuant to and in accordance with Section 2.10(f) or (j),
(c) all the existing commercial paper of BFI and all indebtedness under the BFI
Credit Facility (other than Existing Letters of Credit) will be repaid in full,
(d) all the indebtedness under the Existing Credit Agreement of AWNA will be
repaid in full, (e) substantially all the other existing long-term indebtedness
of AWNA and BFI will remain outstanding after the Merger and (f) the Sponsors
will purchase the Sponsor Preferred Stock from Allied Waste for cash
consideration of $1,000,000,000.
AWNA has requested the Lenders to extend credit hereunder in
the form of (a) Asset Sale Term Loans on the Effective Date in an aggregate
principal amount of $1,000,000,000, (b) Tranche A Term Loans on the Effective
Date in an aggregate principal amount of $1,750,000,000, (c) Tranche B Term
Loans on the Effective Date in an aggregate principal amount of $1,250,000,000,
(d) Tranche C Term Loans on the Effective Date in an aggregate principal amount
of $1,500,000,000, (e) Tranche D Term Loans on the Effective Date in an
aggregate principal amount equal to $2,500,000,000 minus the amount, if any, of
its Senior Subordinated Notes issued on or before the Effective Date and (f)
Revolving Loans, Letters of Credit and Swingline Loans at any time and from time
to time prior to the Revolving Maturity Date in an aggregate principal amount at
any time outstanding not in excess of $1,500,000,000 (subject to the limitations
set forth herein).
The proceeds of the Term Loans, together with the proceeds of
the Sponsor Preferred Stock and the Senior Subordinated Notes, are to be used
solely for (a) the payment of the Merger Consideration, (b) the payment of fees
and expenses payable in connection with the Transactions, (c) the repayment of
the Existing Credit Facility, the BFI Credit Facility and commercial paper of
BFI and (d) the repayment of severance and termination obligations of BFI in
connection with the Merger. The proceeds of Revolving Loans and Swingline Loans
are to be used for general corporate purposes, including working capital, to
make payments, if any, arising out of the exercise by BFI stockholders of their
appraisal rights in connection with the Merger and to finance Permitted
Acquisitions, Investments permitted by Section 6.05A and 6.05B and Capital
Expenditures.
The Senior Lenders, Tranche D Lenders and the Swingline Lender
are willing to extend such credit and the Issuing Banks are willing to issue
Letters of Credit on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"A, B and C Term Borrowings" means Tranche A Term Borrowings,
Tranche B Term Borrowings and Tranche C Term Borrowings.
"A, B and C Term Commitments" means Tranche A Commitments,
Tranche B Commitments and Tranche C Commitments.
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquired Business" means (a) any Person substantially all of
the capital stock or other ownership interests of which is acquired after the
date hereof by Allied Waste and/or a Subsidiary and (b) any assets constituting
a discrete business or operating unit acquired on or after the date hereof by
Allied Waste or a Subsidiary, in each case in accordance with the terms of this
Agreement.
"Acquired Indebtedness" means Indebtedness of an Acquired
Business outstanding on the date such Acquired Business was acquired by Allied
Waste and/or one of its Subsidiaries.
"Acquisition Consideration" means, with respect to any
acquisition, the aggregate amount of consideration paid by the members of the
Allied Group in connection therewith, including, without limitation (but without
duplication):
(1) the aggregate amount of cash paid and the aggregate fair
market value of noncash property delivered by members of the Allied
Group in connection with such acquisition;
(2) the aggregate amount of Indebtedness and other liabilities
retained by the Acquired Business; and
(3) the aggregate amount of Indebtedness and other liabilities
of the Acquired Business or the Sellers thereof (other than those
referred to in clause (2) above) assumed by the members of the Allied
Group, in connection with such acquisition.
but in any event excluding (x) common stock, Preferred Stock (other than
Cash-Pay Preferred Stock) and other Non-Cash-Pay Equity Interests issued by
Allied Waste in connection with such acquisition, (y) payment obligations of
members of the Allied Group based on post-acquisition performance of the
Acquired Business and (z) liabilities for which members of the Allied Group have
received indemnification or other financial assurances from or on behalf of the
transferor (so long as the obligors on such indemnification or other financial
assurances are, in the reasonable opinions of the Administrative Agent and the
Borrower, creditworthy).
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder and as Collateral
Agent for the Senior Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Allied Group" means, collectively, Allied Waste and Allied
Waste's Restricted Subsidiaries (including, without limitation, the Borrower and
its subsidiaries that are Restricted Subsidiaries), and a "member" of the Allied
Group means Allied Waste and each of Allied Waste's Restricted Subsidiaries. For
purposes of the representations and warranties made herein on (and the
conditions to borrowing on) the Effective Date, the term "Allied Group" includes
each of BFI and its subsidiaries.
"Allied Guarantee" means a supplemental indenture, in
substantially the form approved by the Administrative Agent, pursuant to which
AWNA and Allied Waste Guarantee the BFI Indenture Debt.
"Allied Waste" means Allied Waste Industries, Inc., a Delaware
corporation.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate.
"Apollo" means Apollo Management IV, L.P or its Permitted
Transferees (exclusive of the Allied Group).
"Applicable Margin" means, for any day (a) with respect to any
Asset Sale Term Loan, the applicable Asset Sale Term Loan Margin, (b) with
respect to any Tranche B Term Loan, the applicable Tranche B Margin, (c) with
respect to any Tranche C Term Loan, the applicable Tranche C Margin, (d) with
respect to any Tranche D Loan, the applicable Tranche D Margin, and (e) with
respect to any ABR Loan or Eurodollar Loan that is a Revolving Loan or a Tranche
A Term Loan, the applicable interest rate margin per annum set forth below under
the caption "ABR Spread" or "Eurodollar Spread", as the case may be, based upon
the Leverage Ratio as of the most recent determination date; provided that the
ABR Spread relating to Swingline Loans, whenever such Leverage Ratio is in
Category 2, 3 or 4, will be .25% lower than the ABR Spread reflected in the
table below and whenever such Leverage Ratio is in Category 5, will be 0%;
provided, further, that until the later of (i) the delivery pursuant to Section
5.04A(b) of Allied Waste's Consolidated financial statements for the fiscal
quarter ending March 31, 2000 and (ii) the repayment in full of the Asset Sale
Term Loans, the "Applicable Margin" for purposes of this clause (e) shall be the
applicable rate per annum set forth below in Category 1:
----------------------------------------------------------------------=====================================
ABR Eurodollar
Leverage Ratio: Spread Spread
----------------------------------------------------------------------=====================================
----------------------------------------------------------------------=====================================
Category 1
Greater than or equal to 5.00 to 1.00 1.50% 2.50%
----------------------------------------------------------------------=====================================
----------------------------------------------------------------------=====================================
Category 2
Greater than or equal to 4.50 to 1.00 but 1.25% 2.25%
less than 5.00 to 1.00
Category 3
Greater than or equal to 4.00 to 1.00 but 1.00% 2.00%
less than 4.50 to 1.00
Category 4
Greater than or equal to 3.50 to 1.00 but 0.75% 1.75%
less than 4.00 to 1.00
Category 5
Greater than or equal to 3.00 to 1.00 but 0.375% 1.375%
less than 3.50 to 1.00
Category 6
Less than 3.00 to 1.00 0% 1.00%
----------------------------------------------------------------------=====================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon Allied Waste's Consolidated financial statements delivered pursuant
to Section 5.04A(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 1 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrower fails to deliver the Consolidated financial statements required
to be delivered by it pursuant to Section 5.04A(a) or (b), during the period
from and including the last date for timely delivery thereof (without regard to
any applicable grace period) until the date on which such Consolidated financial
statements are delivered.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to the
commitment fees payable hereunder, the applicable rate per annum set forth below
under the caption "Commitment Fee Rate", based upon the Leverage Ratio as of the
most recent determination date; provided that until the later of (i) the
delivery pursuant to Section 5.04A(b) and 5.04B(b) of Allied Waste's
Consolidated financial statements for the fiscal quarter ending March 31, 2000
and (ii) the repayment in full of the Asset Sale Term Loans, the "Applicable
Rate" shall be the applicable rate per annum set forth below in Category 1:
------------------------------------------------------ ====================================================
Leverage Ratio: Commitment Fee Rate
------------------------------------------------------ ====================================================
------------------------------------------------------ ====================================================
Category 1
Greater than or equal to 4.00 to 1.00 0.50%
------------------------------------------------------ ====================================================
------------------------------------------------------ ====================================================
Category 2
Greater than or equal to 3.00 to 1.00 but less than 0.375%
4.00 to 1.00
------------------------------------------------------ ====================================================
------------------------------------------------------ ====================================================
Category 3
Less than 3.00 to 1.00 0.25%
------------------------------------------------------ ====================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon Allied Waste's Consolidated financial statements delivered pursuant
to Section 5.04A(a) or (b) and Section 5.04B(a) or (b) and (ii) each change in
the Applicable Rate resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the date of delivery to
the Administrative Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the effective date of
the next such change; provided that the Leverage Ratio shall be deemed to be in
Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request of
the Required Lenders if the Borrower fails to deliver the Consolidated financial
statements required to be delivered by it pursuant to Section 5.04A(a) or (b)
and Section 5.04B(a) or (b), during the period from and including the last date
for timely delivery thereof (without regard to any applicable grace period)
until the date on which such Consolidated financial statements are delivered.
"Asset Disposition" by any Person that is the Borrower or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or other
disposition by the Borrower or any of its Restricted Subsidiaries, including a
consolidation or merger or other sale of any Restricted Subsidiary with, into or
to another Person in a transaction in which the Restricted Subsidiary ceases to
be a Restricted Subsidiary of such Person, of:
(1) shares of Equity Interests, other than directors' qualifying shares, or
other ownership interests of a Restricted Subsidiary;
(2) the property or assets of such Person or any Restricted Subsidiary
representing a division or line or business; or
(3) other assets or rights of such Person or any Restricted Subsidiary
outside of the ordinary course of business.
Notwithstanding the preceding, the following items shall not be deemed to be an
Asset Disposition:
(1) a disposition by a Subsidiary of such Person to such Person or a
Restricted Subsidiary or by such Person to a Restricted Subsidiary;
(2) the disposition of all or substantially all of the assets of the
Borrower in a manner permitted pursuant to the provisions described under
Section 6.06B; and
(3) any disposition that constitutes a Restricted Payment that is permitted
pursuant to Section 6.08A or Permitted Investment that is permitted
pursuant to the provisions under Section 6.05B.
"Asset Sale" means any sale, lease, assignment, transfer or
other disposition of any property (whether now owned or hereafter acquired,
whether in one transaction or a series of related transactions and whether by
way of merger or otherwise) by any member of the Allied Group, including,
without limitation, any such sale, assignment, transfer or other disposition of
any capital stock or other ownership interests of any of Allied Waste's
Subsidiaries and any sale or securitization of accounts receivable (other than
assignments of accounts receivable for purposes of collection in the ordinary
course of business), but excluding dispositions of obsolete inventory or
equipment and sales of inventory and equipment, in each case, in the ordinary
course of business.
"Asset Sale Term Loan" means a Loan made pursuant to clause
(a) of Section 2.01.
"Asset Sale Term Loan Commitment" means, with respect to each
Senior Lender, the commitment, if any, of such Senior Lender to make an Asset
Sale Term Loan hereunder on the Effective Date, expressed as an amount
representing the maximum principal amount of the Asset Sale Term Loan to be made
by such Lender hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Senior Lender pursuant to Section 9.04.
The initial amount of each Senior Lender's Asset Sale Term Loan Commitment is
set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Senior Lender shall have assumed its Asset Sale Term Loan Commitment,
as applicable. The initial aggregate amount of the Senior Lenders' Asset Sale
Term Loan Commitments is $1,000,000,000.
"Asset Sale Term Loan Margin" means, with respect to any Asset
Sale Term Loan, (a) 1.50% per annum, in the case of an ABR Loan, or (b) 2.50%
per annum, in the case of a Eurodollar Loan.
"Asset Sale Term Loan Maturity Date" means the date that is
two years after the Effective Date.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Senior Lender and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
"AWNA" means the Borrower.
"AWNA Senior Note Indenture" means the Indenture dated as of
December 23, 1998, among AWNA, Allied Waste, various Subsidiaries, and U.S. Bank
Trust National Association, as Trustee, including all supplements thereto, as in
effect on the date hereof, and as thereafter amended in accordance with the
provisions of this Agreement.
"AWNA Senior Notes" means the senior notes of AWNA issued
prior to the date hereof pursuant to the AWNA Senior Note Indenture in an
aggregate outstanding principal amount of approximately $1,700,000,000.
"Bank Indebtedness" means any and all amounts payable under or
in respect of this Agreement and the other Loan Documents in respect of the
Senior Obligations and the Refinancing Indebtedness with respect thereto, as
amended from time to time, including principal, premium, (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Borrower whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"BFI" means Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware
corporation and the surviving corporation in the Merger.
"BFI Credit Facility" means (i) the Second Amended and
Restated Revolving Credit Agreement (the "BFI Credit Agreement"), dated as of
May 31, 1995 and amended by the First Amendment to the Second Amended and
Restated Revolving Credit Agreement as of March 31, 1998, among BFI, the
Continuing Banks, the New Banks and the Retiring Banks named therein, the
Co-Agents, Credit Suisse First Boston, as Documentation Agent, Chase Bank of
Texas, N.A., as Administrative Agent, and Chase Manhattan Bank, as Auction
Administrative Agent, and (ii) the Amended and Restated Multicurrency Revolving
Credit Agreement (the "BFI Multicurrency Agreement"), dated as of December 26,
1996 and amended by the First Amendment to the Amended and Restated
Multicurrency Revolving Credit Agreement as of December 26, 1997 and by the
Second Amendment to the Amended and Restated Multicurrency Revolving Credit
Agreement as of March 31, 1998, among BFI, the banks and other financial
institutions listed therein and Credit Suisse First Boston, as Administrative
Agent.
"BFI Indenture" means the Restated Indenture dated as of
September 1, 1991, between BFI and Chase Bank of Texas, N.A., as successor
trustee to First City Texas-Houston, N.A., including all supplements, amendments
and modifications thereto, as in effect on the date hereof, and as hereafter
amended in accordance with the provisions of this Agreement.
"BFI Indenture Debt" means the senior notes of BFI issued
pursuant to the BFI Indenture and outstanding on the date hereof. The aggregate
amount of the BFI Indenture Debt on the date hereof is approximately
$1,450,000,000.
"Blackstone" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands
limited partnership, Blackstone Offshore Capital Partners II L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership III L.P.,
a Delaware limited partnership, and Blackstone Family Investment Partnership II
L.P., a Cayman Islands limited partnership (each of the foregoing, a "Blackstone
Fund") and (ii) each Affiliate of any Blackstone Fund that is not an operating
company or Controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee of The
Blackstone Group L.P.
"Blockage Notice" shall have meaning assigned thereto in
Section 10.03.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Allied Waste North America, Inc., a Delaware
corporation.
"Borrowing" means (a) Loans (and with respect to the Tranche D
Loans, for purposes of Section 2.10 and 2.11, such term will be deemed to
include, after the first anniversary of the Effective Date, any outstanding
Indebtedness evidenced by the Exchange Notes) of the same Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Phoenix, Arizona are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditures" means, for any period, expenditures
(including the aggregate amount of Capital Lease Obligations incurred during
such period) made by Allied Waste or any of its Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs unless such repairs are required to be
capitalized in accordance with GAAP) during such period computed in accordance
with GAAP; provided that Capital Expenditures shall not include (a) expenditures
classified as Permitted Acquisitions, (b) expenditures made by an Acquired
Business prior to the time such Acquired Business was acquired by Allied Waste
or any of its Subsidiaries pursuant to a Permitted Acquisition, (c) expenditures
made with the proceeds of condemnation awards or insurance for fixed assets,
plant and equipment, (d) expenditures made to consummate the Transactions, (e)
expenditures to acquire capital assets made with the proceeds of Asset Sales not
required to be applied to the mandatory prepayment of Loans hereunder, (f)
interest capitalized during such period, (g) expenditures that are accounted for
as capital expenditures of such Person and that actually are paid for by a third
party (excluding Allied Waste or any Subsidiary) and for which neither Allied
Waste nor any Subsidiary has provided or is required to provide or incur,
directly or indirectly, any consideration or obligation to such third party or
any other person (whether before, during or after such period), (i) the book
value of any asset owned by such Person prior to or during such period to the
extent such book value is included as a capital expenditure during such period
as a result of such person reusing or beginning to reuse such asset during such
period without a corresponding expenditure actually having been made in such
period; provided that any expenditure necessary in order to permit such asset to
be reused shall be included as a Capital Expenditure during the period that such
expenditure actually is made and such book value shall have been included in
Capital Expenditures when such asset was originally acquired and (j)
expenditures made to purchase the BFI headquarters building pursuant to
contractual obligations in existence on the date hereof, provided that the Net
Available Proceeds of any resale of such building are applied to repay Loans in
accordance with Sections 2.10 and 2.11 hereof.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means Permitted Investments.
"Cash-Pay Preferred Stock" means Preferred Stock (i) that
requires periodic payment of cash dividends or (ii) that the issuer thereof has
undertaken to redeem for cash at a fixed or determinable date or dates prior to
the date that is six months after the Tranche C Maturity Date, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition
not solely within the control of the issuer (other than the existence of a
condition requiring the issuer to redeem such Preferred Stock upon the
occurrence of a change of control of the issuer or any of its affiliates) or
(iii) is redeemable for cash on any date prior to the date that is six months
after the Tranche C Maturity Date at the option of the holder thereof.
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its subsidiaries receives insurance
proceeds, proceeds of a condemnation award or other compensation.
"Change in Control" means:
(a) any Person or group (other than Apollo or Blackstone)
(within the meaning of Rule 13d-5 promulgated under the Securities
Exchange Act of 1934 as in effect on the date hereof) shall have
acquired directly or indirectly, beneficial ownership of shares
representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Allied
Waste;
(b) Allied Waste is merged, consolidated or reorganized into
or with another corporation or other Person, and as a result of such
merger, consolidation or reorganization, less than a majority of the
combined voting power of the then outstanding securities of Allied
Waste immediately after such transaction is held in the aggregate by
the holders of Allied Waste Voting Stock immediately prior to such
transaction (where "Allied Waste Voting Stock" means outstanding
securities of Allied Waste entitled to vote generally in the election
of directors of Allied Waste); or
(c) a majority of the seats (other than vacant seats) on the
board of directors of Allied Waste shall at any time be occupied by
Persons who were neither nominated by the board of directors of Allied
Waste nor appointed by directors so nominated; or
(d) any change in control (or similar event, however
denominated) with respect to Allied Waste or the Borrower shall occur
under and as defined in any indenture or agreement in respect of
Indebtedness in an aggregate principal amount in excess of $50,000,000;
or
(e) Allied Waste shall cease to own and control, directly,
beneficially and of record, 100% of the outstanding capital stock of
the Borrower, free and clear of all Liens (other than Liens under the
Non-Shared Collateral Pledge Agreement).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Asset Sale Term Loans, Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans, Tranche D Loans or Swingline Loans and, when used
in reference to any Commitment, refers to whether such Commitment is a Revolving
Commitment, Asset Sale Term Loan Commitment, Tranche A Commitment, Tranche B
Commitment, Tranche C Commitment or Tranche D Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral" as defined in the
Non-Shared Collateral Security Agreement or "Collateral" as defined in the
Shared Collateral Security Agreement.
"Collateral Agent" means The Chase Manhattan Bank in its
capacity as collateral agent or collateral trustee under the Loan Documents.
"Collateral Trust Agreement" means the Collateral Trust
Agreement, substantially in the form of Exhibit C, among BFI, Subsidiary Loan
Parties that are Subsidiaries of BFI and the Collateral Trustee for the benefit
of the Shared Collateral Secured Parties.
"Collateral Trustee" means The Chase Manhattan Bank in its
capacity as collateral trustee under the Collateral Trust Agreement, the Shared
Collateral Pledge Agreement and the Shared Collateral Security Agreement.
"Commitment" means the Senior Commitments and the Tranche D
Commitments, or any combination thereof (as the context requires).
"Confidential Information Memorandum" means the Confidential
Information Memorandum of Allied Waste and the Borrower dated April, 1999,
provided to prospective Lenders in connection with the syndication of the
Commitments.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income of Allied Waste and its Restricted Subsidiaries, determined without
giving effect to any extraordinary gains included in determining Consolidated
Net Income for such period, plus, without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (a) the aggregate amount
of Consolidated Interest Expenses for such period, (b) the aggregate amount of
income tax expense for such period, (c) all amounts attributable to depreciation
and amortization for such period, (d) all non-cash non-recurring charges during
such period, including charges in respect of costs related to Permitted
Acquisitions (it being understood that (i) non-cash non-recurring charges shall
not include accruals for closure and post-closure liabilities and (ii) charges
shall be deemed non-cash charges until the period that cash disbursements
attributable to such charges are made, at which point such charges shall be
deemed cash charges; provided that, for purposes of this clause (d), Allied
Waste shall be required to monitor actual cash disbursements only for those
non-cash charges that exceed $1,000,000 individually and $10,000,000 in the
aggregate in any fiscal year), (e) all cash charges attributable to consummation
of the Transactions during such period, (f) non-recurring management fees paid
to Apollo and Blackstone and (g) all non-recurring cash charges incurred in
connection with Permitted Acquisitions, Investments permitted under Sections
6.05(A)(a), (h) or (i) or Sections 6.05B(a), (h) or (i) and Indebtedness
permitted under Section 6.01A or Section 6.01B, and minus, without duplication
and to the extent added to revenues in determining Consolidated Net Income for
such period, all non-cash non-recurring gains during such period, all as
determined on a Consolidated basis with respect to Allied Waste and the
Restricted Subsidiaries. For purposes of Section 6.13A and 6.14A, if the
Borrower or any of its Restricted Subsidiaries acquires any Acquired Business
during any Rolling Period, Consolidated EBITDA for such Rolling Period will be
determined on a pro forma basis as if such Acquired Business were acquired on
the first day thereof. In determining the pro forma adjustments to Consolidated
EBITDA to be made with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Borrower and its Restricted
Subsidiaries prior to the first anniversary of the related acquisition date that
result in cost savings with respect to such Acquired Business will be deemed to
have been taken on the first day of the Rolling Period for which Consolidated
EBITDA is being determined (with the intent that such cost savings be
effectively annualized by extrapolation from the demonstrated cost savings since
the related acquisition date). Such pro forma adjustments will be subject to
delivery to the Administrative Agent of a certificate of a Financial Officer of
the Borrower; such certificates may be delivered with respect to any Acquired
Business at any time after the last day of the first fiscal quarter of the
Borrower to end after the related acquisition date and may be delivered
quarterly (but only once per fiscal quarter with respect to each Acquired
Business). Each such certificate shall be accompanied by supporting information
and calculations demonstrating the actual cost savings with respect to such
Acquired Business and such other information as any Lender, through the
Administrative Agent, may reasonably request.
"Consolidated Interest Expense" means, for any period, the
sum, for Allied Waste and its Restricted Subsidiaries (determined on a
Consolidated basis without duplication), of the following:
(a) all interest in respect of Indebtedness (including the
interest component of any payments in respect of Capital Lease
Obligations) accrued or capitalized during such period (whether or not
actually paid during such period), net of interest income; plus
(b) the net amount due and payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period); plus
(c) all fees payable to Issuing Banks in respect of Letters of
Credit accrued during such period (whether or not actually paid during
such period); plus
(d) all cash dividends accrued during such period (whether or
not actually paid during such period) in respect of Cash-Pay Preferred
Stock of members of the Allied Group other than any such accruals of
cash dividends with respect to Cash-Pay Preferred Stock that has not
yet commenced payment of cash dividends and in respect of which no
declaration of such dividend has occurred in such period or is
anticipated to occur in the next ensuing fiscal quarter; plus
(e) all cash dividends paid during such period in respect of
Cash-Pay Preferred Stock of members of the Allied Group, to the extent
accruals of such dividends were not included as "Consolidated Interest
Expense" in such period or prior periods pursuant to clause (d) above,
provided that "Consolidated Interest Expense" shall not include any interest
expense accrued and not paid or payable in cash in respect of Non-Cash-Pay
Indebtedness.
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) after provision for taxes and before any
pay-in-kind or non-cash accumulating dividend on preferred stock of such Person
and its subsidiaries determined on a Consolidated basis for such period taken as
a single accounting period.
"Consolidated Total Assets" means, as at any date of
determination, the aggregate amount of assets reflected on the Consolidated
balance sheet of the Allied Group prepared in accordance with GAAP most recently
delivered to the Administrative Agent pursuant to Section 5.04 on or prior to
such date of determination.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Cure Amount" has the meaning specified in Section 7.02.
"Cure Right" has the meaning specified in Section 7.02.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Noncash Consideration" means the fair market value
of noncash consideration received by the Borrower or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash Consideration pursuant to a certificate of a Financial
Officer, setting forth the basis of such valuation, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount of, or under which, at the date
of determination, the holders thereof are committed to lend up to, at least
$50,000,000 and is specifically designated by the Borrower in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Agreement.
"Designation" shall have the meaning assigned to such term in
Section 6.16A.
"dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means a Restricted Subsidiary organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environment" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, any building, structure or fixture, or as otherwise defined
in any Environmental Law.
"Environmental Claim" means any written accusation,
allegation, notice of violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any Governmental Authority
or any Person, in any such case for or relating to damages, injunctive or
equitable relief, personal injury (including sickness, disease or death),
remedial action costs, tangible or intangible property damage, natural resource
damages, nuisance, pollution, investigation, closure and post-closure care of
any landfill, any adverse effect on the environment caused by any Hazardous
Material, or for fines, penalties or restrictions, resulting from or based upon
(a) the threat, the existence, or the continuation of the existence, of a
Release (including sudden or nonsudden, accidental or nonaccidental Releases),
(b) exposure to any Hazardous Material, (c) the presence, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material or (d)
the violation or alleged violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable
present and future treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices, legally binding agreements or
published and legally binding guidance documents issued, promulgated or entered
into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the treatment, storage,
disposal, management, Release or threatened Release of any Hazardous Material or
to health and safety matters, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. xx.xx.
9601 et seq. (collectively "CERCLA"), the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Action of 1976 and Hazardous and Solid
Waste Amendments of 1984, 42 U.S.C. xx.xx. 6901 et seq., the Federal Water
Pollution Control Act, as amended, 33 U.S.C. xx.xx. 1251 et seq., the Clean Air
Act of 1970, as amended, 42 U.S.C. xx.xx. 7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. xx.xx. 2601 et seq., the Occupational Safety and
Health Act of 1970, as amended, 29 U.S.C. xx.xx. 651 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. xx.xx. 11001 et
seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. xx.xx. 300(f)
et seq., the Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 5101 et
seq., and all amendments or regulations promulgated under any of the foregoing.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of Allied Waste, the Borrower or
any Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Government Authority pursuant to any Environmental Law.
"Equity Interests" means, with respect to any Person, shares
of capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests issued by such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA; provided that no
ERISA Event shall be "outstanding" on any date on which such ERISA Event has
been corrected.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" means Senior Event of Default and Tranche D
Event of Default.
"Excess Cash Flow" means with respect to Allied Waste and its
Subsidiaries on a Consolidated basis for any fiscal year, the excess of (a) the
sum (without duplication) of (i) Consolidated Net Income of Allied Waste and its
Restricted Subsidiaries for such fiscal year, (ii) total interest expense
(whether cash or non-cash) to the extent deducted in determining Consolidated
Net Income, (iii) provisions for taxes to the extent deducted in determining
Consolidated Net Income, (iv) the amount of all depreciation expense,
amortization expense and other non-cash charges to the extent deducted in
determining Consolidated Net Income, (v) all Net Available Proceeds (other than
those the Borrower is permitted to retain pursuant to Section 2.10 and 2.11)
received by Allied Waste and its Restricted Subsidiaries during such fiscal year
to the extent not included in Consolidated Net Income, (vi) all extraordinary
gains resulting in receipt of cash by the Allied Group during such fiscal year
not otherwise included in determining Consolidated Net Income for such fiscal
year, and (vii) an amount equal to any decrease in Net Working Capital during
such fiscal year over (b) the sum, without duplication, of (i) taxes paid or
payable during such fiscal year, (ii) Consolidated Interest Expense paid or
payable in cash during such fiscal year, (iii) Capital Expenditures made in cash
and in accordance with Section 6.15A and 6.15B or funded with Net Available
Proceeds during such fiscal year, (iv) expenditures made in cash for Permitted
Acquisitions and for Investments permitted under Section 6.05A(h), (i) and (l)
and 6.05B(h),(i) and (l) during such fiscal year to the extent not made from the
proceeds of any Indebtedness, (v) scheduled and mandatory principal repayments
of Indebtedness made by Allied Waste and its Restricted Subsidiaries during such
fiscal year, (vi) optional and mandatory prepayments of the principal of Loans
during such period, but only to the extent that such prepayments cannot by their
terms be reborrowed or redrawn and do not occur in connection with a refinancing
of all or any portion of such Loans, (vii) an amount equal to any increase in
Net Working Capital during such fiscal year, (viii) dividends or other
distributions made by Allied Waste in cash during such fiscal year that are
permitted by 6.08A and 6.08B and (ix) to the extent included in determining
Consolidated Net Income, all extraordinary gains that did not result in receipt
of cash by the Allied Group during such fiscal year.
"Exchange Note" means the senior subordinated notes
substantially in the form attached as an exhibit to the Exchange Note Indenture.
"Exchange Note Holders" means holders of the Exchange Notes.
"Exchange Note Indenture" means an indenture between the
Borrower and a trustee substantially in the form of Exhibit D hereto (with such
changes therein as the Administrative Agent and the Borrower shall approve)
provided, that such changes do not materially adversely affect the Senior
Lenders, as the same may at any time be amended, modified and supplemented.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) any taxes
(including franchise taxes and taxes imposed on (or measured by) net income,
receipts or capital) imposed as a result of a connection between such recipient
and the jurisdiction imposing such tax, including, without limitation, any
connection arising from such recipient being or having been a citizen,
domiciliary or resident of such jurisdiction, being organized in such
jurisdiction, or having or having had a permanent establishment or fixed place
of business therein, but excluding any such connection arising solely from the
activities of such recipient pursuant to or in respect of this Agreement or
under any other Loan Document, including executing, delivering or performing its
obligations or receiving a payment under, or enforcing, this Agreement or any
other Loan Document and (b) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any tax
that (i) arises other than as a result of a Change in Law subsequent, in the
case of each Foreign Lender, to the date such Foreign Lender becomes a party to
this Agreement, except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to any
withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such
Foreign Lender's failure to comply with Section 2.17(e).
"Existing Credit Agreement" means the Credit Agreement dated
as of June 18, 1998 among the Borrower, Allied Waste, the lenders party thereto,
the agents party thereto, Citibank, N.A., as Issuing Bank, and Citicorp USA,
Inc., as Administrative Agent, as amended and in effect on the date hereof.
"Existing Letter of Credit" means each letter of credit
previously issued for the account of, or guaranteed by, the Borrower, BFI or a
Domestic Subsidiary that (a) is outstanding on the Effective Date and (b) is
listed on Schedule 2.05 and any letter of credit issued in replacement or
renewal thereof prior to the Effective Date, provided that the Administrative
Agent is notified of such renewal or replacement on or prior to the Effective
Date.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Financial Performance Covenants" means the covenants set
forth in Sections 6.13A and 6.14A.
"Foreign Lender" means any Lender that is not a United States
person within the meaning of Section 7701(a)(30) of the Code.
"Foreign Subsidiary" means any Restricted Subsidiary that is
not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement,
the Subsidiary Guarantee Agreement, the Subordinated Parent Guarantee Agreement
and the Subordinated Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes; hazardous or toxic substances or wastes; pollutants; and
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all substances, wastes, pollutants and materials of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any Interest Rate Protection
Agreement or commodity price protection agreement or other commodity price
hedging arrangement.
"Inactive Subsidiary" has the meaning specified in Section
3.08(c).
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable and accrued obligations incurred
in the ordinary course of business and waste disposal based royalties), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (j)
all net payment obligations of such Person in respect of Hedging Agreements, and
(k) all fixed obligations of such Person to pay a determined amount with respect
to Cash Pay-Preferred Stock issued by such Person. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and
Other Taxes.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E-1, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Initial Lenders" means The Chase Manhattan Bank, Citicorp
USA, Inc. and DLJ Capital Funding, Inc. and Credit Suisse First Boston.
"Insurance Subsidiaries" means, collectively, (i) Reliant
Insurance Company and Indemnity Corporation, an insurance company organized
under the laws of the State of Vermont and, as at the Effective Date, a wholly
owned Subsidiary of the Borrower; (ii) Global Indemnity Assurance Company, an
insurance company organized under the laws of the State of Vermont and, as at
the Effective Date, a wholly owned Subsidiary of the Borrower; and (iii)
Commercial Reassurance Limited, an insurance company organized under the laws of
the Republic of Ireland and, as at the Effective Date, a wholly owned Subsidiary
of the Borrower.
"Intellectual Property" means the "Intellectual Property" as
defined in the Non-Shared Collateral Security Agreement and the "Intellectual
Property" as defined in the Shared Collateral Security Agreement
"Intercompany Agreements" means the Management Agreements
between Allied Waste and the Borrower dated November 15, 1996.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) Consolidated EBITDA for the Rolling Period most recently ended on or prior
to such date to (b) Consolidated Interest Expense for such Rolling Period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Loan Borrowing in accordance
with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided that (i) the Borrower
may select Interest Periods of 7 or 14 days so long as no such Interest Period
ends after December 31, 1999, (ii) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless (except in the case of Interest Periods referred
to in clause (i) above) such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (iii) except in the case of Interest Periods referred
to in clause (i) above, any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Interest Rate Protection Agreement" means any interest rate
protection agreement or foreign currency exchange agreement or other interest or
currency exchange rate hedging arrangement.
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person (by means of any
transfer of cash or other property to any Person or any payment for property or
services for the account or use of any Person, or otherwise), (ii) any direct or
indirect purchase or other acquisition of any Equity Interests, bond, note,
debenture or other debt or equity security or evidence of Indebtedness, or any
other ownership interest (including, any option, warrant or any other right to
acquire any of the foregoing), issued by such other Person, whether or not such
acquisition is from such or any other Person, (iii) any direct or indirect
payment by such Person on a Guarantee of any obligation of or for the account of
such other Person or any direct or indirect issuance by such Person of such a
Guarantee or (iv) any other investment of cash or other property by such Person
in or for the account of such other Person.
"Issuing Bank" means (a) each of The Chase Manhattan Bank and
any issuer of an Existing Letter of Credit and any other Bank designated as an
Issuing Bank in accordance with the provisions of Section 2.05(i), in each case
its capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.05(i) and (b) in respect of each Existing
Letter of Credit, the issuer thereof. An Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
"Junior Indebtedness" means (a) Indebtedness of members of the
Allied Group in respect of Tranche D Term Loans, the Senior Subordinated Notes
and other Permitted Subordinated Debt, and (b) Indebtedness of members of the
Allied Group the payment of which is contractually subordinated to the
obligations of such members as Loan Parties hereunder.
"LC Disbursement" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lenders" means the Senior Lenders and the Tranche D Lenders.
"Letter of Credit" means any letter of credit (including each
Existing Letter of Credit) issued pursuant to this Agreement.
"Leverage Ratio" means, as at any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the Rolling Period
most recently ended on or prior to such date, all determined on a Consolidated
basis in accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Screen, formerly known as Telerate Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Screen,
providing rate quotations comparable to those currently provided on such page of
such Screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
"Loan Documents" means this Agreement, the Security
Agreements, the other Security Documents, the Subordinated Parent Guarantee
Agreement, the Subordinated Subsidiary Guarantee Agreement and the Subordinated
Indemnity, Subrogation and Contribution Agreement, as the same may be amended,
supplemented, extended, increased or renewed from time to time.
"Loan Parties" means Allied Waste, the Borrower and the
Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement (and on or after the first anniversary of the
Effective Date, for purposes of Sections 2.10 and 2.11 with respect to the
Tranche D Loans, such term will be deemed to include any outstanding
Indebtedness evidenced by the Exchange Notes).
"Margin Stock" means "margin stock", as such term is defined
in Regulation U of the Board.
"Material Adverse Effect" means (a) a materially adverse
effect on the business, condition (financial or otherwise), operations,
performance or properties of Allied Waste and its Restricted Subsidiaries, taken
as a whole, (b) a material impairment of the ability of Allied Waste or the
Borrower to perform its obligations under the Loan Documents, (c) a material
impairment of the ability of the members of the Allied Group, taken as a whole,
to perform their collective obligations under the Loan Documents, or (d) a
material impairment of the rights of or benefits available to the Administrative
Agent and the Lenders under the Loan Documents.
"Material Agreement" means an agreement that is material to
the conduct of the business of Allied Waste and its Restricted Subsidiaries,
taken as a whole.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Allied Waste and its Restricted Subsidiaries
in an aggregate principal amount exceeding $50,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements with the applicable
counterparty) that Allied Waste or such Restricted Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Material Lease" means a lease of Allied Waste or a Restricted
Subsidiary with respect to real property (i) having an aggregate book value of
more than $50,000,000 or (ii) providing for annual rental payments in excess of
$10,000,000.
"Material Loan Party" means Allied Waste, the Borrower, BFI
and each other Loan Party that has (i) $50,000,000 in gross revenues in any
fiscal year or (ii) $50,000,000 in total assets.
"Merger" shall have the meaning assigned to such term in the
preamble hereto.
"MergerCo" means AWIN I Acquisition Corporation, a newly
formed Delaware corporation that is a special purpose subsidiary of AWNA.
"Merger Consideration" means the cash consideration payable
pursuant to the Merger Agreement as a consequence of the Merger in respect of
outstanding Shares and options to acquire Shares, which, in the aggregate, is
approximately $7,400,000,000.
"Merger Documents" means the Merger Agreement and the other
agreements and documents entered into pursuant thereto or in connection
therewith (other than the Loan Documents and the Subordinated Debt Documents).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(a) In the case of any Asset Sale, the aggregate amount of all
cash payments as and when received by the members of the Allied Group
directly or indirectly in connection with such Asset Sale; provided
that:
(1) such Net Available Proceeds shall be net of (x)
the amount of any legal, title and recording tax expenses,
commissions and other reasonable fees and expenses (including
reasonable expenses of preparing the relevant property for
sale) paid by the members of the Allied Group in connection
with such Asset Sale, (y) any Federal, state and local income
or other taxes reasonably estimated in good faith to be
payable by members of the Allied Group with respect to such
Asset Sale and (z) the aggregate amount of reserves taken by
the members of the Allied Group in accordance with GAAP
against indemnification obligations incurred by them in
connection with such Asset Sale; provided that if any such
reserves are subsequently reversed by or released to members
of the Allied Group, an amount equal to the amount of such
reversal or release shall be deemed to constitute Net
Available Proceeds;
(2) such Net Available Proceeds shall be net of any
repayments of Indebtedness and related obligations by members
of the Allied Group to the extent that (x) such Indebtedness
is secured by a Lien on the property that is the subject of
such Asset Sale and permitted by Section 6.02A and 6.02B and
(y) the transferee of (or holder of a Lien on) such property
requires that such Indebtedness be repaid as a condition to
the purchase of such property; and
(3) in the case of an Asset Sale consisting of a
substantially contemporaneous exchange (including by way of a
substantially contemporaneous purchase and sale) of discrete
assets of members of the Allied Group for one or more other
assets used for similar purposes, Net Available Proceeds shall
be net of cash payments made by members of the Allied Group in
connection with such exchange.
(b) In the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received in cash by members of the Allied Group in respect of such
Casualty Event net of (1) reasonable cash expenses incurred by them in
connection therewith, (2) contractually required repayments of
Indebtedness and related obligations to the extent secured by a Lien on
the property suffering such Casualty Event and permitted by Section
6.02A and 6.02B and (3) any income, transfer and other taxes reasonably
estimated to be actually payable by members of the Allied Group in
respect of such Casualty Event; provided, however, that, in the case of
any Casualty Event, if the Borrower shall deliver a certificate of a
Financial Officer to the Administrative Agent at the time of such
Casualty Event setting forth the Borrower's intent to use all or a
portion of the proceeds of such Casualty Event to replace or repair the
assets that are the subject of such Casualty Event commencing within
180 days of receipt of such proceeds and no Event of Default shall have
occurred and shall be continuing at the time of such certificate or at
the proposed time of the application of such proceeds, such proceeds
shall not constitute Net Available Proceeds except to the extent not so
used within 365 days after the commencement of such repair or
replacement, at which time such proceeds shall be deemed Net Available
Proceeds.
(c) In the case of any issuance of Indebtedness or of capital
stock or other Equity Interests, the aggregate amount of all cash
received by members of the Allied Group in respect of such issuance,
net of underwriting commissions, discounts or placement fees and other
customary fees and expenses directly incurred in connection therewith.
"Net Working Capital" means, at any date, (a) the Consolidated
current assets of Allied Waste and its Restricted Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the Consolidated current
liabilities of Allied Waste and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"Non-Cash-Pay" means:
(a) with respect to any Preferred Stock, that such Preferred
Stock is not Cash-Pay Preferred Stock; and
(b) with respect to any Indebtedness or Equity Interest (other
than Preferred Stock), that such Indebtedness or Equity Interest does
not require any cash payments (whether in respect of principal,
interest, dividends, redemption or repurchase) to be made thereon or in
respect thereof on or prior to the Tranche C Maturity Date, whether by
operation of a sinking fund or otherwise.
"Non-Shared Collateral Pledge Agreement" means the Non-Shared
Collateral Pledge Agreement, substantially in the form of Exhibit F, among
Allied Waste, the Borrower, Subsidiary Loan Parties (other than BFI and its
Subsidiaries) and the Collateral Agent for the benefit of the Secured Parties.
"Non-Shared Collateral Security Agreement" means the
Non-Shared Collateral Security Agreement, substantially in the form of Exhibit
G, among the Borrower, Allied Waste, Subsidiary Loan Parties (other than BFI and
its Subsidiaries) and the Collateral Agent for the benefit of the Secured
Parties.
"Obligations" means the "Obligations" as defined in the
Non-Shared Collateral Security Agreement.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales or property or similar taxes,
charges or similar levies arising from any payment made under any Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
any Loan Document.
"Parent Guarantee Agreement" means the Parent Guarantee
Agreement, substantially in the form of Exhibit H, made by Allied Waste in favor
of the Administrative Agent for the benefit of the Secured Parties.
"Participant" has the meaning specified in Section 9.04(e).
"Payment Blockage Period" shall have the meaning assigned
thereto in Section 10.03.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificates" means certificates in the form of
Exhibit I-1 and Exhibit I-2 or any other form approved by the Collateral Agent.
"Permitted Acquisition" means one or more acquisitions by the
Borrower or any other Loan Party of a business unit (with any associated assets)
located in the United States or capital stock or other ownership interests
(other than Margin Stock) of any other Person organized under the laws of the
United States, any state thereof or the District of Columbia; provided that:
(1) in the case of an acquisition of assets, such assets are
to be used, and in the case of an acquisition of capital stock or other
ownership interests, the Person so acquired is predominately engaged
in, the same line of business as Allied Waste and its Restricted
Subsidiaries and other business activities incidental or related
thereto;
(2) the business acquired conducts its business exclusively in
the United States;
(3) in connection with any such acquisition involving a merger
of the Borrower or any Subsidiary Loan Party, (x) the Borrower or such
Subsidiary Loan Party shall be the survivor (and if any such
acquisition involves a merger of the Borrower and one of its
Subsidiaries, the Borrower shall be the survivor) and (y) after such
merger, Allied Waste shall own, directly or indirectly, beneficially
and of record, Equity Interests in such Subsidiary Loan Party
representing 100% of each of the aggregate ordinary voting power and
the aggregate equity value represented by the issued and outstanding
Equity Interests in such Subsidiary Loan party and the Borrower shall
continue to be a wholly owned Subsidiary of Allied Waste;
(4) immediately prior to and after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing;
(5) in the case of an acquisition of capital stock or other
ownership interests of a Person, the Borrower or a Subsidiary Loan
Party acquires 100% of the capital stock or other ownership interests
of such Person and pledges such capital stock or other ownership
interests pursuant to a Pledge Agreement; and
(6) with respect to such acquisition, the Loan Parties
(including any Specified Subsidiary acquired in connection with such
acquisition) shall enter into Guarantee Agreements and Security
Documents pursuant to Section 5.10A with respect to the Acquired
Business (and any newly acquired Specified Subsidiary) and no
agreement, instrument, law, regulation, order or decree applicable to
such Specified Subsidiary or Acquired Business shall prohibit, restrain
or limit its ability to enter into or perform any such Guarantee
Agreement or Security Document or to pledge its assets and properties
pursuant to any Security Document.
provided, however, that the prior written consent of the Required Lenders has
been obtained with respect to any such acquisition (whether effected in one
transaction or a series of related transactions) with respect to which the
aggregate Acquisition Consideration exceeds 40% of Consolidated EBITDA for the
Rolling Period ending on the last day of the most recent fiscal quarter with
respect to which financial statements have been delivered pursuant to Section
5.04A.
"Permitted Cure Security" means a Non-Cash Pay equity security
of Allied Waste.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.03A;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 90 days or are being contested in compliance with
Section 5.03A;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
incurred in the ordinary course of business;
(e) deposits securing liabilities to insurance carries under
insurance or self-insurance arrangements;
(f) judgment liens in respect of judgments or awards in
respect of which Allied Waste or its Subsidiaries are in good faith
prosecuting an appeal or proceedings for review and in respect of which
a stay of execution pending such appeal or proceedings for review shall
have been obtained; provided that Allied Waste shall have set aside on
its books adequate reserves in accordance with GAAP with respect
thereto;
(g) easements, ground leases, zoning restrictions, building
codes, rights-of-way or defects or irregularities in title and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of Allied Waste or any
Restricted Subsidiary;
(h) statutory and common law landlord liens;
(i) leases or subleases to other Persons of properties or
assets owned or leased by the Borrower or a Restricted Subsidiary; and
(j) Liens arising from the sale of overdue accounts receivable
for purposes of collection in the ordinary course of business, provided
that the term "Permitted Encumbrances" shall not include any Lien securing
Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) Investments in commercial paper maturing within 360 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) Investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) demand deposits made in the ordinary course of business
and consistent with the Borrower's customary cash management policy in
any domestic office of any commercial bank organized under the laws of
the United States of America or any state thereof;
(e) insured deposits issued by commercial banks of the type
described in clause (d) above;
(f) collateralized repurchase obligations with a term of not
more than 90 days for, and secured by, underlying securities of the
types described in clauses (a) through (c) above entered into with a
bank meeting the qualifications described in clause (c) above;
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of
clause (a) through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"Permitted Subordinated Debt" means Indebtedness of the
Borrower (and Guarantees of such Indebtedness by Restricted Subsidiaries of the
Borrower and by Allied Waste), the payment of which is subordinated to the
Borrower's, Allied Waste's or such Restricted Subsidiary's obligations in
respect of the Senior Obligations, provided that such Permitted Subordinated
Debt (a) accrues interest at a rate determined in good faith by the board of
directors of the Borrower to be a market rate of interest for such Permitted
Subordinated Debt at the time of issuance thereof, (b) is created under
agreements or instruments that do not, as determined in good faith by the board
of directors of the Borrower, (i) impose covenants on the Borrower and the
Borrower's Subsidiaries, (ii) contain a definition of change of control or (iii)
contain events of default and other provisions, in each case materially more
restrictive than the covenants imposed in, the change of control definition used
in and the events of default and other provisions contained in this Agreement,
(c) provides that no scheduled principal payments are due on such Permitted
Subordinated Debt on any date on or prior to the Tranche C Maturity Date, (d) is
unsecured, (e) is not guaranteed by Allied Waste or any Subsidiary unless (i) in
the case of a Subsidiary, such Subsidiary also has Guaranteed the Senior
Obligations and (ii) in the case of Allied Waste or any such Restricted
Subsidiary, such Guarantee of such Permitted Subordinated Debt is subordinated
to such Guarantee of the Senior Obligations on terms no less favorable to the
Lenders than the subordination provisions of the Permitted Subordinated Debt,
(f) does not by its terms require the maintenance or achievement of any
financial performance standards more restrictive than those contained herein, as
determined in good faith by the board of directors of the Borrower, other than
as a condition to taking specified action and (g) the terms of subordination of
such Permitted Subordinated Debt are customary and reasonably satisfactory to
the Administrative Agent, the Syndication Agent and the Documentation Agents.
"Permitted Transferee" means, with respect to any Person: (a)
any Affiliate of such Person; (b) any investment manager, investment advisor, or
constituent general partner of such Person; or (c) any investment fund,
investment account, or investment entity that is organized by such Person or its
Affiliates and whose investment manager, investment advisor, or constituent
general partner is such Person or a Permitted Transferee of such Person.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means the Non-Shared Collateral Pledge
Agreement and the Shared Collateral Pledge Agreement.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a preference or
priority, in respect of dividends or distributions upon liquidation, over some
other class of capital stock issued by such corporation.
"Preliminary OM" shall have the meaning assigned to such term
in Section 5.20B.
"Prepayment Event" means:
(a) any Asset Sale (including pursuant to a sale and leaseback
transaction) of any property or asset of Allied Waste or any Restricted
Subsidiary, other than, (i) Asset Sales effected between Loan Parties
permitted by Section 6.06A(f) and (ii) any Asset Sale (other than a
sale of Specified Assets) made after the date of this Agreement
resulting in Net Available Proceeds not exceeding $25,000,000; or
(b) any Casualty Event with respect to any property or asset
of Allied Waste or any Restricted Subsidiary, to the extent that the
Net Available Proceeds thereof are not applied to rebuilding, repairing
or replacing such property or asset within 365 days of such Casualty
Event, as provided in the definition of "Net Available Proceeds";
(c) the incurrence by Allied Waste, the Borrower or any
Restricted Subsidiary of any Indebtedness for borrowed money, (other
than Refinancing Indebtedness) pursuant to (x) Section 6.01A(xii) or
(xviii), except to the extent the Net Available Proceeds thereof are
used to make Permitted Acquisitions, Investments (other than Permitted
Investments) permitted by Section 6.05A or Capital Expenditures
permitted under Section 6.15A, (y) Section 6.01A(xvi) or (z) the
issuance of the Senior Subordinated Notes; or
(d) any issuance by Allied Waste of any of its capital stock
or other Equity Interests, other than (i) issuances to the extent the
Net Available Proceeds thereof are used, within 365 days of such
issuance, to make Permitted Acquisitions, Investments (other than
Permitted Investments) permitted by Section 6.05A or Capital
Expenditures permitted by Section 6.15A, (ii) issuances of capital
stock pursuant to management compensation plans, (iii) the issuance of
capital stock pursuant to the Sponsor Preferred Stock Purchase and (iv)
any such issuance after the date hereof when no Asset Sale Term
Borrowings or Asset Sale Term Loan Commitments remain outstanding (or
to the extent that Net Available Proceeds of a portion of such issuance
are applied to the repayment of the remaining Asset Sale Term
Borrowings or the termination of the remaining Asset Sale Term Loan
Commitments, any remaining portion thereof).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Properties" shall have the meaning assigned to such term in
Section 3.16(a).
"Ref-Fuel" means American Ref-Fuel, a Delaware limited
liability partnership, of which Duke/UAE Ref-Fuel Management, LLC, a wholly
owned subsidiary of Duke/UAE Ref-Fuel, LLC, and BFI Ref-Fuel, Inc., a wholly
owned subsidiary of BFI, are the biggest partners, holding 50% and 49.9% of the
partnership interests, respectively.
"Refinancing Indebtedness" has the meaning specified in
Section 6.01A(a)(xiii).
"Register" has the meaning set forth in Section 9.04.
"Related Business" means a business substantially similar to
the business engaged in by the Borrower and its subsidiaries on the date hereof.
"Related Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, trustees and advisors of such Person and such Person's Affiliates.
"Related Person" of any Person means, without limitation, any
other Person owning:
(1) 5% or more of the outstanding Common Stock of such Person
or
(2) 5% or more of the Voting Stock of such Person.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the Environment.
"Relevant Percentage" means (a) if the Leverage Ratio is
greater than or equal to 4.00 to 1.00, 100%; (b) if the Leverage Ratio is less
than 4.00 to 1.00 but greater than or equal to 3.50 to 1.00, 75%; (c) if the
Leverage Ratio is less than 3.50 to 1.00 but greater than or equal to 3.00 to
1.00, 50%; (d) if the Leverage Ratio is less than 3.00 to 1.00 but greater than
or equal to 2.50 to 1.00, 25%; and (e) if the Leverage Ratio is less than 2.50
to 1.00, 0.0%; provided, however, that the Relevant Percentage shall be 100% so
long as any Asset Sale Term Loans or Asset Sale Term Loan Commitments are
outstanding; and provided, further, however, that 100% of the Net Available
Proceeds of issuances of Senior Subordinated Notes, other Permitted Subordinated
Debt or capital stock or other Equity Interests by Allied Waste or its
Subsidiaries received in respect of a Prepayment Event will be used to prepay
outstanding Tranche D Loans and Exchange Notes, if any, or to reduce Tranche D
Commitments if such issuances occur prior to the Effective Date. For purposes of
determining the Relevant Percentage in connection with any Prepayment Event
under circumstances where the proviso to the immediately preceding sentence is
inapplicable, (x) in the case of a Prepayment Event set forth in clause (a) of
the definition of "Prepayment Event", the Leverage Ratio shall be determined as
of the final day of the fiscal quarter most recently ended immediately prior to
the date of consummation of such Asset Sale; (y) in the case of a Prepayment
Event set forth in clause (b) of the definition of "Prepayment Event", the
Leverage Ratio shall be determined as of the date immediately prior to the date
of the receipt or deemed receipt of Net Available Proceeds of such event; and
(z) in the case of a Prepayment Event set forth in clause (c) or (d) of the
definition of "Prepayment Event", the Leverage Ratio shall be determined on a
pro forma basis as of the date of the relevant incurrence of Indebtedness or
issuance of Equity Interests, after giving effect to such incurrence or
issuance.
"repay the Tranche D Obligations" shall have the meaning
assigned thereto in Section 10.03.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Required Lenders" means the Required Senior Lenders and the
Required Tranche D Lenders.
"Required Senior Lenders" means, at any time, Senior Lenders
having Revolving Exposures, Term Loans (other than Tranche D Loans) and unused
Senior Commitments representing more than 50% of the sum of the total Revolving
Exposures, outstanding Term Loans and unused Senior Commitments at such time.
"Required Tranche D Lenders" means, at any time, Tranche D
Lenders having Tranche D Term Loans and unused Tranche D Commitments
representing more than 50% of the sum of the total outstanding Tranche D Term
Loans and unused Tranche D Commitments at such time.
"Responsible Officer" means any executive officer of Allied
Waste or the Borrower (including, without limitation, any Financial Officer).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Allied Waste, the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in Allied Waste,
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such Equity Interests in Allied Waste, the Borrower or any Subsidiary.
"Restricted Subsidiary" means the Borrower, BFI and each other
Subsidiary of Allied Waste that has not been designated by the Borrower as an
Unrestricted Subsidiary pursuant to and in compliance with Section 6.16A and
Section 6.12B. On the date hereof, all Subsidiaries of Allied Waste are
Restricted Subsidiaries.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Senior
Lender, the commitment, if any, of such Senior Lender to make Revolving Loans
and to acquire participations in Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Senior Lender's Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Senior Lender pursuant
to Section 9.04. The initial amount of each Senior Lender's Revolving Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Senior Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Senior Lenders' Revolving
Commitments is $1,500,000,000.
"Revolving Exposure" means, with respect to any Senior Lender
at any time, the sum of the outstanding principal amount of such Senior Lender's
Revolving Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Senior Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired, a Senior
Lender with Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (f) of
Section 2.01.
"Revolving Maturity Date" means the date that is six years
after the Effective Date.
"Rolling Period" means any period of four consecutive fiscal
quarters of Allied Waste.
"Secured Parties" has the meaning assigned to such term in the
Non-Shared Collateral Security Agreement.
"Security Agreements" means the Non-Shared Collateral Security
Agreement and the Shared Collateral Security Agreement.
"Security Documents" means the Security Agreements, the
Non-Shared Collateral Pledge Agreement, the Shared Collateral Pledge Agreement,
the Parent Guarantee Agreement, the Subsidiary Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement, the Collateral Trust
Agreement and each other security agreement or other instrument or document
executed and delivered pursuant to Section 5.10A to secure any of the
Obligations.
"Senior Commitment" means a Revolving Commitment, Asset Sale
Term Loan Commitment, Tranche A Commitment, Tranche B Commitment or Tranche C
Commitment, or any combination thereof (as the context requires).
"Senior Default" means any event or condition which
constitutes a Senior Event of Default or which upon notice, lapse of time or
both would, unless cured or waived, become a Senior Event of Default.
"Senior Event of Default" has the meaning assigned to such
term in Article VII.
"Senior Indebtedness" means the following obligations, whether
outstanding on the date of this Agreement or thereafter issued:
(i) all obligations consisting of the Bank Indebtedness;
(ii) all obligations consisting of the principal of and
premium, if any, and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower regardless of whether
post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Borrower for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which the Borrower is responsible or liable;
(iii) all Capitalized Lease Obligations of the Borrower;
(iv) all obligations of the Borrower (A) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction, (B) under interest rate swaps, caps, collars,
options and similar arrangements and foreign currency xxxxxx entered
into in respect of any obligations described in clauses (i), (ii) and
(iii) or (C) issued or assumed as the deferred purchase price of
property and all conditional sale obligations of the Borrower and all
obligations of the Borrower under any title retention agreement;
(v) all obligations of other persons of the type referred to
in clauses (ii), (iii) or (iv) and all dividends of other persons for
the payment of which, in either case, the Borrower is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including guarantees of such obligations and dividends; and
(vi) all obligations of the Borrower consisting of
modifications, renewals, extensions, replacements and refundings of any
obligations described in clauses (i), (ii), (iii), (iv) or (v);
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations, are not superior
in right of payment to the Tranche D Term Loans; provided, however, that Senior
Indebtedness shall not include (1) any obligation of the Borrower to any
Subsidiary, (2) any liability for Federal, state, local or other taxes owed or
owing by the Borrower, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any Junior Indebtedness
or any indebtedness, guarantee or obligation of the Borrower that is subordinate
or junior to any other indebtedness, guarantee or obligation of the Borrower or
(5) any Indebtedness that is incurred in violation of this Agreement.
"Senior Lenders" means the Persons listed on Schedule 2.01(a)
and any other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Senior Lenders" includes the Swingline Lender.
"Senior Loans" means Senior Term Loans and Revolving Loans.
"Senior Obligations" means (i) the obligations of the Borrower
hereunder to pay the principal of, premium, if any, and interest on the Senior
Loans and all other monetary obligations, including fees, costs, expenses,
indemnities and penalties, whether primary, secondary, direct, contingent, fixed
or otherwise, of the Borrower to the Senior Lenders in their capacities as such
under this Agreement or any other Loan Document, (ii) all other "Obligations",
as such term is defined in the Non-Shared Collateral Security Agreement and
(iii) all obligations of Loan Parties under the Parent Guarantee Agreement,
Subsidiary Guarantee Agreement, Security Agreements and Pledge Agreements.
"Senior Subordinated Indebtedness" means the Tranche D Loans,
the Senior Subordinated Notes, and any other Indebtedness of the Borrower that
specifically provides that such Indebtedness is to rank pari passu with the
Tranche D Loans and is not subordinated by its terms to any Indebtedness or
other obligation of the Borrower that is not Senior Indebtedness.
"Senior Subordinated Notes" means up to $2,500,000,000 in
aggregate principal amount of Permitted Subordinated Debt in the form of senior
subordinated Indebtedness issued, in one or more series having substantially the
same provisions (other than maturity and price terms) by the Borrower pursuant
to the Subordinated Debt Documents.
"Senior Term Loans" means Asset Sale Term Loans, Tranche A
Term Loans, Tranche B Term Loans and Tranche C Term Loans.
"Shared Collateral Pledge Agreement" means the Shared
Collateral Pledge Agreement, substantially in the form of Exhibit J, among BFI,
Subsidiaries of BFI that are Subsidiary Loan Parties and the Collateral Trustee
for the benefit of the Shared Collateral Secured Parties.
"Shared Collateral Secured Parties" means the "Secured
Parties" as defined in the Shared Collateral Security Agreement.
"Shared Collateral Security Agreement" means the Shared
Collateral Security Agreement, substantially in the form of Exhibit K, among
BFI, Subsidiaries of BFI that are Subsidiary Loan Parties and the Collateral
Trustee for the benefit of the Shared Collateral Secured Parties.
"Shares" means shares of common stock of BFI.
"S&P" means Standard & Poor's.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person on a going concern basis is not less than the
amount that will be required to pay the probable liability of such Person on its
Indebtedness as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur Indebtedness or liabilities
beyond such Person's ability to pay as such Indebtedness and liabilities mature
and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small amount of capital. The portion of
contingent liabilities of any Person at any time that shall be includes for
purposes of the above determinations shall be the amount of such contingent
liabilities that, in light of all facts and circumstances existing at such time,
could reasonably be expected to become actual matured liabilities of such
Person.
"Specified Assets" means the assets set forth on Schedule
5.20A which have been identified by Allied Waste as being held for sale.
"Specified Subsidiary" means a Domestic Subsidiary of Allied
Waste or the Borrower (including Domestic Subsidiaries formed or acquired
pursuant to Permitted Acquisitions), but in any event excluding Inactive
Subsidiaries and Insurance Subsidiaries.
"Sponsor Preferred Stock" means shares of convertible
Preferred Stock of Allied Waste to be issued and sold to the Sponsors on the
Effective Date, and any shares of the same class of such Preferred Stock issued
in payment of dividends on outstanding shares of such class of Preferred Stock.
"Sponsor Preferred Stock Purchase" means the purchase by the
Sponsors of Sponsor Preferred Stock for not less than $1,000,000,000 cash
consideration paid to Allied Waste on or before the Effective Date.
"Sponsors" means Blackstone, Apollo and other investors in
Sponsor Preferred Stock reasonably satisfactory to the Initial Lenders.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentage shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subordinated Debt Documents" means the indenture or other
agreement under which the Senior Subordinated Notes are issued and all other
instruments, agreements and other documents evidencing or governing the Senior
Subordinated Notes or providing for any Guarantee or other right in respect
thereof.
"Subordinated Indemnity, Subrogation and Contribution
Agreement" means the Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit E-2, among Allied Waste, the Borrower, the
Subsidiary Loan Parties and the Administrative Agent.
"Subordinated Parent Guarantee Agreement" means the
Subordinated Parent Guarantee Agreement substantially in the form of Exhibit L,
made by Allied Waste in favor of the Administrative Agent for the benefit of the
Tranche D Lenders.
"Subordinated Subsidiary Guarantee Agreement" means the
Subordinated Subsidiary Guarantee Agreement substantially in the form of Exhibit
M, made by the Subsidiary Loan Parties in favor of the Administrative Agent for
the benefit of the Tranche D Lenders.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of Allied Waste. For
purposes of the representations and warranties made herein on (and the
conditions to borrowing on) the Effective Date, the term "Subsidiary" includes
each of BFI and its subsidiaries. Notwithstanding anything herein to the
contrary, Ref-Fuel shall not be deemed to be a Subsidiary or a member of the
Allied Group unless Ref-Fuel becomes a wholly owned subsidiary.
"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit N, made by the
Subsidiary Loan Parties in favor of the Collateral Agent for the benefit of the
Secured Parties.
"Subsidiary Loan Party" means each Specified Subsidiary,
including BFI.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Senior Lender at any time shall be its Applicable Percentage of
the total Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Senior Term Loans and Tranche D Term Loans.
"Total Indebtedness" means, at any date, the sum of:
(a) all Indebtedness (other than Indebtedness described in
clauses (e), (f) and (j) of the definition of the term "Indebtedness")
of members of the Allied Group which at such time would be required to
be reflected as liabilities for borrowed money on a Consolidated
balance sheet of Allied Waste and its Subsidiaries prepared as of such
date in accordance with GAAP; and
(b) the face amount of Cash-Pay Preferred Stock of members of
the Allied Group outstanding on such date to the extent that (i) any
member of the Allied Group has undertaken to redeem or repurchase such
Cash-Pay Preferred Stock for cash or other assets at a fixed or
determinable date or dates prior to the date that is six months after
the Tranche C Maturity Date, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer (other than upon the occurrence of a change in
control) or (ii) such Cash-Pay Preferred Stock is redeemable or
required to be repurchased for cash or other assets by any member of
the Allied Group on any date prior to the date that is six months after
the Tranche C Maturity Date at the option of the holder thereof.
"Tranche A Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the date that is 60
days after the Effective Date and the date of termination of the Tranche A
Commitments.
"Tranche A Commitment" means, with respect to each Senior
Lender, the commitment, if any, of such Senior Lender to make a Tranche A Term
Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Tranche A Term Loan to be made by such Senior
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Senior Lender pursuant to Section 9.04. The initial
amount of each Senior Lender's Tranche A Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Senior Lender
shall have assumed its Tranche A Commitment, as applicable. The initial
aggregate amount of the Senior Lenders' Tranche A Commitments is $1,750,000,000.
"Tranche A Lender" means a Senior Lender with a Tranche A
Commitment or an outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means the date that is six years
after the Effective Date.
"Tranche A Term Loan" means a Loan made pursuant to clause (b)
of Section 2.01.
"Tranche B Commitment" means, with respect to each Senior
Lender, the commitment, if any, of such Senior Lender to make a Tranche B Term
Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Tranche B Term Loan to be made by such Senior
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Senior Lender pursuant to Section 9.04. The initial
amount of each Senior Lender's Tranche B Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Senior Lender
shall have assumed its Tranche B Commitment, as applicable. The initial
aggregate amount of the Senior Lenders' Tranche B Commitments is $1,250,000,000.
"Tranche B Lender" means a Senior Lender with a Tranche B
Commitment or an outstanding Tranche B Term Loan.
"Tranche B Margin" means, with respect to any Tranche B Term
Loan (a) 1.75% per annum, in the case of an ABR Loan or (b) 2.75% per annum, in
the case of a Eurodollar Loan.
"Tranche B Maturity Date" means the date that is seven years
after the Effective Date.
"Tranche B Term Loan" means a Loan made pursuant to clause (c)
of Section 2.01.
"Tranche C Commitment" means, with respect to each Senior
Lender, the commitment, if any, of such Senior Lender to make a Tranche C Term
Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Tranche C Term Loan to be made by such Senior
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Senior Lender pursuant to Section 9.04. The initial
amount of each Senior Lender's Tranche C Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Senior Lender
shall have assumed its Tranche C Commitment, as applicable. The initial
aggregate amount of the Senior Lenders' Tranche C Commitments is $1,500,000,000.
"Tranche C Margin" means, with respect to any Tranche C Term
Loan (a) 2.00% per annum, in the case of an ABR Loan or (b) 3.00% per annum, in
the case of Eurodollar Loan.
"Tranche C Maturity Date" means the date that is eight years
after the Effective Date.
"Tranche C Term Loan" means a Loan made pursuant to clause (d)
of Section 2.01.
"Tranche D Assignment and Acceptance" means an assignment and
acceptance entered into by a Tranche D Lender and an assignee (with the consent
of any party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A-2 or any other form approved by
the Administrative Agent.
"Tranche D Commitment" means, with respect to each Tranche D
Lender, the commitment, if any, of such Tranche D Lender to make a Tranche D
Term Loan hereunder on the Effective Date, expressed as an amount representing
the maximum principal amount of the Tranche D Term Loan to be made by such
Tranche D Lender hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Tranche D Lender pursuant to Section 9.04.
The initial amount of each Tranche D Lender's Tranche D Commitment is set forth
on Schedule 2.01(b), or in the Assignment and Acceptance pursuant to which such
Tranche D Lender shall have assumed its Tranche D Commitment, as applicable. The
initial aggregate amount of the Tranche D Lender's Tranche D Commitments is
$2,500,000,000.
"Tranche D Default" means any event or condition which
constitutes a Tranche D Event of Default or which upon notice, lapse of time or
both would, unless cured or waived, become a Tranche D Event of Default.
"Tranche D Event of Default" has the meaning assigned to such
term in Article VII.
"Tranche D Lenders" means the Persons listed on Schedule
2.01(b) and any other Person that shall have become a party hereto pursuant to a
Tranche D Assignment and Acceptance, other than any such Person that ceases to
be a party hereto pursuant to a Tranche D Assignment and Acceptance. After the
first anniversary of the Effective Date, Tranche D Lenders shall be deemed to
include any Exchange Note Holders for purposes of Sections 2.10 and 2.11.
"Tranche D Loan Documents" means this Agreement, the
Subordinated Parent Guarantee Agreement and the Subordinated Subsidiary
Guarantee Agreement.
"Tranche D Margin" means, for any day, with respect to any ABR
Loan or Eurodollar Loan that is a Tranche D Loan, the applicable interest rate
margin per annum set forth below under the caption "ABR Spread" or "Eurodollar
Spread", based upon the period elapsed since the Effective Date:
-------------------------------------------------- ---------------------------------- =====================
Period Since the Eurodollar
Effective Date ABR Spread Spread
-------------------------------------------------- ---------------------------------- =====================
-------------------------------------------------- ---------------------------------- =====================
Category 1 2.50% 3.50%
----------
Less than 12 months
-------------------------------------------------- ---------------------------------- =====================
-------------------------------------------------- ---------------------------------- =====================
Category 2 3.00% 4.00%
----------
Greater than or equal to 12 months and less than
15 months
-------------------------------------------------- ---------------------------------- =====================
-------------------------------------------------- ---------------------------------- =====================
Category 3 3.50% 4.50%
----------
Greater than or equal to 15 months and less than
18 months
-------------------------------------------------- ---------------------------------- =====================
-------------------------------------------------- ---------------------------------- =====================
Category 4 4.00% 5.00%
----------
Greater than or equal to 18 months and less than
21 months
-------------------------------------------------- ---------------------------------- =====================
-------------------------------------------------- ---------------------------------- =====================
Category 5 4.25% 5.25%
----------
Greater than 21 months
-------------------------------------------------- ---------------------------------- =====================
For purposes of the foregoing, the period of time elapsed
since the Effective Date shall be deemed to be in Category 5 at any time that an
Event of Default has occurred and is continuing.
"Tranche D Maturity Date" means the date that is eight years
after the Effective Date.
"Tranche D Obligations" means the obligations of the Borrower
hereunder to pay the principal of, premium, if any, and interest on the Tranche
D Loans and all other monetary obligations, including fees, costs, expenses,
indemnities and penalties, whether primary, secondary, direct, contingent, fixed
or otherwise, of the Borrower to the Tranche D Lenders in their capacities as
such under this Agreement or any other Loan Document.
"Tranche D Representations and Warranties" has the meaning
specified in Section 3.24
"Tranche D Term Loan" means a Loan made pursuant to Clause (e)
of Section 2.01 (and such term shall be deemed to include, after the first
anniversary of the Effective Date, any outstanding Indebtedness evidenced by the
Exchange Notes).
"Transactions" means the Merger and the other transactions
described in the preamble to this Agreement.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code
(and any similar law) in effect in any applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary that has been
designated by the board of directors of the Borrower as an "Unrestricted
Subsidiary" pursuant to and in accordance with the provisions of Section 6.16A.
"Voting Stock" of any Person means capital stock of such
Person that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"wholly owned subsidiary" of any Person shall mean a
subsidiary of such Person of which securities (except for directors' qualifying
shares) or other ownership interests representing 100% of the equity or 100% of
the ordinary voting power or 100% of the general partnership interests are, at
the time any determination is being made, owned, controlled or held by such
Person or one or more wholly owned subsidiaries of such Person or by such Person
and one or more wholly owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing" or "Term
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make an Asset Sale Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Asset
Sale Term Loan Commitment, (b) to make Tranche A Term Loans to the Borrower from
time to time during the Tranche A Availability Period in an aggregate principal
amount not exceeding its Tranche A Commitment; provided that not less than the
lesser of (i) $1,250,000,000 of the aggregate Tranche A Commitments or (ii) the
outstanding Tranche A Commitments shall be drawn on the Effective Date, (c) to
make a Tranche B Term Loan to the Borrower on the Effective Date in a principal
amount not exceeding its Tranche B Commitment, (d) to make a Tranche C Term Loan
to the Borrower on the Effective Date in a principal amount not exceeding its
Tranche C Commitment, (e) to make a Tranche D Term Loan to the Borrower on the
Effective Date in a principal amount not exceeding its Tranche D Commitment and
(f) to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall comply with Section 2.17 and
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e). Each Swingline Loan shall be in an amount that is an integral
multiple of $100,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of 35 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Asset Sale Term Loan Maturity Date, Tranche A
Maturity Date, Tranche B Maturity Date, Tranche C Maturity Date or Tranche D
Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, on the day of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing, Asset Sale Term Loan Borrowing, Tranche A Term Borrowing,
Tranche B Term Borrowing, Tranche C Term Borrowing or Tranche D Term
Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender and/or Tranche D Lender, as
applicable, of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$50,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender may, but shall not be
required to, make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Swingline Loans.
Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender's Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall promptly notify the Borrower in writing of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Upon the
Effective Date, the Existing Letters of Credit will automatically, without any
action on the part of any person, be deemed to be Letters of Credit issued
hereunder for the account of the Borrower for all purposes of this Agreement and
the other Loan Documents. In addition, subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit for its
own account or for the account of any other member of the Allied Group (provided
that the Borrower will be a co-applicant and a co-obligor with respect to each
Letter of Credit issued for the account of any other member of the Allied
Group), in a form reasonably acceptable to the Administrative Agent and the
relevant Issuing Bank, at any time and from time to time during the Revolving
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, an Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the
relevant Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Borrower (and any other member of the Allied Group for whose account such
Letter of Credit is issued) shall also submit a letter of credit application on
the Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $800,000,000 (as such amount may be reduced from time to time in integral
multiples of $1,000,000 by notice given by the Borrower to the Administrative
Agent, which shall promptly notify the Revolving Lenders thereof) and (ii) the
total Revolving Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (other than any Existing Letter of
Credit having a later expiration date), or, in the case of any renewal or
extension thereof, one year after such renewal or extension and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the relevant Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
(including each Existing Letter of Credit) equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by the Issuing Bank and not reimbursed by the
Borrower or any other account party on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower or any other account party for any reason. Each Senior Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying (or causing any other account party in respect of such
Letter of Credit to pay) to the Administrative Agent an amount equal to such LC
Disbursement not later than 1:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 1:00 p.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 1:00 p.m., New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 1:00
p.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $1,000,000, the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with an ABR Revolving
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the
Borrower fails to make (or cause another account party to make) such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the relevant Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the appropriate Issuing Bank or, to the extent
that Revolving Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower (or any other account
party in respect of the relevant Letter of Credit) of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit (except as otherwise provided below), or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower (or any other account party)
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Revolving Loans; provided that, if the Borrower fails to reimburse (or cause
another account party to reimburse) such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Addition and Replacement of an Issuing Bank. An Issuing
Bank may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Revolving Lenders of any such
replacement of an Issuing Bank. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit. A Revolving Lender may become an
additional Issuing Bank hereunder pursuant to a written agreement among the
Borrower, the Administrative Agent and such Revolving Lender. The Administrative
Agent shall notify the Revolving Lenders of any such additional Issuing Bank.
Notwithstanding the foregoing, the Borrower shall not designate any Revolving
Lender as an Issuing Bank hereunder if, after giving effect thereto, there would
be more than fifteen Issuing Banks (other than Issuing Banks with no outstanding
Letters of Credit other than Existing Letters of Credit).
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Senior Lenders (or, if the
maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Senior Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Senior Event of
Default with respect to the Borrower described in clause (viii) or (ix) of
Section 7.01(a). Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse each Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with LC Exposure representing greater than 50% of
the total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived. If the Borrower is required to provide an amount of cash collateral
hereunder pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after
giving effect to such return, the Borrower would remain in compliance with
Section 2.11(b) and no Default shall have occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 3:00 p.m., New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the relevant Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower each agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Senior Lender and/or Tranche
D Lender, as applicable, of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
(i) if a Senior Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Senior Lenders so notifies
the Borrower, then, so long as a Senior Event of Default is continuing (A) no
outstanding Borrowing (other than a Tranche D Borrowing) may be converted to or
continued as a Eurodollar Borrowing and (B) unless repaid, each Eurodollar
Borrowing (other than Tranche D Borrowings) shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto, and (ii) if a
Tranche D Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Tranche D Lenders so notifies the
Borrower, then, so long as a Tranche D Event of Default is continuing (A) no
outstanding Tranche D Borrowing may be converted to or continued as a Eurodollar
Borrowing and (B) unless repaid, each Tranche D Borrowing that is a Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or
continued as a Eurodollar Borrowing if after giving effect thereto (i) the
Interest Period therefor would commence before and end after a date on which any
principal of the Loans of such Class is scheduled to be repaid and (ii) the sum
of the aggregate principal amount of outstanding Eurodollar Borrowings of such
Class with Interest Periods ending on or prior to such scheduled repayment date
plus the aggregate principal amount of outstanding ABR Borrowings of such Class
would be less than the aggregate principal amount of Loans of such Class
required to be repaid on such scheduled repayment date.
SECTION 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, (i) the Asset Sale Term Loan Commitments, Tranche
B Commitments, Tranche C Commitments, Tranche D Commitments and Tranche A
Commitments in excess of $500,000,000 shall terminate at 5:00 p.m., New York
City time, on the Effective Date, (ii) the Revolving Commitments shall terminate
on the Revolving Maturity Date and (iii) the undrawn balance of the Tranche A
Commitments shall terminate at 5:00 p.m., New York City time, on the last day of
the Tranche A Availability Period.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class; provided that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) If any prepayment of Term Borrowings is required pursuant
to Section 2.11 but cannot be made because there are no Term Borrowings
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Borrowings, then, on the date that such prepayment is
required, the Revolving Commitments shall be reduced by an aggregate amount
equal to the amount of the required prepayment, or the excess of such amount
over the outstanding amount of Term Borrowings, as the case may be.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, or any required reduction of the Revolving Commitments under paragraph
(b) or (c) of this Section, at least three Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Senior Lenders and/or the Tranche D
Lenders, as applicable, of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Senior Lender the then unpaid principal amount of each
Revolving Loan of such Senior Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Senior Lender and Tranche D Lender,
as applicable, the then unpaid principal amount of each Term Loan of such Lender
as provided in Section 2.10 and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Revolving Maturity
Date and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least ten Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to
adjustment pursuant to paragraph (e) of this Section, the Borrower shall repay
Tranche A Term Borrowings on each date set forth below in the aggregate
principal amount set forth opposite such date:
Date Amount
September 30, 2000 $ 75,000,000
September 30, 2001 $100,000,000
September 30, 2002 $250,000,000
September 30, 2003 $350,000,000
September 30, 2004 $450,000,000
(b) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche B Term Borrowings in the aggregate
principal amount of $5,000,000 on September 30 of each year, beginning on
September 30, 2001.
(c) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche C Term Borrowings in the aggregate
principal amount of $5,000,000 on September 30 of each year, beginning on
September 30, 2001.
(d) To the extent not previously paid, (i) all Asset Sale Term
Loans shall be due and payable on the Asset Sale Term Loan Maturity Date, (ii)
all Tranche A Term Loans shall be due and payable on the Tranche A Maturity
Date, (iii) all Tranche B Term Loans shall be due and payable on the Tranche B
Maturity Date, and (iv) all Tranche C Term Loans shall be due and payable on the
Tranche C Maturity Date and (v) all Tranche D Term Loans shall be due and
payable on the Tranche D Maturity Date.
(e) If the initial aggregate amount of the Lenders' Term
Commitments of any Class exceeds the aggregate principal amount of Term Loans of
such Class that are made on the Effective Date (or, in the case of Tranche A
Term Loans, outstanding at 5:00 p.m., New York City time, on the last day of the
Tranche A Availability Period), then the scheduled repayments of Term Borrowings
of such Class to be made pursuant to this Section shall be reduced ratably by an
aggregate amount equal to such excess. Any prepayment of a Term Borrowing of any
Class shall be applied to reduce the subsequent scheduled repayments of the Term
Borrowings of such Class to be made pursuant to this Section ratably; provided
that at the option of the Borrower, any prepayment made pursuant to Section
2.11(a) may be applied either (a) first to reduce the next scheduled repayments
of the Term Borrowings of such Class to be made pursuant to this Section in
order of maturity or (b) ratably.
(f) If any Senior Subordinated Notes or other Permitted
Subordinated Debt or any capital stock or other Equity Interest (other than
capital stock issued pursuant to management compensation plans and the Sponsor
Preferred Stock Purchase) is issued by Allied Waste or its Subsidiaries on or
before the Effective Date, an amount equal to the Net Available Proceeds of such
Permitted Subordinated Debt and the Net Available Proceeds of any such equity
issuance shall be allocated (i) first, to reduce the Tranche D Commitments and
accordingly the amount of Tranche D Term Borrowings on the Effective Date, (ii)
second, to reduce Asset Sale Term Loan Commitments (and accordingly the amount
of Asset Sale Term Loan Borrowings on the Effective Date) and (iii) third, to
the extent of any additional Net Available Proceeds, to reduce A, B, and C Term
Commitments (and accordingly the amounts of A, B and C Term Borrowings on (or in
the case of Tranche A Term Borrowings, on or after) the Effective Date) on a pro
rata basis in accordance with the relative outstanding amounts of such
Commitments at the time of such reductions.
(g) If any Asset Sales are effected by Allied Waste or its
Subsidiaries or by BFI or its subsidiaries on or before the Effective Date, an
amount equal to the Net Available Proceeds of such Asset Sales shall be
allocated (i) first, to reduce Asset Sale Term Loan Commitments (and accordingly
the amount of Asset Sale Term Loan Borrowings on the Effective Date) and (ii)
second, to reduce A, B and C Term Commitments (and accordingly the amounts of A,
B and C Term Borrowings on (or in the case of Tranche A Term Borrowings, on or
after) the Effective Date) on a pro rata basis in accordance with the relative
outstanding amounts of such Commitments at the time of such reductions.
(h) If mandatory prepayment amounts arise from the issuance of
Senior Subordinated Notes or equity securities (other than in connection with
the Sponsor Preferred Stock Purchase) by Allied Waste or the Borrower after the
Effective Date, then, subject to Section 2.11(c), the Net Available Proceeds
thereof shall be allocated (i) first, to repay outstanding Tranche D Term
Borrowings, (ii) second, to repay outstanding Asset Sale Term Borrowings and
(iii) third, to the extent of any remaining Net Available Proceeds, to repay A,
B and C Term Borrowings or reduce the Tranche A Commitments, as appropriate, on
a pro rata basis in accordance with the respective outstanding amounts of such
Borrowings and the then remaining unused Tranche A Commitments at the time of
such prepayment.
(i) Notwithstanding the provisions of paragraph (g) above, if
Net Available Proceeds from Asset Sales referred to in such paragraph are
received on, before or after the Effective Date and (after giving effect to any
allocation of a portion of such Net Available Proceeds to repay Asset Sale Term
Borrowings or reduce Asset Sale Term Loan Commitments) (x) there are no then
outstanding Asset Sale Term Loans or Asset Sale Term Loan Commitments and (y)
the outstanding Tranche D Commitments or Tranche D Term Borrowings, as
applicable, have been reduced to not more than $500,000,000 from the application
of at least $2,000,000,000 of net proceeds from the sale of Senior Subordinated
Notes and or equity securities (other than in connection with the Sponsor
Preferred Stock Purchase) of Allied Waste, then, subject to Section 2.11(c) such
Net Available Proceeds from Asset Sales may, at the Borrower's option, be
applied (to the extent not required to repay in full all Asset Sale Term Loans
or terminate in full all Asset Sale Term Loan Commitments) to repay outstanding
Tranche D Term Borrowings or reduce Tranche D Term Commitments, as the case may
be, until such Tranche D Term Borrowings are paid in full and such Tranche D
Commitments are terminated in full, and then to repay A, B and C Term Borrowings
or reduce Tranche A Commitments, as applicable, on a pro rata basis in
accordance with the respective outstanding amounts of such Borrowings and the
then remaining unused Tranche A Commitments at the time of such prepayment.
(j) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 1:00 p.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Loans shall be accompanied
by accrued interest on the amount repaid.
(k) So long as Tranche A Term Loans are outstanding, any
Lender holding Tranche B Term Loans or Tranche C Term Loans may, on not less
than one Business Day's prior written notice to the Administrative Agent, elect
not to have any mandatory prepayment to be made out of Excess Cash Flow pursuant
to Section 2.11(d) applied to such Lender's Tranche B Term Loans or Tranche C
Term Loans, in which case the amount not so applied shall be applied to prepay
Tranche A Term Loans.
(l) So long as Asset Sale Term Loans or Tranche A Term Loans
are outstanding, the Borrower may, at its election, afford the Lenders holding
Tranche B Loans or Tranche C Loans the right to elect on not less than one
Business Day's prior written notice to the Administrative Agent with respect to
any optional prepayment pursuant to Section 2.11(a), not to have such prepayment
applied to such Lender's Tranche B Term Loans or Tranche C Term Loans, in which
case the amount not so applied shall be applied to prepay Asset Sale Term Loans
and Tranche A Term Loans on a pro rata basis in accordance with the outstanding
amounts thereof and otherwise as described in Section 2.10(n).
(m) If at the time of any mandatory prepayment made during the
Tranche A Availability Period, the Tranche A Term Loan has not been fully drawn,
the amount of such mandatory prepayment allocable to the undrawn portion of the
Tranche A Term Loan may be retained by the Borrower and the Tranche A
Commitments will be permanently reduced by such amount.
(n) Except as set forth in paragraphs (f), (g), (h), (i), (k),
and (l), and subject to Section 2.11(c), (i) all Net Available Proceeds to be
applied at any time to prepay Term Borrowings pursuant to Section 2.11 shall be
applied (A) first, to repay outstanding Asset Sale Term Borrowings and (B)
second, to the extent of any remaining Net Available Proceeds, to repay A, B and
C Term Borrowings, or reduce the Tranche A Commitments, as appropriate, on a pro
rata basis in accordance with the respective outstanding amounts of such
Borrowings and the then remaining unused Tranche A Commitments at the time of
such prepayment; and (ii) all Excess Cash Flow to be applied at any time to
prepay Term Borrowings pursuant to Section 2.11 shall be applied to repay the
Senior Term Loans at the Borrower's option, in order of maturity of such
Borrowings or on a pro rata basis in accordance with the respective outstanding
amounts of such Borrowings at the time of such prepayment.
Each payment of Borrowings pursuant to this Section 2.10 shall
be accompanied by accrued interest on the principal amount paid to but excluding
the date of payment.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section provided that on or after
the first anniversary of the Effective Date, when such prepaid Borrowing is a
Tranche D Loan, the Borrower shall be required to redeem a ratable amount of any
outstanding Exchange Notes in accordance with the provisions of Article 3 of the
Exchange Note Indenture.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Available
Proceeds are received by or on behalf of Allied Waste, the Borrower or any
Restricted Subsidiary or BFI or any subsidiary of BFI in respect of any
Prepayment Event, the Borrower shall, within three Business Days after such Net
Available Proceeds are received, prepay Term Borrowings (or reduce Term Loan
Commitments, in the case of Net Available Proceeds received on or before the
Effective Date) in an aggregate amount equal to the amount of the Relevant
Percentage of such Net Available Proceeds required to be applied or allocated in
accordance with Sections 2.10(f), (g), (h), (i), (j), (k), (l) and (n); provided
that on or after the first anniversary of the Effective Date, the Relevant
Percentage of Net Available Proceeds received in respect of any Prepayment Event
and prepaid in accordance with such sections to the Tranche D Lenders shall be
applied ratably to prepay Tranche D Loans and redeem any outstanding Exchange
Notes in accordance with Article 3 of the Exchange Note Indenture; provided
further that in the case of Net Available Proceeds arising out of the sale of
Specified Assets, the issuance of the Senior Subordinated Notes, the issuance of
Permitted Cure Securities or the issuance or incurrence of Indebtedness pursuant
to Section 6.01A(xvi), the Borrower shall prepay Term Borrowings in an aggregate
amount equal to 100% of Net Available Proceeds in accordance with such sections;
provided further that, in the case of any event described in clause (a) of the
definition of the term Prepayment Event occurring after the repayment in full of
all Asset Sale Term Loans (other than in connection with a sale of Specified
Assets), if the Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer to the effect that the Borrower and the Subsidiaries
intend to apply the Net Available Proceeds from such event, within one year
after receipt of such Net Available Proceeds, to acquire real property,
equipment or other tangible assets (including pursuant to Permitted
Acquisitions) to be used in the business of the Borrower and the Subsidiaries,
and certifying that no Event of Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of Net
Available Proceeds so applied by the end of such one-year period. The amount of
the Relevant Percentage of such Net Available Proceeds not so applied by the end
of such one-year period shall be applied to the prepayment of Term Borrowings as
if received on the date on which such status is first ascertainable. Any Net
Available Proceeds required to be applied to the reduction of Tranche A
Commitments or the prepayment of Tranche A Term Loans shall be applied (i)
first, to the prepayment of Tranche A Term Loans then outstanding, if any, and
(ii) second, to permanently reduce the Tranche A Commitments. Notwithstanding
any other provision of this Agreement, including the provisions of Sections 2.10
and 2.11, any and all proceeds, including any Net Available Proceeds, from the
sale or disposition of Collateral subject to Liens under the Security Agreements
or the Pledge Agreements at the time of such sale or disposition and made
pursuant to the exercise of remedies under such Security Documents shall be
applied in accordance with the provisions of the applicable Security Agreement
or Pledge Agreement rather than the provisions of this Agreement.
(d) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending December 31, 2000, the Borrower shall
prepay Senior Term Loans in an aggregate amount equal to 75% of Excess Cash Flow
for such fiscal year, in accordance with Sections 2.10(j), (k), (l) and (n).
Each prepayment pursuant to this paragraph shall be made on or before the date
on which financial statements are delivered pursuant to Section 5.04(A) with
respect to the fiscal year for which Excess Cash Flow is being calculated (and
in any event within 105 days after the end of such fiscal year).
(e) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 1:00 p.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 1:00 p.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 1:00 p.m., New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an Loan of a Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment of such Lender during the period from and including the date hereof
to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears (i) in the case of commitment fees
in respect of the Revolving Commitments and Tranche A Commitments, on the last
day of March, June, September and December of each year and on the date on which
the Revolving Commitments or Tranche A Commitments, as applicable, terminate,
commencing on the first such date to occur after the date hereof, and (ii) in
the case of commitment fees in respect of the Asset Sale Loan Commitments,
Tranche B Commitments, Tranche C Commitments, and Tranche D Commitments on the
Effective Date or any earlier date on which such Commitments terminate. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). For purposes of computing commitment fees with respect
to Revolving Commitments, a Revolving Commitment of a Lender shall be deemed to
be used to the extent of the outstanding Revolving Loans and LC Exposure of such
Lender (and the Swingline Exposure of such Lender shall be disregarded for such
purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Margin as interest on Eurodollar Revolving Loans on the daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or
rates per annum separately agreed upon between the Borrower and such Issuing
Bank, not to exceed 0.25% per annum, on the outstanding amount of each Letter of
Credit issued by such Issuing Bank during the period from and including the date
of issuance thereof to but excluding the date of termination, expiration or
drawing in full of such Letter of Credit, as well as such Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to an Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to an Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by either the Required
Senior Lenders or the Required Tranche D Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or Issuing Bank's capital or on the
capital of such Lender's or Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level below that which such Lender or such Issuing Bank or such
Lender's or Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided that
the Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 90 days prior to the date that such Lender or Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Notwithstanding the foregoing, Section 2.17, and not this
Section 2.15, is the only section of this Agreement that deals with increased
costs with respect to Taxes.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(e) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the Eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Foreign Lender (and, where required by applicable
law, such Foreign Lender's beneficial owners) shall deliver to the Borrower
(with a copy to the Administrative Agent) two copies of either United States
Internal Revenue Service Form 1001 or Form 4224 (and, in either case, two copies
of Form W-8), or, in the case of a Foreign Lender claiming exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Foreign Lender (and, as applicable,
such Foreign Lender's beneficial owners) delivers a Form W-8, a certificate in
the form of the certificate attached hereto as Exhibit P (the "Portfolio
Exemption Certificate") representing, inter alia, that such Foreign Lender (and,
as applicable, such Foreign Lender's beneficial owners) is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder of the
Borrower (within the meaning of Section 871(h)(3)(B) of the Code) and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), and such other forms or statements reasonably
requested by the Borrower, in the case of all the foregoing, properly completed
and duly executed by such Foreign Lender (and, as applicable, such Foreign
Lender's beneficial owners) claiming complete exemption from, or reduced rate
of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement or any other Loan Document. Such forms shall be delivered by each
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners) on
or before the date it becomes a party to this Agreement or designates a new
lending office. In addition, each Foreign Lender (and, as applicable, such
Foreign Lender's beneficial owners) shall deliver such forms promptly upon the
obsolescence, expiration or invalidity of any form previously delivered by such
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners). In
the case of a Foreign Lender (and, as applicable, such Foreign Lender's
beneficial owners) that delivers a Portfolio Interest Exemption Certificate,
such Foreign Lender (and, as applicable, its beneficial owners) shall deliver
such certificate and other forms as reasonably requested by the Borrower on a
biannual basis. In addition, each Foreign Lender agrees to notify promptly the
Borrower and the Administrative Agent if it (or, as applicable, its beneficial
owners) is no longer able to deliver, or if it is required to withdraw or
cancel, any form or statement previously delivered by it pursuant to this
Section 2.17(e). Notwithstanding any other provision of this Section 2.17, a
Foreign Lender (and, as applicable, such Foreign Lender's beneficial owners)
shall not be required to deliver any form pursuant to this Section 2.17(e) that
such Foreign Lender (and, as applicable, such Foreign Lender's beneficial
owners) is not legally able to deliver (it being understood and agreed that the
Borrower shall withhold or deduct such amounts from any payments made to such
Foreign Lender that the Borrower reasonably determines are required by law).
(ii) Each Lender that is not a Foreign Lender shall deliver to
Borrower (with a copy to the Administrative Agent) two copies of United Internal
Revenue Service Form W-9, or any subsequent versions thereof or successors
thereto, unless such Lender otherwise establishes that such Lender is otherwise
eligible for an exemption from backup withholding tax or any other applicable
withholding tax. Such forms shall be delivered by such Lender on or before the
date it becomes a party to this Agreement or designates a new lending office and
such Lender shall deliver such forms promptly upon the obsolescence, expiration
or invalidity of any form previously delivered by such Lender.
(iii) Each Lender (and each former Lender) agrees to indemnify and
hold harmless the Borrower and the Administrative Agent from and against any
Taxes imposed by or on behalf of the United States or any taxing jurisdiction
thereof (including any interest, penalty, addition to tax or additional amount
due) and reasonable expenses arising therefrom or with respect thereto
("Losses") incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes imposed by or on behalf of the
United States or any taxing jurisdiction thereof from any payments made pursuant
to this Agreement which failure resulted from the Borrower's or the
Administrative Agent's reliance on any representation, covenant, form,
statement, certificate or other information provided to it by such Lender
pursuant to this Section 2.17(e) including, for the avoidance of doubt, (x) any
Losses arising by virtue of such Lender being a "conduit entity" within the
meaning of Treasury Reg. Section 1.881-3 or any successor provision thereto and
(y) in the case of a Lender which sells a participation, any Losses which arise
as a result of such participation but, in all cases, excluding Losses resulting
solely from any action or failure to act by the Borrower (other than the
Borrower's reliance on any such representation, covenant, form, statement or
certificate or any such action as required by applicable law or by this
Agreement).
(f) If the Administrative Agent or a Lender or the Issuing
Bank determines, in its reasonable, good faith judgment that it has received a
refund of or with respect to any Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.17 with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender or the Issuing Bank and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund);
provided, however, that the Borrower, upon the request of the Administrative
Agent or such Lender or the Issuing Bank, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender or
the Issuing Bank in the event the Administrative Agent or such Lender or the
Issuing Bank is required to repay such refund to such Governmental Authority.
Nothing contained in this Section 2.17 shall require the Administrative Agent or
any Lender or the Issuing Bank to make available its tax returns (or any other
information relating to its Taxes which it deems confidential) to the Borrower
or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 2:00 p.m., New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to an Issuing Bank or the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to payment of interest and fees then due in respect
of Senior Loans, Letters of Credit and Commitments (other than Tranche D
Commitments) hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, (ii) second, to
payment of principal of Senior Loans and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties,
(iii) third, to payment of interest and fees then due in respect of Tranche D
Term Loans and Tranche D Commitments hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (iv) fourth, to payment of principal of Tranche D Term Loans
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties; provided, however, that
the application of any such funds shall at all times be subject to the
provisions of Article X.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Senior Term Loans, Tranche D Term Loans
or participations in LC Disbursements or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Senior Term Loans, Tranche D Term Loans or participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Senior Term Loans, Tranche D Term Loans or participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Senior Term Loans, Tranche D Term Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, (ii)
the provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply) and (iii) the foregoing provisions and the receipt and
application of any payment in respect of Tranche D Term Loans or other Tranche D
Obligations shall be subject to the provisions of Article X. The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
such Issuing Bank, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or such
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, each Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
Representations and Warranties
Each of Allied Waste and the Borrower jointly and severally
represents and warrants to the Lenders that (it being understood and agreed that
any representation or warranty made or deemed made with respect to actions or
events occurring on or prior to the Effective Date in Sections 3.04, 3.07, 3.09,
3.10, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.20 or 3.21 with respect to BFI and
its subsidiaries is made to the knowledge of the Borrower and Allied Waste):
SECTION 3.01. Organization; Powers. Each of Allied Waste and
its Restricted Subsidiaries (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not,
individually or in the aggregate, after giving effect to the Transactions,
reasonably be expected to have a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents to which such Loan
Party is a party and the other Transactions:
(a) have been duly authorized by all requisite corporate and,
if required, stockholder action;
(b) in the case of Allied Waste and the Borrower, will not (i)
violate (A) any provision of law, statute, rule or regulation, or of
its certificate or articles of incorporation or other constitutive
documents or by-laws, (B) any material order of any Governmental
Authority or (C) any material provision of any indenture, or other
Material Agreement or instrument to which Allied Waste or the Borrower
is a party or by which either of them or any of their property is or
may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such
indenture or other Material Agreement or instrument or (iii) result in
the creation or imposition of any material Lien upon or with respect to
any property or assets now owned or hereafter acquired by Allied Waste
or the Borrower (other than any Lien created hereunder or under the
Security Documents); and
(c) in the case of members of the Allied Group other than
Allied Waste and the Borrower, will not (i) violate (A) any provision
of law, statute, rule or regulation, or of its certificate or articles
of incorporation or other constitutive documents or by-laws, (B) any
material order of any Governmental Authority or (C) any material
provision of any indenture or other Material Agreement or instrument to
which any of them is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or which notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation
under any such indenture or other Material Agreement or instrument or
(iii) result in the creation or imposition of any material Lien upon or
with respect to any property or assets now owned or hereafter acquired
by any of them (other than any Lien created hereunder or under the
Security Documents, in each case other than violations, conflicts and
breaches referred to in clauses (i) and (ii) above that could not,
individually or in the aggregate, after giving effect to the
Transactions, reasonably be expected to have a Material Adverse Effect
or result in any liability of the Administrative Agent or any Lender.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by each of Allied Waste and the Borrower and constitutes,
and each other Loan Document when executed and delivered by each Loan Party
thereto will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
SECTION 3.04. Governmental Approvals. Except as could not,
individually or in the aggregate after giving effect to the Transactions
reasonably be expected to have a Material Adverse Effect, no action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and other similar
filings to perfect the interests of the Secured Parties in the Collateral, (b)
such as will have been made or obtained and will be in full force and effect as
of the Effective Date, (c) such as may be required in the ordinary course of
business in connection with the performance of the obligations of Allied Waste
and the Borrower hereunder and (d) such as may be required in connection with
sales of capital stock or other ownership interests under the Security
Documents.
SECTION 3.05. Financial Statements. (a) Allied Waste has
heretofore furnished to the Administrative Agent for distribution to the Lenders
the Consolidated balance sheet and statements of income, stockholders' equity
and cash flows of Allied Waste and its Restricted Subsidiaries on a Consolidated
basis (1) as of and for the fiscal year ended December 31, 1998, reported on by
Xxxxxx Xxxxxxxx LLP, independent public accountants, and (2) as of and for the
fiscal quarter and the portion of the fiscal year ended March 31, 1999,
certified by a Financial Officer of Allied Waste. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Allied Waste and its Subsidiaries as of such dates
and for such periods in accordance with GAAP consistently applied, subject to
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (2) of the first sentence of this paragraph.
(b) Allied Waste has heretofore furnished to the
Administrative Agent for distribution to the Lenders (i) its unaudited pro forma
Consolidated balance sheet as of March 31, 1999 and (ii) projected Consolidated
statements of income, stockholders' equity and cash flows of Allied Waste and
its Restricted Subsidiaries (covering the period ending on December 31, 2007),
in each case prepared giving effect to the Transactions as if the Transactions
had occurred as of December 31, 1998. Such pro forma and projected financial
statements have been prepared in good faith by Allied Waste based on the
assumptions and estimates used to prepare the pro forma and projected financial
information in the Confidential Information Memorandum (which assumptions and
estimates are believed by Allied Waste on the date thereof to be reasonable), is
based on the best information available to Allied Waste after due inquiry and
accurately reflects all material adjustments required to be made to give effect
to the Transactions.
SECTION 3.06. No Material Adverse Change. Since December 31,
1998, there has been no material adverse change in the business, condition
(financial or otherwise), operations, performance or properties of Allied Waste
and its Subsidiaries, taken as a whole, after giving effect to the Transactions.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each member of the Allied Group has good title to, or valid leasehold
interests in, all properties and assets which are material to the conduct of the
business of the Allied Group, taken as a whole, except for defects that could
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by the Loan Documents.
(b) Schedule 3.07 sets forth the address of each landfill that
is owned or leased by Allied Waste or any of its Restricted Subsidiaries as of
the date hereof.
(c) As of the date hereof, neither Allied Waste, BFI nor any
of their Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any landfill or any sale or
disposition thereof in lieu of condemnation. As of the date hereof, except as
set forth in Schedule 3.07, neither any landfill nor any interest therein is
subject to any right of first refusal, option or other contractual right to
purchase such landfill or interest therein.
(d) Each member of the Allied Group has complied with all
obligations under all leases which are material to the Allied Group, taken as a
whole, to which it is a party and all such leases are in full force and effect,
except where failure to do so or failure of such leases to be in full force and
effect could not individually or in the aggregate, after giving effect to the
Transactions, reasonably be expected to have a Material Adverse Effect. Each
member of the Allied Group enjoys peaceful and undisturbed possession under all
such material leases, except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.08. Subsidiaries; Other Equity Investments. (a) Part
A of Schedule 3.08 sets forth as of the date hereof a list of all Subsidiaries,
after giving effect to the Transactions. Each such Subsidiary is (or upon
consummation of the Transactions will be) a wholly owned Subsidiary except as
otherwise indicated on Schedule 3.08. The shares of capital stock or other
ownership interests issued by the Borrower and the other Subsidiaries and owned
by members of the Allied Group are fully paid and non-assessable and are owned
by Allied Waste, directly or indirectly, free and clear of all Liens (other than
Liens permitted by the Loan Documents).
(b) Part B of Schedule 3.08 sets forth as of the date hereof a
list of all equity Investments (other than equity Investments in Subsidiaries
referred to in Part A of said Schedule 3.08) held by Allied Waste, BFI or any of
their subsidiaries in any Person, and, for each such Investment (i) the identity
of the Person or Persons holding such Investment and (ii) the nature of such
Investment.
(c) Part C of Schedule 3.08 sets forth as of the date hereof a
list of each Subsidiary that is inactive and that has total assets of less than
$100,000 (each, an "Inactive Subsidiary")
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as
set forth on Schedule 3.09, there are no actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or, to the
knowledge of Allied Waste or the Borrower, threatened against or affecting any
member of the Allied Group or any business, property or rights of any such
member (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable likelihood of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, after giving effect to the Transactions, to have a Material Adverse
Effect.
(b) No member of the Allied Group or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted violate
any law, rule or regulation (including any Environmental Law, or, to the
knowledge of Allied Waste or the Borrower any zoning, building ordinance, code
or approval or any building permits), or is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental Authority, where
such violation or default could individually or in the aggregate, after giving
effect to the Transactions, reasonably be expected to have a Material Adverse
Effect.
SECTION 3.10. Agreements. No member of the Allied Group is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other Material Agreement to which it
is a party or by which it or any of its properties or assets are or may be
bound, where such default could individually or in the aggregate, after giving
effect to the Transactions, reasonably be expected to have a Material Adverse
Effect.
SECTION 3.11. Federal Reserve Regulations. (a) No member of
the Allied Group is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used by any member of the Allied Group, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose
that entails a violation of, or that is inconsistent with, the provisions of
Regulations U or X of the Board.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. No member of the Allied Group is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Tax Returns. Each of Allied Waste and its
Subsidiaries has timely filed or caused to be filed all Tax returns, extensions
or materials required to have been filed by it (other than those not yet
delinquent) and has paid or caused to be paid all Taxes due and payable by it
and all assessments received by it, except (a) any Taxes and assessments that
are being contested in good faith by appropriate proceedings and for which such
member shall have set aside on its books adequate reserves in accordance with
GAAP or (b) to the extent that the failure to do so could not, individually or
in the aggregate, after giving effect to the Transactions, reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.14. No Material Misstatements. To the knowledge of
the Loan Parties, on or prior to the Effective Date, none of (a) the
Confidential Information Memorandum or (b) any other information, report,
financial statement, exhibit or schedule furnished by or on behalf of Allied
Waste and its Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, as of the date of such statements and in the light of the
circumstances under which they were made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast, projection or expressions of opinion,
each of Allied Waste and its Subsidiaries represents only that (i) it acted in
good faith and utilized assumptions believed to be reasonable at the time and
due care in the preparation of such information, report, financial statement,
exhibit or schedule and (ii) nothing has come to its attention which would cause
them not to so believe.
SECTION 3.15. Employee Benefit Plans. Except as set forth on
Schedule 3.15, each of the Borrower and its ERISA Affiliates is in compliance in
all material respects with the applicable provisions of ERISA and the Code and
the regulations and published interpretations thereunder, except for such
non-compliance as could not, individually or in the aggregate, after giving
effect to the Transactions, reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 3.15, no ERISA Event has occurred and is
outstanding or is reasonably expected to occur that, when taken together with
all other such outstanding ERISA Events, could, individually or in the
aggregate, after giving effect to the Transactions, reasonably be expected to
result in material liability of the Borrower or any of its ERISA Affiliates,
except where such liability could not reasonably be expected to have to a
Material Adverse Effect. The present value of all benefit liabilities under each
Plan (based on those assumptions used to fund such Plan) did not, as of the last
annual valuation date applicable thereto, exceed by more than $25,000,000 the
fair market value of the assets of such Plan, and the aggregate present value of
all benefit liabilities of all underfunded Plans (based on those assumptions
used to fund each such Plan) did not, as of the last annual valuation dates
applicable thereto, exceed by more than $25,000,000 the aggregate fair market
value of the assets of all such underfunded Plans.
SECTION 3.16. Environmental Matters. Except as set forth in
Schedule 3.16:
(a) the facilities and properties owned, leased or operated by
each member of the Allied Group (the "Properties") do not contain and
to the Borrower's best knowledge (actual or constructive) have not
previously contained, any Hazardous Materials in amounts or
concentrations which (i) constitute, or constituted a violation of,
(ii) require remedial action under, or (iii) could give rise to
liability under, Environmental Laws, which violations, remedial actions
and liabilities, individually or in the aggregate, after giving effect
to the Transactions, could reasonably be expected to have a Material
Adverse Effect;
(b) the Properties and all operations of each member of the
Allied Group are in compliance, and in the last five years have been in
compliance, with all Environmental Laws, and all necessary
Environmental Permits have been obtained and are in effect, except to
the extent that such non-compliance or failure to obtain any such
Environmental Permits, individually or in the aggregate, after giving
effect to the Transactions, could not reasonably be expected to have a
Material Adverse Effect;
(c) there have been no Releases or threatened Releases at,
from, under or proximate to the Properties or properties formerly
owned, leased or operated by any member of the Allied Group (the
"Former Properties") or otherwise in connection with the operations of
any member of the Allied Group, which Releases or threatened Releases,
individually or in the aggregate, after giving effect to the
Transactions, could reasonably be expected to have a Material Adverse
Effect;
(d) no member of the Allied Group has received any notice of
an Environmental Claim in connection with the Properties or Former
Properties or the operations of any member of the Allied Group or with
regard to any Person whose liabilities arising under Environmental Law
any member of the Allied Group has retained or assumed, in whole or in
part, contractually, by operation of law or otherwise, which,
individually or in the aggregate, after giving effect to the
Transactions, could reasonably be expected to have a Material Adverse
Effect; and
(e) Hazardous Materials have not been transported from the
Properties or Former Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the
Properties or Former Properties in violation of any Environmental Law,
nor has any member of the Allied Group retained or assumed any
liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or
disposal, or retained or assumed liabilities, individually or in the
aggregate, after giving effect to the Transactions, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.17. Insurance. Schedule 3.17 sets forth a true,
complete and correct description of all material insurance maintained by Allied
Waste, the Borrower and BFI (including insurance maintained by Allied Waste or
the Borrower for the Subsidiaries and by BFI for its subsidiaries) as of the
date hereof. As of the date hereof, such insurance is in full force and effect
and all premiums which have become due and payable have been fully paid. Each
member of the Allied Group maintains insurance in such amounts and covering such
risks and liabilities as are in accordance with normal industry practice.
SECTION 3.18. Labor Matters. Except as disclosed in the
periodic reports of Allied Waste and BFI most recently filed under the
Securities Exchange Act of 1934 prior to the date hereof, as of the date hereof,
there are no strikes, lockouts or slowdowns against any member of the Allied
Group pending or, to the knowledge of Allied Waste or the Borrower, threatened,
which individually or in the aggregate, after giving effect to the Transactions,
could reasonably be expected to have a Material Adverse Effect. The hours worked
by and payments made to employees of the Allied Group do not violate the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, in a manner which individually or in the aggregate,
after giving effect to the Transactions, could reasonably be expected to have a
Material Adverse Effect. All payments due from members of the Allied Group, or
for which any claim may be made against any member of the Allied Group, on
account of wages and employee health and welfare insurance and other benefits,
have been paid or accrued as a liability on the books of such member, except
where the failure to do so individually or in the aggregate, after giving effect
to the Transactions, could not reasonably be expected to have a Material Adverse
Effect. The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any member of the Allied Group is
bound, except where such events individually or in the aggregate, after giving
effect to the Transactions, could not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.19. Solvency. Immediately after the consummation of
the Transactions to occur on the Effective Date and immediately following the
making of each Loan and after giving effect to the application of the proceeds
thereof, and taking into account all rights of indemnity, subrogation and
contribution of the Loan Parties under applicable law and the Indemnity,
Contribution and Subrogation Agreement, each Material Loan Party is and will be
Solvent.
SECTION 3.20. Intellectual Property. Each member of the Allied
Group owns, or has valid rights to use, all Intellectual Property necessary for
the conduct of its business as currently conducted except for any failure to so
own or license Intellectual Property which, individually or in the aggregate,
after giving effect to the Transactions, could not reasonably be expected to
have a Material Adverse Effect. To the knowledge of Allied Waste and the
Borrower, no claim has been asserted and is pending against any member of the
Allied Group challenging or questioning the use of any Intellectual Property by
them or the validity or effectiveness of any Intellectual Property used by them,
except for any claims, which, individually or in the aggregate, after giving
effect to the Transactions, could not reasonably be expected to have a Material
Adverse Effect. To the knowledge of Allied Waste and the Borrower, the use of
Intellectual Property by the members of the Allied Group does not infringe on
the rights of any Person in any material respect and in any manner which could
individually or in the aggregate, after giving effect to the Transactions,
reasonably be expected to have a Material Adverse Effect.
SECTION 3.21. Year 2000. Any reprogramming required to permit
the proper functioning in all material respects, in and following the year 2000,
of (i) the computer systems of Allied Waste and its Subsidiaries and (ii)
equipment containing embedded microchips (including systems and equipment
supplied by others or with which the systems of Allied Waste, the Borrower and
its Subsidiaries interface) and the testing of all such systems and equipment,
as so reprogrammed, will be completed in all material respects by December 31,
1999. The aggregate cost to Allied Waste and its Subsidiaries of such
reprogramming and testing, and of the reasonably foreseeable consequences of
year 2000 to Allied Waste and its Subsidiaries resulting from reprogramming
errors and the failure of others' systems or equipment, cannot reasonably be
expected to have a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of Allied Waste and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit Allied Waste and its Subsidiaries to
conduct its business without the occurrence of a Material Adverse Effect.
SECTION 3.22. Senior Indebtedness. The Senior Obligations
constitute "Senior Indebtedness" or "Guarantor Senior Indebtedness" under and as
defined in the Loan Documents and the Subordinated Debt Documents.
SECTION 3.23. Security Interests. (a) When executed and
delivered, each of the Non-Shared Collateral Pledge Agreement and the Shared
Collateral Pledge Agreement will be effective to create in favor of the
Collateral Agent and the Collateral Trustee, respectively, for the ratable
benefit of the Secured Parties and the Shared Collateral Secured Parties,
respectively, a valid and enforceable security interest in the "Collateral" (as
defined in the Non-Shared Collateral Pledge Agreement) and the "Collateral" (as
defined in the Shared Collateral Pledge Agreement) and, when the portion of the
Collateral constituting certificated securities (as defined in the Uniform
Commercial Code) is delivered to the Collateral Agent or Collateral Trustee
thereunder, each of the Non-Shared Collateral Pledge Agreement and the Shared
Collateral Pledge Agreement shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to any
other Person.
(b) When executed and delivered, each of the Non-Shared
Collateral Security Agreement and the Shared Collateral Security Agreement is
effective to create in favor of the Collateral Agent and the Collateral Trustee,
respectively, for the ratable benefit of the Secured Parties and the Shared
Collateral Secured Parties, respectively, a legal, valid and enforceable
security interest in the "Collateral" (as defined in the Non-Shared Collateral
Security Agreement) and the "Collateral" (as defined in the Shared Collateral
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to each of the Perfection Certificates,
the Non-Shared Collateral Security Agreement and the Shared Collateral Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral, to
the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, other than the Intellectual Property, in which a security
interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02A.
(c) When each of the Non-Shared Collateral Security Agreement
and the Shared Collateral Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the security
interest created thereunder shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property in which a security interest may be perfected by filing,
recording or registering a security agreement, financing statement or analogous
document in the United States Patent and Trademark Office or the United States
Copyright Office, as applicable, in each case prior and superior in right to any
other Person, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02(A) (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the date hereof).
SECTION 3.24. Tranche D Representations and Warranties.
Notwithstanding any provision to the contrary contained in any Loan Document,
(i) the representations and warranties set forth in Section 3.22 and 3.23 are
not made, and will not be deemed made, to or for the benefit of the Tranche D
Lenders and (ii) the representations and warranties set forth in Section 3.03
are made to the Tranche D Lenders only insofar as they relate to the Tranche D
Loan Documents. Those representations and warranties made to the Tranche D
Lenders herein or in any Tranche D Loan Document are referred to herein as the
"Tranche D Representations and Warranties". The provisions of this Section 3.24
do not constitute representations or warranties of Allied Waste or the Borrower.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of an Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The following documents, each dated the Effective Date
(unless otherwise specified) are received by the Administrative Agent in form
and substance satisfactory to the Initial Lenders:
(i) for Allied Waste, the Borrower and each other Material
Loan Party, a copy of the organizational documents, as amended and in
effect, of such Material Loan Party certified (as of a date reasonably
close to the Effective Date) by the Secretary of State of the
jurisdiction of organization of such Material Loan Party; a certificate
from such Secretary of State dated as of a date reasonably close to the
Effective Date as to the good standing of and organizational documents
filed by such Material Loan Party; and evidence from each Material Loan
Party that it is qualified to do business in each jurisdiction where
such qualification is required and where the failure so to qualify
could, individually or in the aggregate, after giving effect to the
Transactions, reasonably be expected to have a Material Adverse Effect;
(ii) for each of Allied Waste, the Borrower and each other
Material Loan Party, a certificate of the Secretary or an Assistant
Secretary of such Material Loan Party, dated the Effective Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws (or operating or partnership agreement, where applicable) of
such Material Loan Party as amended and in effect at all times from the
date on which the resolutions referred to in clause (B) were adopted to
and including the date of such certificate, (B) that attached thereto
is a true and complete copy of resolutions (or consent by members or
partners, where applicable, to the extent required) duly adopted by the
board of directors (or members or partners, where applicable) of such
Material Loan Party authorizing the execution, delivery and performance
of such of the Loan Documents to which such Material Loan Party is or
is intended to be a party and the extensions of credit hereunder, and
that such resolutions (or consent by members or partners, where
applicable, to the extent required) have not been modified, rescinded
or amended and are in full force and effect, (C) that the
organizational documents of such Material Loan Party have not been
amended since the date of the certification thereto furnished pursuant
to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer (or member or partner, where applicable) of
such Material Loan Party executing such of the Loan Documents to which
such Material Loan Party is intended to be a party and each other
document to be delivered by such Material Loan Party from time to time
in connection therewith (and the Administrative Agent and each Lender
may conclusively rely on such certificate until it receives notice in
writing from such Material Loan Party);
(iii) for each Material Loan Party, a certificate of another
officer (or member or partner, where applicable) of such Material Loan
Party, dated the Effective Date, as to the incumbency and specimen
signature of the Secretary or Assistant Secretary, as the case may be,
of such Material Loan Party;
(b) The Administrative Agent shall have received the Security
Documents duly executed by each of the intended parties thereto, together with:
(i) such appropriately completed and duly executed copies of
Uniform Commercial Code financing statements as the Administrative
Agent or any Senior Lender shall have requested in order to perfect the
Liens created by the Security Documents and covering the Collateral
described therein;
(ii) executed documents for recordation and filing of or with
respect to such Security Documents that the Administrative Agent or any
Senior Lender may deem necessary or desirable in order to perfect the
Liens created thereby;
(iii) the stock certificates required to be delivered pursuant
to such Security Documents, each accompanied by undated stock powers
executed in blank;
(iv) a completed Perfection Certificate dated the Effective
Date and signed by an executive officer or Financial Officer, together
with all attachments contemplated thereby.
(c) The Administrative Agent shall have received a legal
opinion of (i) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for the
Loan Parties, in substantially the form of Exhibit O-1 and otherwise
satisfactory to the Initial Lenders and (ii) Xxxxx Xxxx, General Counsel of
Allied Waste, in substantially the form of Exhibit O-2 and otherwise
satisfactory to the Initial Lenders;
(d) The Initial Lenders shall have received a certificate of a
Financial Officer to the effect that:
(x) the representations and warranties (other than
the representation and warranty contained in Section 3.06) are
true and correct in all material respects on and as of the
Effective Date or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as
of such specific date (except, in the case of representations
and warranties relating to the business, operations or
condition of Allied Waste and its Subsidiaries, to the extent
any such failures to be true and correct, individually or in
the aggregate, could not, individually or in the aggregate,
after giving effect to the Transactions, reasonably be
expected to result in a Material Adverse Effect); and
(y) no event has occurred and is continuing that
constitutes a Default or an Event of Default.
(e) The Administrative Agent shall have received evidence of
the existence of all insurance required to be maintained by Allied Waste and its
Restricted Subsidiaries hereunder, together with evidence that the Collateral
Agent on behalf of the Secured Parties or Shared Collateral Secured Parties is
an additional insured or loss payee (to the extent required under Section 5.02).
(f) The Administrative Agent shall have received the results
of a recent lien search in each of the jurisdictions requested by the
Administrative Agent, and such searches shall reveal no Liens on any of the
assets of any Loan Party except for Liens permitted by Section 6.02A or Liens to
be discharged on or prior to the Effective Date pursuant to documentation
reasonably satisfactory in form and substance to the Initial Lenders.
(g) The Administrative Agent shall have received evidence that
the Borrower shall have paid all fees required to be paid, and all reasonable
expenses for which invoices have been presented, on or before the Effective Date
(including, without limitation, the reasonable fees and expenses of Cravath,
Swaine & Xxxxx, counsel to the Administrative Agent and the Initial Lenders).
(h) The Administrative Agent shall have received evidence that
(i) the Borrower and BFI shall have repaid (or are simultaneously repaying) all
amounts owing under the Existing Credit Agreement and the BFI Credit Agreement,
that all letters of credit (other than Existing Letters of Credit) issued under
the Existing Credit Agreement or the BFI Credit Agreement shall have expired or
been terminated, that all commitments to lend thereunder shall have been (or
shall simultaneously be) terminated and that all Liens securing obligations
under such credit agreements have been released (or will be released promptly
after the Effective Date pursuant to a payoff letter delivered to the
Administrative Agent by the administrative agents under such credit agreements)
in a manner reasonably satisfactory to the Administrative Agent and (ii) all
commercial paper of BFI or any Subsidiary of BFI has been (or will on the
Effective Date be) repaid in full.
(i) Since September 30, 1998, there shall not have occurred
any material adverse change in the business, financial condition or results of
operations of BFI and its subsidiaries, taken as a whole.
(j) The Sponsor Preferred Stock Purchase shall have been
consummated in accordance with the purchase agreement and other documentation
relating to the Sponsor Preferred Stock referred to in this paragraph (j) and in
connection therewith Allied Waste shall have received cash proceeds of not less
than $1,000,000,000. The terms and conditions of the Sponsor Preferred Stock
shall, in all material respects, be as contemplated by the letter agreement
dated March 7, 1999, between Allied Waste and the Sponsors, and the terms and
conditions of the Sponsor Preferred Stock and any purchase agreement or other
documentation relating thereto shall be reasonably satisfactory to the Initial
Lenders. The Administrative Agent shall have received copies of the certificate
of designation for the Sponsor Preferred Stock and of any such purchase
agreement or other documentation.
(k) The Borrower shall have received in the aggregate
$2,500,000,000 of (i) proceeds from the issuance of Senior Subordinated Notes in
a public offering or in a Rule 144A or other private placement, (ii) proceeds of
Tranche D Term Borrowings, (iii) Net Available Proceeds from Asset Sales
received on or prior to the Effective Date and applied, in accordance with and
subject to the provisions of Section 2.10(i), to the reduction of Tranche D Term
Commitments and (iv) Net Available Proceeds received from the issuance of other
Permitted Subordinated Debt or Equity Interests of Allied Waste on or prior to
the Effective Date and applied, in accordance with and subject to the provisions
of Section 2.10(f), to the reduction of the Tranche D Commitments. The terms and
conditions of the Senior Subordinated Notes and the provisions of the
Subordinated Debt Documents shall be reasonably satisfactory to the Lenders. The
Administrative Agent shall have received copies of the Subordinated Debt
Documents, if any, certified by a Financial Officer as complete and correct.
(l) The Merger shall have been or shall simultaneously be
consummated in accordance with applicable law and the Merger Documents. The
Initial Lenders shall be satisfied that the conditions to the Merger set forth
in the Merger Documents shall have been satisfied without giving effect to
waivers or amendments that are material to the Lenders. All requisite material
governmental authorities shall have approved or consented to the Transactions
(except to the extent the failure to obtain any such approvals or consents could
not, individually or in the aggregate reasonably be expected to result in a
Material Adverse Effect), all applicable appeal periods shall have expired and
there shall be no governmental or judicial action, actual or threatened, that
has or could have a reasonable likelihood of restraining, preventing or imposing
burdensome conditions (except as previously disclosed to the Initial Lenders)
that could, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. The Administrative Agent shall have received
copies of the Merger Documents and all certificates, opinions and other
documents delivered thereunder, certified by a Financial Officer as complete and
correct. The Administrative Agent shall have received evidence (i) of receipt of
all material governmental and third party consents and approvals required in
connection with the Transactions, except such consents and approvals that, if
not obtained, could not, individually or in the aggregate, after giving effect
to the Transactions, reasonably be expected to result in a Material Adverse
Effect, and (ii) that the same remain in effect.
(m) The Lenders shall have received the pro forma consolidated
balance sheet of Allied Waste referred to in Section 3.05(b), and such pro forma
consolidated balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders. The
Administrative Agent shall have received a certificate of a Financial Officer to
the effect that such pro forma consolidated balance sheet fairly presents, in
all material respects, the pro forma financial position of Allied Waste and its
Subsidiaries in accordance with GAAP. After giving effect to the Transactions,
neither Allied Waste nor any of its Restricted Subsidiaries shall have
outstanding any shares of preferred stock or any Indebtedness for borrowed
money, other than (i) Indebtedness incurred under the Loan Documents, (ii) the
Senior Subordinated Notes in an aggregate amount not in excess of
$2,500,000,000, (iii) Preferred Stock of Allied Waste and (iv) the Indebtedness
listed on Schedule 6.01A. The aggregate amount of fees and expenses (including
underwriting discounts and commissions) payable or otherwise borne by Allied
Waste and its Subsidiaries in connection with the Transactions shall not exceed
$300,000,000.
(n) The Administrative Agent shall have received a solvency
letter, in form and substance satisfactory to the Required Lenders, from
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, Inc., together with such other
evidence reasonably requested by the Initial Lenders with respect to the
Solvency of Allied Waste and its Restricted Subsidiaries on a Consolidated basis
after giving effect to the Transactions.
(o) There shall be no material litigation against any member
of the Allied Group or defaults under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other Material Agreement
to which any member of the Allied Group is a party or by which it or any of its
properties or assets are or may be bound which could reasonably be expected,
either individually or in the aggregate, to result in a Material Adverse Effect.
(p) As of the Effective Date and after giving effect to
consummation of the Transactions and other transactions contemplated hereby to
occur on or before the Effective Date, including without limitation the
Borrowings under this Agreement and the issuance of the Senior Subordinated
Notes, if any, AWNA will be able to borrow at least $1.00 of additional
long-term debt pursuant to and in compliance with Subsection 13(d) of Section
1.01 of the First Supplemental Indenture, dated as of December 23, 1998, to the
AWNA Senior Note Indenture.
(q) The Allied Guarantee shall have been duly executed and
delivered and shall be in full force and effect.
The Administrative Agent shall notify Allied Waste, the Borrower and the Lenders
of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of an Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 31, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Senior
Lender to make a Loan on the occasion of any Borrowing after the Effective Date,
and of an Issuing Bank to issue, amend, renew or extend any Letter of Credit
after the Effective Date, is subject to receipt of the request therefor in
accordance herewith and to the satisfaction of the following conditions (each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Allied
Waste and the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Borrowing or issuance, before and after giving effect to such
Borrowing or issuance and to the application of the proceeds therefrom,
as though made on and as of such date (or, if any such representation
or warranty is expressly stated to have been made as of a specific
date, as of such specific date);
(b) no event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Senior Default or a Senior Event of
Default; and
(c) such Borrowing or issuance is permitted under the terms of
the AWNA Senior Note Indenture and under the terms of the BFI
Indenture.
SECTION 4.03. Determinations Under Section 4.01. For purposes
of determining compliance with the conditions specified in Section 4.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received written notice from such Lender prior to the
Effective Date specifying its objection thereto and such Lender shall not have
made available to the Administrative Agent such Lender's ratable portion of the
Borrowings made on the Effective Date.
SECTION 4.04. Modification of Schedules. As of the date
hereof, Schedule 6.02 is incomplete or may require modification prior to the
Effective Date. The Borrower may supplement or modify such schedule if revisions
are delivered to each Lender not later than two Business Days prior to the
Effective Date. Notwithstanding anything else in this Agreement, in the event
that such schedule is so supplemented or modified after the date hereof but
prior to the Effective Date, such amendments or modifications shall be effective
if approved by the Required Lenders prior to the Effective Date, and the
conditions contained in Section 4.01 shall not be deemed to be satisfied until
such approval is received; provided that the Administrative Agent may approve
insignificant changes to such schedule, and the conditions in Section 4.01 shall
be deemed satisfied if the Administrative Agent so approves and such other
conditions contained therein are satisfied, without such consent from the
Required Lenders.
ARTICLE V-A
Affirmative Covenants
Until the Senior Commitments have expired or been terminated
and the principal of and interest on each Senior Loan and all fees payable to
Senior Lenders and Issuing Banks hereunder shall have been paid in full and all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Allied Waste and the Borrower covenants and
agrees with the Senior Lenders that:
SECTION 5.01A. Existence; Businesses and Properties. It will,
and will cause each of its Restricted Subsidiaries to:
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.06A and except for
failures by Restricted Subsidiaries to do so which could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain,
preserve, or renew, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the conduct
of its business; maintain and operate such business in substantially
the manner in which it is presently conducted and operated; comply with
all applicable laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted,
except for failures to comply which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made,
all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times, except for
failures to maintain and preserve property that could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 5.02A. Insurance. It will, and will cause each of its
Restricted Subsidiaries to:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers, or by way of
adequate self-insurance; maintain such other insurance or
self-insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same
or similar locations, including public liability insurance or
self-insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance or self-insurance as may be required by law. All insurance
policies may provide for reasonable deductible amounts.
(b) Cause all such policies to be endorsed or amended to
include a "standard" or "New York" lender's loss payable endorsement,
in form and substance reasonably satisfactory to the Administrative
Agent, which endorsement shall provide that, from and after the
Effective Date, if the insurance carrier shall have received written
notice from the Administrative Agent of the occurrence of a Senior
Event of Default, the insurance carrier shall pay all proceeds
otherwise payable to any member of the Allied Group under such policies
directly to the Administrative Agent; and deliver original or certified
copies of all such policies to the Administrative Agent.
(c) If any separate or additional property, casualty or
"umbrella" insurance policy is known by a Responsible Officer to have
been obtained by any member of the Allied Group, notify the
Administrative Agent thereof promptly, and promptly deliver to the
Administrative Agent a duplicate original copy of such policy.
SECTION 5.03A. Obligations and Taxes. It will, and will cause
each of its Subsidiaries to, pay its Indebtedness and other obligations promptly
and in accordance with their terms and pay and discharge promptly when due all
Taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided that (x) such payment of
Indebtedness or claims for labor, material or supplies shall not be required
pursuant to this Section 5.03A to the extent failure to so pay could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and would not result in any Senior Event of Default hereunder;
and (y) such payment and discharge shall not be required with respect to any
such Tax, assessment, charge, levy or claim so long as either (i) the validity
or amount thereof shall be contested in good faith by appropriate proceedings
and Allied Waste or the relevant Subsidiary shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such contest
operates to suspend collection of the contested obligation, Tax, assessment or
charge and enforcement of a Lien or (ii) such amount not so paid or discharged
is less than $50,000,000 in the aggregate.
SECTION 5.04A. Financial Statements, Reports, Etc. Allied
Waste shall furnish to the Administrative Agent (and the Administrative Agent
shall furnish to each Lender):
(a) within seven days after the filing with the Securities
and Exchange Commission of Allied Waste's Annual Report on Form 10-K
with respect to each fiscal year (and in any event within 105 days
after the end of such fiscal year), (x) its Consolidated balance sheet
and related statements of operations, stockholders' equity and cash
flows showing the financial condition of Allied Waste and its
Restricted Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Restricted
Subsidiaries during such year, all audited by Xxxxxx Xxxxxxxx LLP or
other independent public accountants of recognized national standing
acceptable to the Administrative Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such Consolidated financial statements fairly
present the financial condition and results of operations of Allied
Waste and its Restricted Subsidiaries on a Consolidated basis in
accordance with GAAP (it being understood that such financial
statements and opinion may be delivered, if included therein, in the
form of such Annual Report on Form 10-K and any related Annual Report
to Stockholders); and (y) a calculation of the Leverage Ratio and
Interest Coverage Ratio as at the last day of and for such fiscal year;
(b) within seven days after the filing with the Securities and
Exchange Commission of Allied Waste's Quarterly Report on Form 10-Q
with respect to each of the first three fiscal quarters of each fiscal
year (and in any event within 60 days after the end of each such fiscal
quarter), (x) its Consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of Allied Waste and its Restricted Subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Restricted Subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, all certified by one
of its Financial Officers as fairly presenting the financial condition
and results of operations of Allied Waste and its Restricted
Subsidiaries on a Consolidated basis in accordance with GAAP, subject
to normal year-end audit adjustments and lack of footnote disclosures
(it being understood that such financial statements may be delivered,
if included therein, in the form of such Quarterly Report on Form
10-Q); and (y) a calculation of the Leverage Ratio and the Interest
Coverage Ratio as at the last day of such fiscal quarter and for the
Rolling Period then ended;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of the accounting firm
or Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that in making its examination in
connection with rendering such opinion or certificate with respect to
such statements, such Person has not obtained knowledge that an Event
of Default or, if such certificate is of a Financial Officer, a Default
has occurred or, if such Financial Officer has obtained knowledge that
an Event of Default or, if such certificate is of a Financial Officer,
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto
and (ii) setting forth computations in reasonable detail satisfactory
to the Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.04A, 6.05A, 6.06A, 6.08A, 6.13A, 6.14A and
6.15A;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any member of the Allied Group with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) at the time required for delivery of financial statements
pursuant to paragraph (a) or (b) of this Section, (x) a report in form
and substance reasonably satisfactory to the Administrative Agent of
all Permitted Acquisitions consummated during the most recent fiscal
quarter covered by such financial statements, which report shall
identify, inter alia, each Permitted Acquisition having total
Acquisition Consideration of $25,000,000 or more (a "Large
Acquisition") and, for each Large Acquisition, a description of the
total Acquisition Consideration therefor; and (y) a list of all
entities that became or ceased to be Domestic Subsidiaries of Allied
Waste during such fiscal quarter;
(f) promptly from time to time, such other information
regarding the operations, business affairs and financial condition of
members of the Allied Group, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Senior Lender acting
through the Administrative Agent may reasonably request; and
(g) within 90 days after the beginning of each fiscal year, a
copy of the annual forecasts of Allied Waste, prepared by management of
Allied Waste, in each case in form and detail reasonably satisfactory
to the Administrative Agent, consisting of Consolidated balance sheets
and related statements of operations and cash flows of Allied Waste and
its Restricted Subsidiaries for such fiscal year and for each of the
following fiscal years occurring in whole or in part during the term of
this Agreement.
SECTION 5.05A. Litigation and Other Notices. It will, and will
cause each of its Restricted Subsidiaries to, furnish to the Administrative
Agent, each Issuing Bank and each Senior Lender:
(a) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Senior Default or Senior Event of Default has occurred,
specifying the nature and extent thereof and the corrective action (if
any) taken or proposed to be taken with respect thereto;
(b) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice of the filing or commencement of, or of any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against any member of the Allied Group that
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect;
(c) prompt written notice of any development known to any
Responsible Officer that has had, or could, individually or in the
aggregate, reasonably be expected to have, a Material Adverse Effect;
and
(d) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Change in Control has occurred or is reasonably likely to
occur.
SECTION 5.06A. Employee Benefits. It will, and will cause each
of its Subsidiaries to:
(a) comply with the applicable provisions of ERISA and the
Code (excluding, however, noncompliance that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect); and
(b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible
Officer has knowledge that, any ERISA Event has occurred and is then
outstanding that, alone or together with any other ERISA Event could
reasonably be expected to result in liability of any member of the
Allied Group in an aggregate amount exceeding $5,000,000 or (ii)
requiring payments by any member of the Allied Group exceeding
$2,500,000 in any year, a statement of a Financial Officer of the
Borrower, setting forth details as to such ERISA Event and the action,
if any, that Allied Waste proposes to take with respect thereto.
SECTION 5.07A. Maintaining Records; Access to Properties and
Inspections. It will, and will cause each of its Subsidiaries to, keep proper
books of record and account sufficient to permit the preparation of financial
statements in conformity with GAAP. Each of Allied Waste and the Borrower will,
and will cause each of its Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Senior Lender to
visit and inspect (at the expense of the Senior Lenders unless an Event of
Default has occurred and is continuing, in which case at the expense of the
Borrower) the records, books, accounts and the properties of members of the
Allied Group at reasonable times, with reasonable notice and without causing
material disruption, and as often as reasonably requested and to make extracts
from and copies of such records, books and accounts and permit any
representatives designated by the Administrative Agent or any Senior Lender to
discuss the affairs, finances and condition of members of the Allied Group with
the officers thereof and independent accountants therefor (subject to reasonable
requests of confidentiality, including requirements imposed by law or contract).
SECTION 5.08A. Environmental Laws. It will, and will cause of
each of its Subsidiaries to:
(a) comply, and use commercially reasonable efforts to cause
all lessees and other Persons occupying its Properties to comply, in
all respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all
Environmental Permits necessary for its operations and Properties;
maintain appropriate financial assurance mechanisms in connection with
its landfill operations as required under Environmental Law; and
conduct any remedial action in accordance with Environmental Laws,
except where such noncompliance or failure to obtain or renew
Environmental Permits, maintain financial assurance mechanisms or to
conduct any remedial action could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
provided that no member of the Allied Group shall be required to
conduct remedial actions to the extent that any applicable obligation
to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances; and
(b) with respect to any Permitted Acquisition having
Acquisition Consideration in excess of $50,000,000, and any acquisition
of any other ownership or leasehold interest in, or the entry into any
agreement to conduct operations of, any landfill, transfer station or
other waste treatment or disposal facility the total value of which is
in excess of $50,000,000, prior to consummating any such acquisition or
commencement of any operations under any such agreement or lease,
obtain and review a written assessment, prepared by an environmental
consulting firm recognized within the municipal solid waste industry
and among environmental professionals as competent and reputable and
which the Borrower has reasonably determined to be suitable, that
reasonably addresses compliance with Environmental Law and material
Environmental Liabilities associated with the subject of such
acquisition, agreement or lease.
SECTION 5.09A. Preparation of Environmental Reports. If a
Senior Default or Senior Event of Default caused by reason of a breach of
Section 3.16 or 5.08A shall have occurred and be continuing, the Administrative
Agent is authorized to engage an environmental consulting firm selected by the
Administrative Agent reasonably acceptable to Allied Waste to prepare, on behalf
of the Administrative Agent, the Lenders and the Issuing Banks but at the sole
cost and expense of the Borrower, an environmental site assessment report for
the Properties which are the subject of such default, which environmental site
assessment report shall estimate the cost of any compliance or remedial action
(if such costs are reasonably ascertainable) and evaluate potentially material
Environmental Claims and potentially material Environmental Liabilities in
connection with such Properties. Each of Allied Waste and the Borrower will, and
will cause each of its Subsidiaries to, cooperate fully with the Administrative
Agent and such environmental consulting firms in their preparation of such
environmental assessment reports, including (without limitation), permitting any
representatives designated by the Administrative Agent or such environmental
consulting firms to visit and inspect the related Properties at reasonable times
and as often as reasonably requested and to make extracts from and copies of
environmental records of the members of the Allied Group. If requested by the
Borrower, the Borrower shall be entitled to have access to the data relating to
such environmental assessment reports.
SECTION 5.10A. Further Assurances. It will, and will cause
each of its Restricted Subsidiaries (other than Inactive Subsidiaries) to:
(a) Execute any and all further documents, financing
statements, agreements and instruments, and take all further action
(including, without limitation, filing Uniform Commercial Code and
other financing statements) that the Required Lenders or the
Administrative Agent may reasonably request in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant,
preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security
Documents (subject to Liens permitted under the Loan Documents).
(b) Take such action from time to time as shall be necessary
to ensure that all Specified Subsidiaries (including Specified
Subsidiaries formed or acquired pursuant to Permitted Acquisitions) are
parties to the Subsidiary Guarantee Agreement hereunder, that all of
the capital stock or other ownership interests of Specified
Subsidiaries owned by the Borrower or the Specified Subsidiaries is
pledged to the Collateral Agent or the Collateral Trustee pursuant to
the applicable Security Document and that substantially all of the
personal property of the Borrower and the Specified Subsidiaries
(including assets acquired pursuant to Permitted Acquisitions) is
pledged to the Collateral Agent or the Collateral Trustee pursuant to
the applicable Security Document; provided, however, that the foregoing
shall not apply to Subsidiaries with unaffiliated minority holders of
Voting Stock which do not provide required consent to such Subsidiary
Guarantee Agreement or such other applicable Security Document;
provided, further, that Allied Waste and the Borrower shall use
commercially reasonable efforts to obtain any such required consents.
Without limiting the generality of the foregoing, in the event that
Allied Waste or any of the Specified Subsidiaries shall form or acquire
any new Subsidiary after the date hereof that shall constitute a
Specified Subsidiary, and in connection with each Permitted
Acquisition, Allied Waste and the Specified Subsidiaries will, promptly
after such formation or Permitted Acquisition:
(i) cause each new Specified Subsidiary to become
party to the Subsidiary Guarantee Agreement, a "Grantor" under
the Non-Shared Collateral Security Agreement or, if a
subsidiary of BFI, the Shared Collateral Security Agreement,
and, if applicable, a "Pledgor" under the Non-Shared
Collateral Pledge Agreement or the Shared Collateral Pledge
Agreement;
(ii) take and cause each new Specified Subsidiary to
take such action (including, without limitation, delivering
such shares of stock or other certificated ownership interests
and executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary to create and
perfect valid and enforceable first priority Liens (subject
only to Liens permitted under the Loan Documents) on
substantially all of the personal property of such new
Specified Subsidiary and on substantially all of the personal
property acquired pursuant to each Permitted Acquisition, as
collateral security for the Senior Obligations hereunder and
under the other Loan Documents;
(iii) deliver all certificates evidencing capital
stock or other ownership interests in such new Specified
Subsidiary owned by members of the Allied Group, each
accompanied by undated stock powers executed in blank; and
(iv) deliver such proof of corporate or other
Borrower action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by
each Loan Party pursuant to Section 4.01 on the Effective Date
or as the Collateral Agent shall have reasonably requested.
(c) At its own cost and expense, promptly secure the Senior
Obligations by pledging or creating, or causing to be pledged or
created, perfected security interests with respect to such of its
assets and properties, as the Collateral Agent or the Required Senior
Lenders shall designate (it being understood that it is the intent of
the parties that the Senior Obligations shall be secured by, among
other things, substantially all the assets of the Loan Parties and
other properties acquired subsequent to the Effective Date). Such
security interests and Liens will be created under Security Documents
in form and substance satisfactory to the Collateral Agent, and shall
be accompanied by all such instruments and documents (including legal
opinions and lien searches) as the Collateral Agent or Collateral
Trustee shall reasonably request.
Notwithstanding the foregoing provisions of this Section 5.10A, no Loan Party
shall be required to pledge or create security interests in (i) landfills unless
the Administrative Agent acting at the direction of the Required Senior Lenders
shall specifically request the same (which requests may be given from time to
time and may relate to all or only specified landfills owned by members of the
Allied Group), (ii) any assets (excluding capital stock of subsidiaries) of such
Loan Party with respect to which the creation of such pledge or such security
interest is prohibited by a contract or other agreement of such Loan Party (x)
existing on the date hereof or (y) hereafter entered into in compliance with the
provisions of Section 6.08A(b), (iii) capital stock of any Foreign Subsidiary in
excess of 65% thereof or (iv) capital stock of any Unrestricted Subsidiary.
SECTION 5.11A. Compliance with Terms of Leaseholds. It will
make, and will cause each of its Restricted Subsidiaries to make, all payments
and otherwise perform all material obligations in respect of all Material Leases
to which a member of the Allied Group is a party, keep such Material Leases in
full force and effect and not allow such Material Leases to lapse or be
terminated or any rights to renew such Material Leases to be forfeited or
canceled, notify the Administrative Agent of any default by any party with
respect to such Material Leases and cooperate with the Administrative Agent in
all respects to cure any such default and cause each of Allied Waste's
Restricted Subsidiaries to do so, except, in any case, where the failure to do
any of the foregoing, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.12A. Performance of Material Agreements. It will,
and will cause each of its Restricted Subsidiaries to perform and observe all of
the terms and provisions of each Material Agreement, maintain each such Material
Agreement in full force and effect, enforce such Material Agreement in
accordance with its terms, except, in any case, where the failure to do any of
the foregoing could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 5.13A. Inactive Subsidiaries. Except as specified on
Schedule 5.13, Allied Waste shall cause each Inactive Subsidiary to be dissolved
within 90 days of the date hereof; provided that if after such period Allied
Waste has not caused any Inactive Subsidiary to be so dissolved, then each such
Inactive Subsidiary shall be deemed to be (as of such 90th day) a newly formed
Specified Subsidiary for purposes of Section 5.10A(b).
SECTION 5.14A. Year 2000. Allied Waste will use its
commercially reasonable efforts to ensure that any computer systems and/or
software used in the operation of Allied Waste's or any of its Subsidiaries'
businesses is modified or replaced to the extent necessary to prevent or avoid
any the occurrence of any Material Adverse Effect as a result of the
commencement of the year 2000.
SECTION 5.15A. Information Regarding Collateral. (a) Allied
Waste and the Borrower will furnish to the Administrative Agent quarterly,
within 15 days after the end of each fiscal quarter, a report setting forth any
change (i) in any corporate name of a Loan Party or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity or corporate structure or (iv) in
any Loan Party's Federal Taxpayer Identification Number.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.04A, Allied Waste and the Borrower shall deliver to the Administrative
Agent a certificate of a Financial Officer of the Allied Waste and the Borrower
(i) setting forth the information required pursuant to Sections 1, 2, 7, 8, 9
and 10 of the Perfection Certificates or confirming that there has been no
change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent report delivered
pursuant to paragraph (a) of this Section.
SECTION 5.16A. Casualty and Condemnation. (a) The Borrower (a)
will furnish to the Administrative Agent and the Lenders prompt written notice
of any casualty or other insured damage to any material portion of any
Collateral or the commencement of any action or proceeding for the taking of any
Collateral or any part thereof or interest therein under power of eminent domain
or by condemnation or similar proceeding and (b) will ensure that the Net
Available Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Loan Documents.
SECTION 5.17A. Compliance with Laws. It will, and will cause
each of its Restricted Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.18A. Use of Proceeds and Letters of Credit. The
proceeds of the Term Loans, together with the proceeds of the Sponsor Preferred
Stock and the Senior Subordinated Notes will be used only for the payment of (a)
the Merger Consideration, (b) fees and expenses payable in connection with the
Transactions, (c) the repayment of the Indebtedness and other obligations under
the Existing Credit Agreement and the BFI Credit Facility, (d) the repayment of
commercial paper of BFI and (e) the payment of severance and termination
obligations of BFI in connection with the Merger. The proceeds from the Senior
Subordinated Notes shall also be used to repay the Tranche D Loans. The proceeds
of the Revolving Loans and Swingline Loans will be used only for Permitted
Acquisitions, Investments permitted by Section 6.05A, Capital Expenditures
payments, if any, arising out of the exercise by BFI stockholders of their
appraisal rights in connection with the Merger and general corporate purposes,
including working capital. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
Regulations U or X of the Board.
SECTION 5.19A. Interest Rate Protection. As promptly as
practicable, and in any event within 90 days after the Effective Date, the
Borrower will enter into, and thereafter for a period of not less than 3 years
will maintain in effect, one or more interest rate protection agreements on such
terms and with such parties as shall be reasonably satisfactory to the Initial
Lenders, the effect of which shall be to fix or limit the interest cost to the
Borrower with respect to at least 50% of the Loans at the time outstanding.
SECTION 5.20A. Asset Sales. Allied Waste and the Borrower will
use their commercially reasonable efforts to sell or cause their Subsidiaries to
sell the assets listed on Schedule 5.20 as soon as reasonably possible after the
Effective Date for Net Available Proceeds in an aggregate amount sufficient to
repay all amounts then outstanding under the Asset Sale Term Loan; provided that
the foregoing shall not require the sale of Specified Assets at terms or prices
which management of Allied Waste believes does not fairly represent the current
value of the assets being offered.
SECTION 5.21A. Termination of Liens. It will deliver to the
Administrative Agent, within 60 days after the Effective Date, a fully executed
Form UCC-3 Financing Statement Change reasonably satisfactory to the
Administrative Agent terminating each of the Existing Liens listed on Schedule
6.02(ii) and any other documents reasonably requested by the Administrative
Agent for the purpose of terminating such Existing Liens; provided, that such 60
day period may be extended by the Administrative Agent in its discretion by an
additional 60 days if the Administrative Agent is satisfied with the progress of
such terminations; provided further, that the Administrative Agent may waive
such termination requirement for any Existing Lien on Schedule 6.02(ii) if, in
its judgment, such Lien is insignificant or the UCC filing to be terminated
relates to obligations that have been repaid or extinguished.
ARTICLE V-B
Tranche D Affirmative Covenants
Until the Tranche D Commitments have expired or been
terminated and the principal of an interest on each Tranche D Loan and all fees
payable to Tranche D Lenders shall have been paid in full, each of Allied Waste
and the Borrower covenants and agrees with the Tranche D Lenders that:
SECTION 5.01B. Existence; Businesses and Properties. It will,
and will cause each of its Restricted Subsidiaries to:
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.06B and except for
failures by Restricted Subsidiaries to do so which could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain,
preserve, or renew, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the conduct
of its business; maintain and operate such business in substantially
the manner in which it is presently conducted and operated; comply with
all applicable laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted,
except for failures to comply which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made,
all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times, except for
failures to maintain and preserve property that could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 5.02B. Insurance. It will, and will cause each of its
Restricted Subsidiaries to:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers, or by way of
adequate self-insurance; maintain such other insurance or
self-insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same
or similar locations, including public liability insurance or
self-insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance or self-insurance as may be required by law. All insurance
policies may provide for reasonable deductible amounts.
(b) If any separate or additional property, casualty or
"umbrella" insurance policy is known by a Responsible Officer to have
been obtained by any member of the Allied Group, notify the
Administrative Agent thereof promptly, and promptly deliver to the
Administrative Agent a duplicate original copy of such policy.
SECTION 5.03B. Obligations and Taxes. It will, and will cause
each of its Subsidiaries to, pay its Indebtedness and other obligations promptly
and in accordance with their terms and pay and discharge promptly when due all
Taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided that (x) such payment of
Indebtedness or claims for labor, material or supplies shall not be required
pursuant to this Section 5.03B to the extent failure to so pay could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and would not result in any Senior Event of Default hereunder;
and (y) such payment and discharge shall not be required with respect to any
such Tax, assessment, charge, levy or claim so long as either (i) the validity
or amount thereof shall be contested in good faith by appropriate proceedings
and Allied Waste or the relevant Subsidiary shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such contest
operates to suspend collection of the contested obligation, Tax, assessment or
charge and enforcement of a Lien or (ii) such amount not so paid or discharged
is less than $50,000,000 in the aggregate.
SECTION 5.04B. Financial Statements, Reports, Etc. Allied
Waste shall furnish to the Administrative Agent (and the Administrative Agent
shall furnish to each Lender):
(a) within seven days after the filing with the Securities
and Exchange Commission of Allied Waste's Annual Report on Form 10-K
with respect to each fiscal year (and in any event within 105 days
after the end of such fiscal year), its Consolidated balance sheet and
related statements of operation's, stockholders' equity and cash flows
showing the financial condition of Allied Waste and its Restricted
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Restricted Subsidiaries during
such year, all audited by Xxxxxx Xxxxxxxx LLP or other independent
public accountants of recognized national standing acceptable to the
Administrative Agent and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect
that such Consolidated financial statements fairly present the
financial condition and results of operations of Allied Waste and its
Restricted Subsidiaries on a Consolidated basis in accordance with GAAP
(it being understood that such financial statements and opinion may be
delivered, if included therein, in the form of such Annual Report on
Form 10-K and any related Annual Report to Stockholders);
(b) within seven days after the filing with the Securities and
Exchange Commission of Allied Waste's Quarterly Report on Form 10-Q
with respect to each of the first three fiscal quarters of each fiscal
year (and in any event within 60 days after the end of each such fiscal
quarter), its Consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of Allied Waste and its Restricted Subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Restricted Subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, all certified by one
of its Financial Officers as fairly presenting the financial condition
and results of operations of Allied Waste and its Restricted
Subsidiaries on a Consolidated basis in accordance with GAAP, subject
to normal year-end audit adjustments and lack of footnote disclosures
(it being understood that such financial statements may be delivered,
if included therein, in the form of such Quarterly Report on Form
10-Q);
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of the accounting firm
or Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that in making its examination in
connection with rendering such opinion or certificate with respect to
such statements, such Person has not obtained knowledge that an Event
of Default or, if such certificate is of a Financial Officer, a Default
has occurred or, if such Financial Officer has obtained knowledge that
an Event of Default or, if such certificate is of a Financial Officer,
a Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect
thereto and (ii) setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with
the covenants contained in Sections 6.04B, 6.05B, 6.06B, 6.08B and
6.15B;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any member of the Allied Group with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) at the time required for delivery of financial statements
pursuant to paragraph (a) or (b) of this Section, (x) a report in form
and substance reasonably satisfactory to the Administrative Agent of
all Permitted Acquisitions consummated during the most recent fiscal
quarter covered by such financial statements, which report shall
identify, inter alia, each Permitted Acquisition having total
Acquisition Consideration of $25,000,000 or more (a "Large
Acquisition") and, for each Large Acquisition, a description of the
total Acquisition Consideration therefor; and (y) a list of all
entities that became or ceased to be Domestic Subsidiaries of Allied
Waste during such fiscal quarter;
(f) promptly from time to time, such other information
regarding the operations, business affairs and financial condition of
members of the Allied Group, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Tranche D Lender acting
through the Administrative Agent may reasonably request; and
(g) within 90 days after the beginning of each fiscal year, a
copy of the annual forecasts of Allied Waste, prepared by management of
Allied Waste, in each case in form and detail reasonably satisfactory
to the Administrative Agent, consisting of Consolidated balance sheets
and related statements of operations and cash flows of Allied Waste and
its Restricted Subsidiaries for such fiscal year and for each of the
following fiscal years occurring in whole or in part during the term of
this Agreement.
SECTION 5.05B. Litigation and Other Notices. It will, and
will cause each of its Restricted Subsidiaries to, furnish to the Administrative
Agent and each Tranche D Lender:
(a) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Tranche D Default or Tranche D Event of Default has
occurred, specifying the nature and extent thereof and the corrective
action (if any) taken or proposed to be taken with respect thereto;
(b) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice of the filing or commencement of, or of any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against any member of the Allied Group that
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect;
(c) prompt written notice of any development known to any
Responsible Officer that has had, or could, individually or in the
aggregate, reasonably be expected to have, a Material Adverse Effect;
and
(d) as soon as possible and in any event within five Business
Days after any Responsible Officer has knowledge thereof, written
notice that a Change in Control has occurred or is reasonably likely to
occur.
SECTION 5.06B. Employee Benefits. It will, and will cause
each of its Subsidiaries to:
(a) comply with the applicable provisions of ERISA and the
Code (excluding, however, noncompliance that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect); and
(b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible
Officer has knowledge that, any ERISA Event has occurred and is then
outstanding that, alone or together with any other ERISA Event could
reasonably be expected to result in liability of any member of the
Allied Group in an aggregate amount exceeding $5,000,000 or (ii)
requiring payments by any member of the Allied Group exceeding
$2,500,000 in any year, a statement of a Financial Officer of the
Borrower, setting forth details as to such ERISA Event and the action,
if any, that Allied Waste proposes to take with respect thereto.
SECTION 5.07B. Maintaining Records; Access to Properties and
Inspections. It will, and will cause each of its Subsidiaries to, keep proper
books of record and account sufficient to permit the preparation of financial
statements in conformity with GAAP. Each of Allied Waste and the Borrower will,
and will cause each of its Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Tranche D Lender
to visit and inspect (at the expense of the Lenders unless an Event of Default
has occurred and is continuing, in which case at the expense of the Borrower)
the records, books, accounts and the properties of members of the Allied Group
at reasonable times, with reasonable notice and without causing material
disruption, and as often as reasonably requested and to make extracts from and
copies of such records, books and accounts and permit any representatives
designated by the Administrative Agent or any Tranche D Lender to discuss the
affairs, finances and condition of members of the Allied Group with the officers
thereof and independent accountants therefor (subject to reasonable requests of
confidentiality, including requirements imposed by law or contract).
SECTION 5.08B. Environmental Laws. It will, and will cause of
each of its Subsidiaries to:
(a) comply, and use commercially reasonable efforts to cause
all lessees and other Persons occupying its Properties to comply, in
all respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all
Environmental Permits necessary for its operations and Properties;
maintain appropriate financial assurance mechanisms in connection with
its landfill operations as required under Environmental Law; and
conduct any remedial action in accordance with Environmental Laws,
except where such noncompliance or failure to obtain or renew
Environmental Permits, maintain financial assurance mechanisms or to
conduct any remedial action could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
provided that no member of the Allied Group shall be required to
conduct remedial actions to the extent that any applicable obligation
to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances; and
(b) with respect to any Permitted Acquisition having
Acquisition Consideration in excess of $50,000,000, and any acquisition
of any other ownership or leasehold interest in, or the entry into any
agreement to conduct operations of, any landfill, transfer station or
other waste treatment or disposal facility the total value of which is
in excess of $50,000,000, prior to consummating any such acquisition or
commencement of any operations under any such agreement or lease,
obtain and review a written assessment, prepared by an environmental
consulting firm recognized within the municipal solid waste industry
and among environmental professionals as competent and reputable and
which the Borrower has reasonably determined to be suitable, that
reasonably addresses compliance with Environmental Law and material
Environmental Liabilities associated with the subject of such
acquisition, agreement or lease.
SECTION 5.09B. Preparation of Environmental Reports. If a
Tranche D Default or Tranche D Event of Default caused by reason of a breach of
Section 3.16 or 5.08B shall have occurred and be continuing, the Administrative
Agent is authorized to engage an environmental consulting firm selected by the
Administrative Agent reasonably acceptable to Allied Waste to prepare, on behalf
of the Administrative Agent, the Lenders and the Issuing Banks but at the sole
cost and expense of the Borrower, an environmental site assessment report for
the Properties which are the subject of such default, which environmental site
assessment report shall estimate the cost of any compliance or remedial action
(if such costs are reasonably ascertainable) and evaluate potentially material
Environmental Claims and potentially material Environmental Liabilities in
connection with such Properties. Each of Allied Waste and the Borrower will, and
will cause each of its Subsidiaries to, cooperate fully with the Administrative
Agent and such environmental consulting firms in their preparation of such
environmental assessment reports, including (without limitation), permitting any
representatives designated by the Administrative Agent or such environmental
consulting firms to visit and inspect the related Properties at reasonable times
and as often as reasonably requested and to make extracts from and copies of
environmental records of the members of the Allied Group. If requested by the
Borrower, the Borrower shall be entitled to have access to the data relating to
such environmental assessment reports.
SECTION 5.10B. Compliance with Terms of Leaseholds. It will
make, and will cause each of its Restricted Subsidiaries to make, all payments
and otherwise perform all material obligations in respect of all Material Leases
to which a member of the Allied Group is a party, keep such Material Leases in
full force and effect and not allow such Material Leases to lapse or be
terminated or any rights to renew such Material Leases to be forfeited or
canceled, notify the Administrative Agent of any default by any party with
respect to such Material Leases and cooperate with the Administrative Agent in
all respects to cure any such default and cause each of Allied Waste's
Restricted Subsidiaries to do so, except, in any case, where the failure to do
any of the foregoing, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.11B. Performance of Material Agreements. It will,
and will cause each of its Restricted Subsidiaries to perform and observe all of
the terms and provisions of each Material Agreement, maintain each such Material
Agreement in full force and effect, enforce such Material Agreement in
accordance with its terms, except, in any case, where the failure to do any of
the foregoing could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 5.12B. Inactive Subsidiaries. Except as specified on
Schedule 5.12, Allied Waste shall cause each Inactive Subsidiary to be dissolved
within 90 days of the date hereof; provided that if after such period Allied
Waste has not caused any Inactive Subsidiary to be so dissolved, then each such
Inactive Subsidiary shall be deemed to be (as of such 90th day) a newly formed
Specified Subsidiary for purposes of Section 5.18B.
SECTION 5.13B. Year 2000. Allied Waste will use its
commercially reasonable efforts to ensure that any computer systems and/or
software used in the operation of Allied Waste's or any of its Subsidiaries'
businesses is modified or replaced to the extent necessary to prevent or avoid
any the occurrence of any Material Adverse Effect as a result of the
commencement of the year 2000.
SECTION 5.14B. Compliance with Laws. It will, and will cause
each of its Restricted Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.15B. Use of Proceeds and Letters of Credit. The
proceeds of the Term Loans, together with the proceeds of the Sponsor Preferred
Stock and the Senior Subordinated Notes will be used only for the payment of (a)
the Merger Consideration, (b) fees and expenses payable in connection with the
Transactions, (c) the repayment of the Indebtedness and other obligations under
the Existing Credit Agreement and the BFI Credit Facility, (d) the repayment of
commercial paper of BFI and (e) the payment of severance and termination
obligations of BFI in connection with the Merger. The proceeds of the Revolving
Loans and Swingline Loans will be used only for Permitted Acquisitions,
Investments permitted by Section 6.05B, Capital Expenditures payments, if any,
arising out of the exercise by BFI stockholders of their appraisal rights in
connection with the Merger and general corporate purposes, including working
capital. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of Regulations U or X of
the Board.
SECTION 5.16B. Interest Rate Protection. As promptly as
practicable, and in any event within 90 days after the Effective Date, the
Borrower will enter into, and thereafter for a period of not less than 3 years
will maintain in effect, one or more interest rate protection agreements on such
terms and with such parties as shall be reasonably satisfactory to the Initial
Lenders, the effect of which shall be to fix or limit the interest cost to the
Borrower with respect to at least 50% of the Loans at the time outstanding.
SECTION 5.17B. Asset Sales. Allied Waste and the Borrower will
use their commercially reasonable efforts to sell or cause their Subsidiaries to
sell the assets listed on Schedule 5.20A as soon as reasonably possible after
the Effective Date for Net Available Proceeds in an aggregate amount sufficient
to repay all amounts then outstanding under the Asset Sale Term Loan; provided
that the foregoing shall not require the sale of Specified Assets at terms or
prices which management of Allied Waste believes does not fairly represent the
current value of the assets being offered.
SECTION 5.18B. Further Assurances to the Tranche D Lenders. It
will, and will cause each of its Restricted Subsidiaries to:
(a) Take such action from time to time as shall be necessary
to ensure that all Specified Subsidiaries (including Specified
Subsidiaries formed or acquired pursuant to Permitted Acquisitions) are
parties to the Subordinated Subsidiary Guarantee Agreement hereunder;
provided, however, that the foregoing shall not apply to Specified
Subsidiaries with unaffiliated minority holders of Voting Stock which
do not provide required consent to such Subordinated Subsidiary
Guarantee Agreement; provided, further, that Allied Waste and the
Borrower shall use commercially reasonable efforts to obtain any such
required consents. Without limiting the generality of the foregoing, in
the event that Allied Waste or any of the Specified Subsidiaries shall
form or acquire any new Subsidiary after the date hereof that shall
constitute a Specified Subsidiary, and in connection with each
Permitted Acquisition, Allied Waste and the Specified Subsidiaries
will, promptly after such formation or Permitted Acquisition:
(i) cause each new Specified Subsidiary to become
party to the Subordinated Subsidiary Guarantee Agreement;
and
(ii) deliver such proof of corporate or other
borrower action, incumbency of officers, opinions of counsel
and other documents as the Administrative Agent shall have
reasonably requested.
SECTION 5.19B. Additional Permitted Subordinated Debt.
Notwithstanding any other provision of this Agreement, the Borrower will issue,
as promptly as reasonably possible, an aggregate principal amount of Senior
Subordinated Notes equal to not less than $2,000,000,000 and not more than
$2,500,000,000 (depending on the amount of Net Available Proceeds from Asset
Sales or the issuance of Equity Interests that the Borrower anticipates will be
applied to the reduction of the Tranche D Commitments or Tranche D Term Loans
pursuant to and in accordance with Section 2.10(f) and (j)).
SECTION 5.20B. Preliminary Offering Memorandum. The Borrower
will deliver to the Initial Lenders, as promptly as reasonably possible, a
preliminary prospectus or preliminary offering memorandum or preliminary private
placement memorandum (any of the foregoing referred to herein, as a "Preliminary
OM") suitable for use in a customary "high-yield road show" relating to the
Senior Subordinated Notes, which contains all financial statements and other
data to be included therein, including all audited financial statements, all
unaudited financial statements that would be necessary for the sale of the
Senior Subordinated Notes in the high-yield market. The Borrower agrees that if,
at any time prior to completion of the sale or placement of the Senior
Subordinated Notes with the purchasers thereof, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Initial Lenders or counsel for the Borrower, to amend or supplement the
Preliminary OM in order that the Preliminary OM will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to purchaser, not misleading, or if it is necessary to
amend or supplement the Preliminary OM to comply with applicable law, to
promptly prepare such amendment or supplement as may be necessary to correct
such untrue statement or omission or so that the Preliminary OM, as so amended
or supplemented, will comply with applicable law.
ARTICLE VI-A
Negative Covenants
Until the Senior Commitments have expired or terminated and
the principal of and interest on each Senior Loan and all fees payable to Senior
Lenders and Issuing Banks hereunder have been paid in full and all Letters of
Credit have expired or been terminated and all LC Disbursements shall have been
reimbursed, each of Allied Waste and the Borrower covenants and agrees with the
Senior Lenders that:
SECTION 6.01A. Indebtedness; Certain Equity Securities. (a)
Allied Waste and the Borrower will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) the Senior Subordinated Notes outstanding on the
Effective Date in an aggregate principal amount not to exceed
$2,500,000,000 and Permitted Subordinated Debt (including Senior
Subordinated Notes and Exchange Notes) issued after the Effective Date
to refinance (and in a principal amount not in excess of the principal
amount of) the Tranche D Loans outstanding as of the Effective Date;
(iii) Indebtedness (including Guarantees) existing on the date
hereof and set forth in Schedule 6.01A;
(iv) Hedging Agreements permitted pursuant to Section 6.07A;
(v) Acquired Indebtedness of a Restricted Subsidiary acquired
after the date hereof and Acquired Indebtedness of a corporation merged
or consolidated with or into the Borrower or a Restricted Subsidiary
after the date hereof, which Indebtedness in each case exists at the
time of such acquisition, merger, consolidation or conversion into a
Restricted Subsidiary and is not created in contemplation of such event
and where such acquisition, merger or consolidation is permitted by
this Agreement; provided that the Borrower and the Restricted
Subsidiaries comply with the provisions of Section 5.10A with respect
to any such acquired or newly formed Restricted Subsidiary;
(vi) unsecured Indebtedness of Allied Waste, the Borrower or
any Restricted Subsidiary that is issued to a seller of an Acquired
Business and incurred in connection with a Permitted Acquisition;
(vii) unsecured Guarantees in respect of (x) Indebtedness
permitted pursuant to subparagraphs (ii), (v), (vi), (xiii), and (xv)
of this Section 6.01A, and (y) Indebtedness of Ref-Fuel; provided that
such Guarantees pursuant to this clause (vii)(y) are required to be
provided pursuant to contractual obligations existing on the date
hereof; provided that any Guarantees in respect of Indebtedness that is
subordinated to any of the Senior Obligations or to Guarantees of the
Senior Obligations shall also be subordinated to the Guarantees in
favor of the Senior Lenders under the Loan Documents or to the Senior
Obligations, as the case may be, to the same extent as such
Indebtedness is subordinated to any of the Senior Obligations;
(viii) Indebtedness of the Borrower or any Subsidiary Loan
Party to any other Subsidiary or the Borrower, so long as such
Indebtedness is subordinated to all Senior Obligations and all Tranche
D Obligations;
(ix) subordinated Indebtedness (i) of Allied Waste to the
Borrower or any wholly owned Subsidiary, so long as the proceeds of
such Indebtedness are used by Allied Waste solely for purposes
permitted under Section 6.10(A), or (ii) of the Borrower or any wholly
owned Restricted Subsidiary to Allied Waste;
(x) Indebtedness of the Borrower and Allied Waste under the
Allied Guarantee;
(xi) Indebtedness (including tax exempt financings and Capital
Lease Obligations) of the Borrower or the Restricted Subsidiaries
incurred after the Effective Date to finance Capital Expenditures
permitted under Section 6.15A; provided that (A) such Indebtedness is
incurred prior to or within 120 days after the acquisition, completion
of construction, refurbishment or improvement of the fixed or capital
assets being financed and does not exceed 100% of the cost thereof and
(B) the aggregate principal amount of (1) any Indebtedness incurred
pursuant to this paragraph (xi) and (2) Capital Lease Obligations
pursuant to Section 6.04A outstanding at any time shall not exceed the
greater of (I) $700,000,000 and (II) an amount equal to 5% of
Consolidated Total Assets;
(xii) Indebtedness incurred pursuant to any sale and leaseback
transaction permitted by Section 6.04A;
(xiii) extensions, renewals or refinancings of Indebtedness
under paragraphs (iii) and (v) so long as (1) such Indebtedness
("Refinancing Indebtedness") is in an original aggregate principal
amount not greater than the aggregate principal amount of, and unpaid
interest on, the Indebtedness being extended, renewed or refinanced
plus the amount of any premiums required to be paid thereon and fees
and expenses associated therewith, (2) such Refinancing Indebtedness
has a later or equal final maturity and a longer or equal weighted
average life than the Indebtedness being extended, renewed or
refinanced, (3) the interest rate applicable to such Refinancing
Indebtedness shall be a market interest rate (as determined in good
faith by the Board of Directors of the Borrower) as of the time of such
extension, renewal or refinancing, (4) if the Indebtedness being
extended, renewed or refinanced is subordinated to the Senior
Obligations, such Refinancing Indebtedness is subordinated to the
Senior Obligations, (5) the covenants, events of default and any
Guarantees thereof, taken as a whole, shall be determined in good faith
by the board of directors of the Borrower to be no less favorable to
the Lenders than those contained in the Indebtedness being refinanced
and (6) at the time and after giving effect to such renewal or
refinancing, no Senior Event of Default shall have occurred and be
continuing;
(xiv) Indebtedness consisting of reimbursement obligations
under surety, indemnity, performance, release and appeal bonds and
guarantees thereof, in each case securing obligations not constituting
Indebtedness for borrowed money and obtained in the ordinary course of
business;
(xv) Indebtedness of Foreign Subsidiaries, Insurance
Subsidiaries, and other Restricted Subsidiaries that are not Subsidiary
Loan Parties incurred after the Effective Date in an aggregate
principal amount outstanding at any time not exceeding the greater of
(1) $280,000,000 and (2) 2% of Consolidated Total Assets;
(xvi) unsecured Indebtedness of the Borrower or Allied Waste
in addition to that permitted by paragraphs (i) through (xv) above;
provided that such Indebtedness has a longer or equal weighted average
life than the Senior Term Loans hereunder, such Indebtedness is
permitted pursuant to Section 6.14A and 100% of the Net Available
Proceeds of such Indebtedness are utilized to prepay Term Loans in
accordance with Section 2.11(c);
(xvii) contingent liabilities arising out of endorsements of
checks and other negotiable instruments for deposit or collection in
the ordinary course of business;
(xviii) other Indebtedness of Allied Waste, the Borrower and
the Restricted Subsidiaries in an aggregate principal amount
outstanding at any time not exceeding the greater of (1) $420,000,000
and (2) 3% of Consolidated Total Assets; and
(xix) all premiums (if any), interest (including post-petition
interest and other than capitalized interest), fees, expenses,
indemnities, charges and additional or contingent interest on
obligations described in clauses (i) through (xviii) above.
(b) Neither Allied Waste nor the Borrower will, nor
will they permit any Restricted Subsidiary to, issue any Preferred
Stock or other preferred Equity Interests, other than the Sponsor
Preferred Stock and other Non-Cash Pay Preferred Stock of Allied Waste
or the Borrower unless the Net Available Proceeds thereof are applied
in the manner and to the extent required under Section 2.11(c).
SECTION 6.02A. Liens. Neither Allied Waste nor the Borrower
will, nor will it cause or permit any of the Restricted Subsidiaries to, create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any Person, including any Subsidiary of Allied
Waste) now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except:
(a) Liens on properties or assets of members of the Allied
Group existing on the date hereof and set forth in Schedule 6.02
(excluding, however, following the making of the initial extensions of
credit hereunder, the Indebtedness to be repaid with the proceeds of
such Loans, as indicated on Schedule 6.02); provided that such Liens
shall secure only those obligations (and extensions, renewals and
refinancings thereof permitted hereby) which they secure on the date
hereof;
(b) Liens created under the Loan Documents;
(c) Permitted Encumbrances;
(d) purchase money security interests in real property,
improvements thereto, equipment or other fixed assets hereafter
acquired (or, in the case of improvements, equipment or other fixed
assets, constructed or refurbished) by the Borrower or any Subsidiary
(including such security interests arising out of Capital Lease
Obligations); provided that (i) such security interests secure
Indebtedness permitted by Section 6.01A(xi), (ii) such security
interests are incurred, and the Indebtedness secured thereby is
created, within 120 days after such acquisition (or completion of such
construction), (iii) the Indebtedness secured thereby does not exceed
100% of the cost of such real property, improvements or equipment at
the time of such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of the Borrower
or any Restricted Subsidiary (other than the proceeds of the real
property, improvements, equipment or other fixed assets subject to the
Lien);
(e) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02A, provided that such Lien does not
apply to any additional property or assets of Allied Waste, the
Borrower or any Subsidiary (other than additions to and the proceeds of
the property or asset subject to the Lien) and provided that
Refinancing Indebtedness relating to the AWNA Senior Notes or the BFI
Indenture Debt shall not be secured by any Lien or entitled to the
benefits of the Shared Collateral Pledge Agreement or Shared Collateral
Security Agreement;
(f) any Lien on the property or assets of an Acquired Business
(other than on the stock or Equity Interests of a Subsidiary) securing
Indebtedness permitted by Section 6.01A(v); provided that such Lien
existed at the time of and was not created in contemplation of the
acquisition of such Acquired Business;
(g) Liens arising from Uniform Commercial Code financing
statements and similar documents filed on a precautionary basis in
respect of operating leases intended by the parties to be true leases
(other than any such leases entered into in violation of this
Agreement);
(h) any Lien on the property or assets of any Foreign
Subsidiary, Insurance Subsidiary or other Restricted Subsidiary that is
not a Loan Party Subsidiary securing Indebtedness permitted by Section
6.01A(xv); and
(i) additional Liens on property (but not on the capital stock
or other ownership interests of any Subsidiary owned by the Borrower,
Allied Waste or any Subsidiary Loan Party) to secure Indebtedness
(including, without limitation, Capital Lease Obligations in addition
to those permitted by paragraph (d) of this Section 6.02A) so long as
neither the outstanding aggregate principal amount of such Indebtedness
nor the aggregate book value of assets subject to such Liens at any
time exceeds the greater of (1) $420,000,000 and (2) 3% of Consolidated
Total Assets.
(j) any Lien pursuant to Environmental Law for costs or
damages which are not yet due (by virtue of a written demand for
payment by a Governmental Authority) or which are being contested in
compliance with the standard set forth in section 5.08(A)(a), or on
property that the Borrower or a Subsidiary has determined to abandon if
the sole recourse for such costs or damages is to such property;
provided that the liability of the Borrower and the Subsidiaries with
respect to the matters giving rise to all such Liens shall not, in the
reasonable estimate of the Borrower (in light of all attendant
circumstances, including the likelihood of contribution by third
parties), exceed the greater of (i) $280,000,000 and (ii) 2% of the
Consolidated Total Assets;
Neither Allied Waste, the Borrower, nor any Restricted Subsidiary will issue or
assume any Indebtedness under the AWNA Senior Note Indenture, the BFI Indenture
or any supplement or amendment thereto if such Indebtedness would be entitled to
be secured on a pari passu basis with the Senior Obligations or otherwise by any
Lien on any Collateral securing the Senior Obligations.
SECTION 6.03A. No Other Negative Pledge. Allied Waste will
not, nor will it cause or permit any of its Restricted Subsidiaries to, enter
into any agreement prohibiting or conditioning (including pursuant to any pari
passu security requirement) the creation or assumption of any Lien upon any of
its property or assets other than:
(i) in favor of the Senior Lenders, the Issuing Banks or the
Secured Parties;
(ii) in favor of the holders of Tranche D Term Loans, Exchange
Notes or Permitted Subordinated Debt; provided that such agreement does
not so restrict Liens securing the Senior Obligations;
(iii) in connection with Indebtedness that may be secured by a
Lien or in connection with obligations secured by Permitted
Encumbrances in compliance with Section 6.02(A)(a), (d), (e), (f), (g),
(h) or (i); provided that such prohibition or condition does not apply
to any property or assets now or hereafter in existence not subject to
such Lien;
(iv) in connection with any lease permitted under Section
6.04A solely to the extent that such lease prohibits a Lien on the
lease or the property subject to such lease; or
(v) pursuant to any agreement entered into by any member of
the Allied Group in connection with an Asset Sale for the period
beginning with the date such agreement is entered into through the date
such Asset Sale is consummated; provided that (x) such negative pledge
shall only relate to the property being sold pursuant to such Asset
Sale and (y) such Asset Sale is permitted hereunder.
SECTION 6.04A. Sale and Lease-Back Transactions. Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
enter into any arrangement, directly or indirectly, with any Person whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred; provided
that (i) the Borrower or any Restricted Subsidiary may enter into any such
transaction with respect to any lease that is required to be capitalized in
accordance with GAAP and is in compliance with Section 6.02A(d) or (i) and (ii)
the aggregate principal amount of (1) Capital Lease Obligations associated
therewith and (2) any Indebtedness incurred pursuant to Section 6.01A(xi) at any
time outstanding does not exceed the greater of (A) $700,000,000 and (B) 5% of
Consolidated Total Assets.
SECTION 6.05A. Investments, Loans, Guarantees and
Acquisitions. Allied Waste will not, and will not permit any of its Restricted
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Restricted Subsidiary prior to such
merger) any Investment in any other Person, or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Investments by Allied Waste and the Borrower (i) existing
on the date hereof and (ii) made after the date hereof in the capital
stock or other ownership interests of the Borrower and entities that,
prior to and after such investments, are Loan Parties; loans or
advances by the Borrower or any Loan Party to the Borrower or any Loan
Party; and loans or advances by the Borrower or any Loan Party to
Allied Waste or by Allied Waste to the Borrower or any Loan Party;
provided that in any event no Loan Party shall make any Investments in,
or loans or advances to any Insurance Subsidiary, any Foreign
Subsidiary, any Restricted Subsidiary that is not a Loan Party or any
Unrestricted Subsidiary after the date hereof (other than in accordance
with clause (i) below);
(b) the Merger;
(c) Permitted Investments;
(d) Investments by the members of the Allied Group existing on
the date hereof and set forth in Schedule 6.05;
(e) loans and advances to employees of members of the Allied
Group (including for travel, entertainment and relocation expenses) in
the ordinary course of their business;
(f) loans by members of the Allied Group to their employees in
connection with management incentive plans not to exceed $25,000,000 at
any time outstanding; provided that such limitation shall not apply to
loans the proceeds of which are used to purchase common stock of Allied
Waste;
(g) guarantees not constituting Indebtedness by Allied Waste
or any Restricted Subsidiary of any contractual obligation (not
Indebtedness) of the Borrower or any Loan Party;
(h) Investments in the capital stock or other ownership
interests of any Specified Subsidiary newly organized after the date
hereof, provided that (i) such capital stock or interest is pledged to
the Collateral Agent or the Collateral Trustee pursuant to the
Non-Shared Collateral Pledge Agreement or the Shared Collateral Pledge
Agreement and (ii) Allied Waste, the Borrower and such Subsidiary
comply with the applicable provisions of Section 5.10A with respect to
such newly formed Subsidiary;
(i) other Investments made after the Effective Date in an
aggregate amount at any time outstanding not to exceed the greater of
(x) $420,000,000 and (y) 3% of Consolidated Total Assets;
(j) extensions of trade credit in the ordinary course of
business in an aggregate amount not at any time exceeding $25,000,000;
(k) receivables owing to members of the Allied Group that
arise in the ordinary course of business and are payable or
dischargeable in accordance with customary trade terms;
(l) Permitted Acquisitions and other transactions permitted by
6.06A;
(m) investments in or acquisitions of landfills, collection
centers or other producing assets located in the United States pursuant
to contemporaneous exchanges of similar assets with any other Person;
provided that any portion of assets acquired for consideration other
than any such exchange shall be deemed a Capital Expenditure and be
subjected to the limitations of Section 6.15A;
(n) any Investment consisting of a Hedging Agreement permitted
by Section 6.07A;
(o) any Investment acquired by any of the Loan Parties (A) in
exchange for any other Investment or accounts receivable held by such
Loan Party as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable; (B) as a result of a foreclosure by such Loan Party or
other transfer of title with respect to any secured Investment in
default or (C) in connection with the acquisition of an Acquired
Business permitted hereunder which was an Investment of such Acquired
Business existing prior to the date of such acquisition and not made in
contemplation thereof; and
(p) Investments in Ref-Fuel and Guarantees of Indebtedness of
Ref-Fuel required to be provided pursuant to contractual obligations
existing on the date hereof by any Loan Party.
Notwithstanding any other provision of this Agreement but subject to the proviso
below, Allied Waste and the Borrower will not, and will not permit any
Restricted Subsidiary to, (i) effect any acquisition (including any Permitted
Acquisition) of a business concern or purchase or acquire any Equity Interests
of any business concern other than such an acquisition or purchase made by (or
pursuant to a merger or consolidation of) the Borrower or a Restricted
Subsidiary other than BFI or its Subsidiaries, (ii) effect any transfer of
material assets or properties, or of Equity Interests in any Restricted
Subsidiary, to, or make any material investment (other than intercompany loans
and advances permitted by Section 6.01A) in, BFI or its Restricted Subsidiaries
(other than any such transfer or investment made by BFI or its Restricted
Subsidiaries) or (iii) effect any merger or consolidation with BFI or its
Subsidiaries (other than any such merger or consolidation involving only BFI or
its then existing Subsidiaries); provided, however, that any transaction
referred to in clauses (i), (ii) or (iii) above may be effected if (x) such
transaction can reasonably be expected to result in material tax, operational or
corporate governance savings or efficiencies or benefits of the Allied Group or
avoid material tax, operational or corporate governance costs, inefficiencies or
detriments to the Allied Group that would result from effecting the relevant
acquisition, transfer, investment or merger in a manner otherwise permitted by
this paragraph and (y) Allied Waste and the Borrower, in the exercise of their
commercially reasonable efforts, are not able to achieve comparable tax savings,
efficiencies or benefits or substantially avoid such material tax, operational
or corporate governance costs, inefficiencies or detriments, by restructuring
the relevant transaction or otherwise, in a manner permitted by this paragraph
without regard to this proviso.
SECTION 6.06A. Mergers, Consolidations, Sales of Assets and
Acquisitions. Neither Allied Waste nor the Borrower will, nor will it cause or
permit any of its Restricted Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or conduct any Asset Sale of (in one transaction or in a series of transactions)
all or any substantial part of its assets (whether now owned or hereafter
acquired), or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
Person, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Senior Event of Default or Senior Default shall have
occurred and be continuing (i) any wholly owned Restricted Subsidiary
of Allied Waste (other than an Insurance Subsidiary, BFI or any
subsidiary of BFI) may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation and (ii) any Restricted
Subsidiary of Allied Waste (other than an Insurance Subsidiary) may
merge into or consolidate with any other Restricted Subsidiary of
Allied Waste (other than an Insurance Subsidiary) in a transaction in
which the surviving entity is a wholly owned Restricted Subsidiary of
Allied Waste and no Person other than the Borrower or a wholly owned
Subsidiary of Allied Waste receives any consideration (provided that
BFI and its Restricted Subsidiaries shall not merge into or consolidate
with the Borrower or any Subsidiary other than BFI and its Restricted
Subsidiaries). In connection with one or more Permitted Acquisitions,
subject to Section 6.05A in the case of BFI, and its Subsidiaries, the
Borrower or any of its Restricted Subsidiaries (including BFI and any
Restricted Subsidiary of BFI) may merge with or into another Person,
BFI or any Restricted Subsidiary of BFI may also engage in any
transaction referred to in clauses (i) and (ii) above if (x) such
transaction can reasonably be expected to result in material tax,
operational or corporate governance savings, efficiencies or benefits
of the Allied Group or avoid material tax, operational or corporate
governance costs, inefficiencies or detriments to the Allied Group that
would result from effecting the merger of the Borrower, such Restricted
Subsidiary of the Borrower, BFI or such Restricted Subsidiary of BFI,
as the case may be, into the Borrower or such other Restricted
Subsidiary, as the case may be, and (y) Allied Waste and the Borrower,
in the exercise of their commercially reasonable efforts, are not able
to achieve comparable tax, operational or corporate governance savings,
efficiencies or benefits or substantially avoid such material tax
costs, inefficiencies or detriments by restructuring the relevant
transaction or otherwise, in a manner permitted by this paragraph (a)
without regard to this proviso;
(b) any Restricted Subsidiary of Allied Waste (other than the
Borrower) may change the jurisdiction in which it is incorporated so
long as the new jurisdiction of any Domestic Subsidiary is in the
United States;
(c) the Borrower or any of the Loan Parties (other than (i)
Insurance Subsidiaries and (ii) BFI and its Subsidiaries, unless
permitted pursuant to the last paragraph of Section 6.05A) may make
Permitted Acquisitions and Investments permitted by Section 6.05(A)(a),
(h), (i) and (p);
(d) the Borrower or any of its Restricted Subsidiaries may
conduct the Asset Sales set forth on Schedule 5.20A hereto and other
Asset Sales of a type not described in Section 5.20A, provided that the
Net Available Proceeds of each such Asset Sale shall be applied in the
manner set forth in Section 2.11; provided further that any sale,
transfer or other disposition of assets or stock with a fair market
value in excess of 2% of Consolidated Total Assets and not otherwise
prohibited by this Section 6.06A shall not be permitted unless (A) such
sale, transfer or other disposition is for consideration at least 75%
of which is cash and (B) such consideration is at least equal to the
fair market value of the assets, transferred or disposed of (as
determined in good faith by the Board of Directors or officers of the
Borrower);
(e) the Borrower and its Restricted Subsidiaries may effect
asset swaps permitted by Section 6.05A(m); and
(f) Allied Waste may make Asset Sales to any of the Loan
Parties and any Loan Party may make Assets Sales to Allied Waste or to
another Loan Party.
SECTION 6.07A. Hedging Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.19A (b)
Hedging Agreements with respect to AWNA Senior Notes and BFI Indenture Debt, (c)
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Allied Waste or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities and (d) Hedging Agreements
existing on the Effective Date.
SECTION 6.08A. Restricted Payments; Certain Payments of
Indebtedness. (a) Allied Waste will not, nor will it permit any of its
Restricted Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) Allied Waste may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its capital
stock, (ii) Restricted Subsidiaries of the Borrower may declare and pay
dividends ratably with respect to their capital stock, (iii) Allied Waste may
make Restricted Payments, not exceeding an aggregate amount of $25,000,000
during any fiscal year, pursuant to and in accordance with the stock option
plans or other benefit plans or in connection with incentive or compensation
arrangements for current or former management or employees of the Borrower and
its Restricted Subsidiaries, (iv) the Borrower or any Restricted Subsidiary may
declare and make dividend payments to Allied Waste solely to the extent
necessary for Allied Waste to pay for taxes and to pay administrative expenses
to conduct its business in accordance with Sections 5.01A(b) and 6.10A, (v)
Allied Waste may declare and pay dividends in respect of the Sponsor Preferred
Stock payable solely in additional shares of Sponsor Preferred Stock (or other
capital stock, as provided therein); (vi) the Borrower or any Restricted
Subsidiary may pay cash dividends to Allied Waste in an amount sufficient to
permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock
(including shares theretofore paid as dividends thereon in accordance with
clause (v) hereof) and Allied Waste may pay cash dividends on such Sponsor
Preferred Stock; provided, however, that all cash dividend payments in
accordance with this clause (vi) are subject to the satisfaction of the
following additional conditions on the date of such dividend payment and after
giving effect thereto:
(w) no Default or Event of Default has occurred and is
continuing upon declaration of such cash dividend, after giving effect
thereto;
(x) no principal amount of either the Asset Sale Term Loans or
the Tranche D Loans remains outstanding;
(y) the Leverage Ratio as of the last day of the previous
fiscal quarter is less than or equal to 4.00 to 1.00; and
(z) the Interest Coverage Ratio for the Rolling Period most
recently ended prior to the date of such dividend payment, taking into
account that such dividend is payable in cash, is not less than that
required by Section 6.13A;
(vii) Allied Waste and its Restricted Subsidiaries may make
Restricted Payments to the extent required by the terms of its joint venture or
similar agreements in effect on the date hereof and listed on Schedule 6.08A;
provided that immediately prior, and after giving effect to, such Restricted
Payment, no Senior Event of Default shall have occurred and be continuing;
(viii) Allied Waste may make Restricted Payments in respect of
its capital stock; provided that no such Restricted Payments shall be permitted
by this clause (viii) unless:
(v) no Default or Event of Default has occurred and is
continuing upon declaration of such Restricted Payment, after giving
effect thereto;
(w) no principal amount of either the Asset Sale Term Loan or
the Tranche D Loans remain outstanding;
(x) the Leverage Ratio as of the last day of the previous
fiscal quarter is less than or equal to 4.00 to 1.00;
(y) the Interest Coverage Ratio for the Rolling Period most
recently ended prior to the date of such dividend payment, taking into
account that such dividend is payable in cash, is not less than that
required by Section 6.13A; and
(z) the aggregate amount of Restricted Payments made pursuant
to this clause (viii) in any fiscal year does not exceed 50% of
Consolidated Net Income of Allied Waste for the immediately preceding
fiscal year; and (ix) Allied Waste may redeem Permitted Cure
Securities, if any, in accordance with the terms thereof with the
proceeds of an issuance of common stock or preferred stock that is not
a Prepayment Event, provided that such stock so issued is (x) Non-Cash
Pay and (y) subordinate to the Loans at least to the same extent that
such Permitted Cure Securities are subordinate to the Loans.
(b) Allied Waste will not, nor will it permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (1) pay any dividends or make any other
distributions on its capital stock or any other ownership interest or (2) make
or repay any loans or advances to the Borrower or the parent of such Subsidiary,
except for:
(x) existing restrictions under the Indebtedness set forth in
Schedule 6.01;
(y) existing restrictions under the AWNA Senior Note Indenture
and restrictions in the Subordinated Debt Documents, or agreements
governing Permitted Subordinated Debt, but only to the extent that any
of the foregoing limit the payment of dividends by the Borrower or its
Subsidiaries to Allied Waste; and
(z) restrictions pursuant to any agreement entered into by any
member of the Allied Group in connection with an Asset Sale for the
period beginning with the date such agreement is entered into through
the date that such Asset Sale is consummated; provided that (A) such
restrictions only restrict dividends to be paid by any Subsidiary of
Allied Waste in respect of the capital stock or assets that are being
sold pursuant to such Asset Sale and (B) such Asset Sale is permitted
hereunder.
SECTION 6.09A. Transactions with Affiliates. (a) Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates (other than as provided in (b) below), except:
(i) subject to the provisions of Section 6.08A, between or
among Allied Waste, the Borrower or any Subsidiary Loan Parties; or
(ii) that any member of the Allied Group may engage in any of
the foregoing transactions, including the payment of financial
advisory, financing, underwriting or placement fees or other investment
banking fees, in the ordinary course of business at prices and on terms
and conditions not less favorable to the members of the Allied Group
than could be obtained on an arm's-length basis from unrelated third
parties.
(b) Allied Waste will not, nor will it cause or permit any of
its Subsidiaries to, make any payment of or on account of monitoring or
management fees payable to the Sponsors or their Affiliates unless on the date
of such payment no Senior Default or Senior Event of Default has occurred and is
continuing or would result therefrom.
(c) The foregoing paragraph (a) shall not prohibit, to the
extent otherwise permitted under this Agreement, (i) any issuance of securities
of Allied Waste, or other payments, awards or grants in cash, securities of
Allied Waste or other property pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors of Allied Waste, (ii) loans or advances to employees of Allied Waste,
the Borrower or any Subsidiary in accordance with Section 6.05A(e) and (f),
(iii) the payment of fees and indemnitees to directors, officers and employees
of Allied Waste, the Borrower and the Subsidiaries in the ordinary course of
business, (iv) transactions pursuant to Hedging Agreements permitted by Section
6.07A, (v) any employment agreements entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business, and (vi) any
purchase by the Sponsors of capital stock of Allied Waste or any purchase by
Allied Waste of capital stock or other equity securities of any Restricted
Subsidiaries or any contribution by Allied Waste to the equity capital of the
Borrower.
SECTION 6.10A. Business of Allied Waste, Borrower and
Subsidiaries. Allied Waste will not, nor will it cause or permit any of its
Restricted Subsidiaries to:
(a) Engage at any time, (i) in the case of the Borrower and
each of the Restricted Subsidiaries (other than the Insurance
Subsidiaries) in any business or business activity other than the
business currently conducted by them and business activities reasonably
incidental thereto and (ii) in the case of Allied Waste, in any
business or business activity other than the direct ownership of all
the outstanding stock of the Borrower or of any Unrestricted
Subsidiaries and all activities reasonably incidental thereto.
(b) Enter into any general partnership arrangement or become a
general partner of a limited partnership arrangement other than through
a special purpose wholly owned Subsidiary; provided that any
Investments associated with such general partnership shall be permitted
hereunder.
In addition, none of the Loan Parties will permit the
Insurance Subsidiaries to engage to any substantial extent in any line or lines
of business or business activity other than the business currently conducted by
such Insurance Subsidiaries and business activities reasonably incidental
thereto.
SECTION 6.11A. Other Indebtedness and Agreements. The Borrower
will not, nor will it cause or permit any of the Restricted Subsidiaries to:
(a) Permit any waiver, supplement, modification, amendment,
termination or release of (i) any Material Agreement or (ii) any
indenture, instrument or agreement pursuant to which any Indebtedness
or Preferred Stock of any member of the Allied Group is outstanding in
an aggregate outstanding principal amount in excess of $50,000,000, or
modify its charter or by-laws, in each case to the extent that any such
waiver, supplement, modification, amendment, termination or release
would be adverse to the Senior Lenders in any material respect.
(b) Make any distribution, whether in cash, property,
securities or a combination thereof, other than scheduled payments and
mandatory prepayments of principal and interest as and when due (to the
extent not prohibited by applicable subordination provisions), in
respect of, or pay, or offer or commit to pay, or directly or
indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, (i) any
Junior Indebtedness, or (ii) any other Indebtedness for borrowed money
(except for the Senior Obligations and intercompany Indebtedness
permitted hereby) other than (x) in a cumulative amount not greater
than 25% of the cumulative amount of Excess Cash Flow for each year,
commencing with the fiscal year ended December 31, 2000, (y)
refinancings permitted by Section 6.01A(xiii) and (z) refinancings of
Tranche D Loans with the proceeds from the issuance of Senior
Subordinated Notes or other Permitted Subordinated Debt.
(c) Make any payment or prepayment of any Indebtedness that
would violate the terms of this Agreement or of such Indebtedness, any
agreement or document evidencing, related to or securing the payment or
performance of such Indebtedness or any subordination agreement or
provision applicable to such Indebtedness.
SECTION 6.12A. Amendment of Material Documents. Without the
consent of the Required Senior Lenders, neither Allied Waste nor the Borrower
will, nor will they permit any Restricted Subsidiary to, amend, modify or waive
any of its rights under (a) any Subordinated Debt Document, the AWNA Senior Debt
Indenture or the BFI Indenture, (b) its certificate of incorporation, by-laws or
other organizational documents or (c) the Merger Documents in any such case, in
a manner which could, individually or in the aggregate, reasonably be expected
to (i) have a Material Adverse Effect on the Loan Parties' ability to perform
their obligations hereunder or under the Loan Documents, or (ii) materially
impair the Lenders' rights or benefits hereunder or under the Loan Documents.
SECTION 6.13A. Interest Coverage Ratio. Allied Waste and the
Borrower will not permit the Interest Coverage Ratio as of the last day of any
fiscal quarter ending during any period set forth below to be less than the
ratio set forth below opposite such period:
Period Minimum Ratio
December 31, 1999 to September 30, 2000 1.75 to 1.00
December 31, 2000 to September 30, 2001 2.25 to 1.00
December 31, 2001 to September 30, 2002 2.50 to 1.00
December 31, 2002 to September 30, 2003 2.75 to 1.00
December 31, 2003 and thereafter 3.00 to 1.00
SECTION 6.14A. Leverage Ratio. Allied Waste and the Borrower
will not permit the Leverage Ratio as of the last day of any fiscal quarter
ending during any period set forth below to be more than the ratio set forth
opposite such period:
Period Maximum Ratio
December 31, 1999 to September 30, 2000 6.25 to 1.00
December 31, 2000 to September 30, 2001 5.50 to 1.00
December 31, 2001 to September 30, 2002 4.50 to 1.00
December 31, 2002 to September 30, 2003 4.00 to 1.00
December 31, 2003 and thereafter 3.50 to 1.00
SECTION 6.15A. Capital Expenditure. (a) Allied Waste and the
Borrower will not, and will not permit any of the Subsidiaries to, make any
Capital Expenditures that would cause the aggregate amount of such Capital
Expenditures made by Allied Waste, the Borrower and the Subsidiaries in any
fiscal year set forth below to exceed (a) for the fiscal year ending December
31, 1999, $800,000,000; and (b) for any fiscal year ending after December 31,
1999, the sum of (i) Capital Expenditures permitted by this Section 6.15A for
the prior fiscal year plus (ii) 25% of the gross revenues of Acquired Businesses
acquired during the then-current fiscal year.
(b) Notwithstanding the foregoing, the Borrower may in any
fiscal year, upon written notice to the Administrative Agent, increase the
amount of Capital Expenditures permitted to be made during such fiscal year
pursuant to this Section 6.15A by an amount equal to the lesser of (i) the total
unused amount of Capital Expenditures permitted to be made pursuant to this
Section 6.15A for the immediately preceding fiscal year (minus the amount of any
unused Capital Expenditures permitted to be made pursuant to this Section 6.15A
that were carried forward to such preceding fiscal year pursuant to this
paragraph (b)) and (ii) 50% of the amount of Capital Expenditures permitted to
be made pursuant to this Section 6.15A for the immediately preceding fiscal year
(minus the amount of any unused Capital Expenditures permitted to be made
pursuant to this Section 6.15A that were carried forward to such preceding
fiscal year pursuant to this paragraph (b)).
SECTION 6.16A. Designation of Unrestricted Subsidiaries. The
Borrower will not designate any Subsidiary (other than a newly created
Subsidiary in which no investment has previously been made) as an "Unrestricted
Subsidiary") under this agreement (a "Designation") unless:
(i) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) the Borrower has delivered to the Agent (x) written notice of
such Designation and (y) a certificate, dated the effective
date of such Designation, of an Executive Officer stating that
no Event of Default has occurred and is continuing and setting
forth reasonably detailed calculations demonstrating pro forma
compliance with Section 6.13A and Section 6.14A in accordance
with paragraph (ii) above; and
(iii) such Subsidiary has not Guaranteed (after giving effect to
such Designation) any Indebtedness of Allied Waste or any
other Restricted Subsidiary.
Neither the Borrower nor any Restricted Subsidiary shall at any time (x) provide
a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be directly
or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z)
be directly or indirectly liable for any other Indebtedness which provides that
the holder thereof may (upon notice, lapse of time or both) declare a default
thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary, except in the case of clause (x) or
(y) to the extent permitted under Section 6.01A and Section 6.05A hereof. Each
Designation shall be irrevocable, and no Unrestricted Subsidiary may become a
Restricted Subsidiary, be merged with or into the Company or a Restricted
Subsidiary or liquidate into or transfer substantially all its assets to the
Company or a Restricted Subsidiary.
ARTICLE VI-B
Tranche D Negative Covenants
Until the Tranche D Commitments have expired or terminated and
the principal of and interest on each Tranche D Loan and all fees payable to the
Tranche D Lenders hereunder have been paid in full, each of Allied Waste, the
Borrower covenants and agrees with the Tranche D Lenders that:
SECTION 6.01B. Indebtedness; Certain Equity Securities. (a)
Allied Waste and the Borrower will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) the Senior Subordinated Notes outstanding on the
Effective Date in an aggregate principal amount not to exceed
$2,500,000,000 and Permitted Subordinated Debt (including Senior
Subordinated Notes and Exchange Notes) issued after the Effective Date
to refinance (and in a principal amount not in excess of the principal
amount of) the Tranche D Loans outstanding as of the Effective Date;
(iii) Indebtedness (including Guarantees) existing on the date
hereof and set forth in Schedule 6.01A;
(iv) Hedging Agreements permitted pursuant to Section 6.07B;
(v) Acquired Indebtedness of a Restricted Subsidiary acquired
after the date hereof and Acquired Indebtedness of a corporation merged
or consolidated with or into the Borrower or a Restricted Subsidiary
after the date hereof, which Indebtedness in each case exists at the
time of such acquisition, merger, consolidation or conversion into a
Restricted Subsidiary and is not created in contemplation of such event
and where such acquisition, merger or consolidation is permitted by
this Agreement; provided that the Borrower and the Restricted
Subsidiaries comply with the provisions of Section 5.18B with respect
to any such acquired or newly formed Restricted Subsidiary;
(vi) unsecured Indebtedness of Allied Waste, the Borrower or
any Restricted Subsidiary that is issued to a seller of an Acquired
Business and incurred in connection with a Permitted Acquisition;
(vii) unsecured Guarantees in respect of (x) Indebtedness
permitted pursuant to subparagraphs (ii), (v), (vi), (xiii), and (xv)
of this Section 6.01B, and (y) Indebtedness of Ref-Fuel; provided that
such Guarantees pursuant to this clause (vii)(y) are required to be
provided pursuant to contractual obligations existing on the date
hereof; provided that any Guarantees in respect of Indebtedness that is
subordinated to any of the Tranche D Obligations or to Guarantees of
the Tranche D Obligations shall also be subordinated to the Guarantees
in favor of the Tranche D Lenders under the Loan Documents or to the
Tranche D Obligations, as the case may be, to the same extent as such
Indebtedness is subordinated to any of the Tranche D Obligations;
(viii) Indebtedness of the Borrower or any Subsidiary Loan
Party to any other Subsidiary or the Borrower, so long as such
Indebtedness is subordinated to all Senior Obligations and all Tranche
D Obligations;
(ix) subordinated Indebtedness (i) of Allied Waste to the
Borrower or any wholly owned Subsidiary, so long as the proceeds of
such Indebtedness are used by Allied Waste solely for purposes
permitted under Section 6.10B, or (ii) of the Borrower or any wholly
owned Restricted Subsidiary to Allied Waste;
(x) Indebtedness of the Borrower and Allied Waste under the
Allied Guarantee;
(xi) Indebtedness (including tax exempt financings and Capital
Lease Obligations) of the Borrower or the Restricted Subsidiaries
incurred after the Effective Date to finance Capital Expenditures
permitted under Section 6.15B; provided that (A) such Indebtedness is
incurred prior to or within 120 days after the acquisition, completion
of construction, refurbishment or improvement of the fixed or capital
assets being financed and does not exceed 100% of the cost thereof and
(B) the aggregate principal amount of (1) any Indebtedness incurred
pursuant to this paragraph (xi) and (2) Capital Lease Obligations
pursuant to Section 6.04B outstanding at any time shall not exceed the
greater of (I) $700,000,000 and (II) an amount equal to 5% of
Consolidated Total Assets;
(xii) Indebtedness incurred pursuant to any sale and leaseback
transaction permitted by Section 6.04B;
(xiii) extensions, renewals or refinancings of Indebtedness
under paragraphs (iii) and (v) so long as (1) such Refinancing
Indebtedness is in an original aggregate principal amount not greater
than the aggregate principal amount of, and unpaid interest on, the
Indebtedness being extended, renewed or refinanced plus the amount of
any premiums required to be paid thereon and fees and expenses
associated therewith, (2) such Refinancing Indebtedness has a later or
equal final maturity and a longer or equal weighted average life than
the Indebtedness being extended, renewed or refinanced, (3) the
interest rate applicable to such Refinancing Indebtedness shall be a
market interest rate (as determined in good faith by the Board of
Directors of the Borrower) as of the time of such extension, renewal or
refinancing, (4) if the Indebtedness being extended, renewed or
refinanced is subordinated to the Tranche D Obligations, such
Refinancing Indebtedness is subordinated to the Tranche D Obligations,
(5) the covenants, events of default and any Guarantees thereof, taken
as a whole, shall be determined in good faith by the board of directors
of the Borrower to be no less favorable to the Tranche D Lenders than
those contained in the Indebtedness being refinanced and (6) at the
time and after giving effect to such renewal or refinancing, no Tranche
D Event of Default shall have occurred and be continuing;
(xiv) Indebtedness consisting of reimbursement obligations
under surety, indemnity, performance, release and appeal bonds and
guarantees thereof, in each case securing obligations not constituting
Indebtedness for borrowed money and obtained in the ordinary course of
business;
(xv) Indebtedness of Foreign Subsidiaries, Insurance
Subsidiaries, and other Restricted Subsidiaries that are not Subsidiary
Loan Parties incurred after the Effective Date in an aggregate
principal amount outstanding at any time not exceeding the greater of
(1) $280,000,000 and (2) 2% of Consolidated Total Assets;
(xvi) unsecured Indebtedness of the Borrower or Allied Waste
in addition to that permitted by paragraphs (i) through (xv) above;
provided that such Indebtedness has a longer or equal weighted average
life than the Tranche D Loans hereunder, such Indebtedness is permitted
pursuant to Section 6.14A and 100% of the Net Available Proceeds of
such Indebtedness are utilized to prepay Term Loans in accordance with
Section 2.11(c);
(xvii) contingent liabilities arising out of endorsements of
checks and other negotiable instruments for deposit or collection in
the ordinary course of business; and
(xviii) other Indebtedness of Allied Waste, the Borrower and
the Restricted Subsidiaries in an aggregate principal amount
outstanding at any time not exceeding the greater of (1) $420,000,000
and (2) 3% of Consolidated Total Assets; and
(xix) all premiums (if any), interest (including post-petition
interest and other than capitalized interest), fees, expenses,
indemnities, charges and additional or contingent interest on
obligations described in clauses (i) through (xviii) above.
(b) Neither Allied Waste nor the Borrower will, nor
will they permit any Restricted Subsidiary to, issue any Preferred
Stock or other preferred Equity Interests, other than the Sponsor
Preferred Stock and other Non-Cash Pay Preferred Stock of Allied Waste
or the Borrower unless the Net Available Proceeds thereof are applied
in the manner and to the extent required under Section 2.11(c).
SECTION 6.02B. Liens. Neither Allied Waste nor the Borrower
will, nor will it cause or permit any of the Restricted Subsidiaries to, create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any Person, including any Subsidiary of Allied
Waste) now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except:
(a) Liens on properties or assets of members of the Allied
Group existing on the date hereof and set forth in Schedule 6.02
(excluding, however, following the making of the initial extensions of
credit hereunder, the Indebtedness to be repaid with the proceeds of
such Loans, as indicated on Schedule 6.02); provided that such Liens
shall secure only those obligations (and extensions, renewals and
refinancings thereof permitted hereby) which they secure on the date
hereof;
(b) Liens created under the Loan Documents;
(c) Permitted Encumbrances;
(d) purchase money security interests in real property,
improvements thereto, equipment or other fixed assets hereafter
acquired (or, in the case of improvements, equipment or other fixed
assets, constructed or refurbished) by the Borrower or any Subsidiary
(including such security interests arising out of Capital Lease
Obligations); provided, that (i) such security interests secure
Indebtedness permitted by Section 6.01B(xi), (ii) such security
interests are incurred, and the Indebtedness secured thereby is
created, within 120 days after such acquisition (or completion of such
construction), (iii) the Indebtedness secured thereby does not exceed
100% of the cost of such real property, improvements or equipment at
the time of such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of the Borrower
or any Restricted Subsidiary (other than the proceeds of the real
property, improvements, equipment or other fixed assets subject to the
Lien);
(e) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02B, provided, that such Lien does not
apply to any additional property or assets of Allied Waste, the
Borrower or any Subsidiary (other than additions to and the proceeds of
the property or asset subject to the Lien);
(f) any Lien on the property or assets of an Acquired Business
(other than on the stock or Equity Interests of a Subsidiary) securing
Indebtedness permitted by Section 6.01B(v); provided that such Lien
existed at the time of and was not created in contemplation of the
acquisition of such Acquired Business;
(g) Liens arising from Uniform Commercial Code financing
statements and similar documents filed on a precautionary basis in
respect of operating leases intended by the parties to be true leases
(other than any such leases entered into in violation of this
Agreement);
(h) any Lien on the property or assets of any Foreign
Subsidiary, Insurance Subsidiary or other Restricted Subsidiary that is
not a Loan Party Subsidiary securing Indebtedness permitted by Section
6.01B(xv);
(i) additional Liens on property (but not on the capital stock
or other ownership interests of any Subsidiary owned by the Borrower,
Allied Waste or any Subsidiary Loan Party) to secure Indebtedness
(including, without limitation, Capital Lease Obligations in addition
to those permitted by paragraph (d) of this Section 6.02B) so long as
neither the outstanding aggregate principal amount of such Indebtedness
nor the aggregate book value of assets subject to such Liens at any
time exceeds the greater of (1) $420,000,000 and (2) 3% of Consolidated
Total Assets; and
(j) any Lien arising pursuant to Environmental Law for costs
or damages which are not yet due (by virtue of a written demand for
payment by a Governmental Authority) or which are being contested in
compliance with the standard set forth in Section 5.08B(a), or on
property that the Borrower or a Subsidiary has determined to abandon if
the sole recourse for such costs or damages is to such property;
provided that the liability of the Borrower and the Subsidiaries with
respect to the matters giving rise to all such Liens shall not, in the
reasonable estimate of the Borrower (in light of all attendant
circumstances, including the likelihood of contribution by third
parties), exceed the greater of (i) $280,000,000 or (ii) 2% of
Consolidated Total Assets.
SECTION 6.03B. No Other Negative Pledge. Allied Waste will
not, nor will it cause or permit any of its Restricted Subsidiaries to, enter
into any agreement prohibiting or conditioning (including pursuant to any pari
passu security requirement) the creation or assumption of any Lien upon any of
its property or assets other than:
(i) in favor of the Senior Lenders, the Issuing Banks or the
Secured Parties;
(ii) in favor of the holders of Tranche D Term Loans, Exchange
Notes or Permitted Subordinated Debt; provided that such agreement does
not so restrict Liens securing the Senior Obligations;
(iii) in connection with Indebtedness that may be secured by a
Lien or in connection with obligations secured by Permitted
Encumbrances in compliance with Section 6.02B(a), (d), (e), (f), (g),
(h) or (i); provided that such prohibition or condition does not apply
to any property or assets now or hereafter in existence not subject to
such Lien;
(iv) in connection with any lease permitted under Section
6.04B solely to the extent that such lease prohibits a Lien on the
lease or the property subject to such lease; or
(v) pursuant to any agreement entered into by any member of
the Allied Group in connection with an Asset Sale for the period
beginning with the date such agreement is entered into through the date
such Asset Sale is consummated; provided that (x) such negative pledge
shall only relate to the property being sold pursuant to such Asset
Sale and (y) such Asset Sale is permitted hereunder.
SECTION 6.04B. Sale and Lease-Back Transactions. Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
enter into any arrangement, directly or indirectly, with any Person whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred; provided
that (i) the Borrower or any Restricted Subsidiary may enter into any such
transaction with respect to any lease that is required to be capitalized in
accordance with GAAP and is in compliance with Section 6.02B(d) or (i) and (ii)
the aggregate principal amount of (1) Capital Lease Obligations associated
therewith and (2) any Indebtedness incurred pursuant to Section 6.01B(xi) at any
time outstanding does not exceed the greater of (A) $700,000,000 and (B) 5% of
Consolidated Total Assets.
SECTION 6.05B. Investments, Loans, Guarantees and
Acquisitions. Allied Waste will not, and will not permit any of its Restricted
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Restricted Subsidiary prior to such
merger) any Investment in any other Person, or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Investments by Allied Waste and the Borrower (i) existing
on the date hereof and (ii) made after the date hereof in the capital
stock or other ownership interests of the Borrower and entities that,
prior to and after such investments, are Loan Parties; loans or
advances by the Borrower or any Loan Party to the Borrower or any Loan
Party; and loans or advances by the Borrower or any Loan Party to
Allied Waste or by Allied Waste to the Borrower or any Loan Party;
provided that in any event no Loan Party shall make any Investments in,
or loans or advances to any Insurance Subsidiary, any Foreign
Subsidiary, any Restricted Subsidiary that is not a Loan party or any
Unrestricted Subsidiary after the date hereof (other than in accordance
with clause (i) below);
(b) the Merger;
(c) Permitted Investments;
(d) Investments by the members of the Allied Group existing on
the date hereof and set forth in Schedule 6.05;
(e) loans and advances to employees of members of the Allied
Group (including for travel, entertainment and relocation expenses) in
the ordinary course of their business;
(f) loans by members of the Allied Group to their employees in
connection with management incentive plans not to exceed $25,000,000 at
any time outstanding; provided that such limitation shall not apply to
loans the proceeds of which are used to purchase common stock of Allied
Waste;
(g) guarantees not constituting Indebtedness by Allied Waste
or any Restricted Subsidiary of any contractual obligation (not
Indebtedness) of the Borrower or any Loan Party;
(h) Investments in the capital stock or other ownership
interests of any Specified Subsidiary newly organized after the date
hereof, provided that Allied Waste, the Borrower and such Subsidiary
comply with the applicable provisions of Section 5.18B with respect to
such newly formed Subsidiary;
(i) other Investments made after the Effective Date in an
aggregate amount at any time outstanding not to exceed the greater of
(x) $420,000,000 and (y) 3% of Consolidated Total Assets;
(j) extensions of trade credit in the ordinary course of
business in an aggregate amount not at any time exceeding $25,000,000;
(k) receivables owing to members of the Allied Group that
arise in the ordinary course of business and are payable or
dischargeable in accordance with customary trade terms;
(l) Permitted Acquisitions and other transactions permitted by
6.06B;
(m) investments in or acquisitions of landfills, collection
centers or other producing assets located in the United States pursuant
to contemporaneous exchanges of similar assets with any other Person;
provided that any portion of assets acquired for consideration other
than any such exchange shall be deemed a Capital Expenditure and be
subjected to the limitations of Section 6.15B;
(n) any Investment consisting of a Hedging Agreement permitted
by Section 6.07B;
(o) any Investment acquired by any of the Loan Parties (A) in
exchange for any other Investment or accounts receivable held by such
Loan Party as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable; (B) as a result of a foreclosure by such Loan Party or
other transfer of title with respect to any secured Investment in
default or (C) in connection with the acquisition of an Acquired
Business permitted hereunder which was an Investment of such Acquired
Business existing prior to the date of such acquisition and not made in
contemplation thereof; and
(p) Investments in Ref-Fuel and Guarantees of Indebtedness of
Ref-Fuel required to be provided pursuant to contractual obligations
existing on the date hereof by any Loan Party.
SECTION 6.06B. Mergers, Consolidations, Sales of Assets and
Acquisitions. Neither Allied Waste nor the Borrower will, nor will it cause or
permit any of its Restricted Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or conduct any Asset Sale of (in one transaction or in a series of transactions)
all or any substantial part of its assets (whether now owned or hereafter
acquired), or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
Person, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Tranche D Event of Default or Tranche D Default shall have
occurred and be continuing (i) any wholly owned subsidiary (other than
an Insurance Subsidiary) of Allied Waste may merge into the Borrower in
a transaction in which the Borrower is the surviving corporation; and
(ii) any Restricted Subsidiary of Allied Waste may merge into or
consolidate with any other Restricted Subsidiary of Allied Waste in a
transaction in which the surviving entity is a wholly owned Subsidiary
of Allied Waste and no Person other than the Borrower or a wholly owned
Subsidiary of Allied Waste receives any consideration. In connection
with one or more Permitted Acquisitions, the Borrower or any of its
Restricted Subsidiaries may merge with or into another Person;
(b) any Restricted Subsidiary of Allied Waste (other than the
Borrower) may change the jurisdiction of any Domestic Subsidiary in
which it is incorporated so long as the new jurisdiction is in the
United States;
(c) the Borrower or any of the Loan Parties (other than
Insurance Subsidiaries) may make Permitted Acquisitions and Investments
permitted by Section 6.05B(a), (h), (i) and (p);
(d) the Borrower or any of its Restricted Subsidiaries may
conduct the Asset Sales set forth on Schedule 5.20 hereto and other
Asset Sales of a type not described in Section 5.17B, provided that the
Net Available Proceeds of each such Asset Sale shall be applied in the
manner set forth in Section 2.11;
(e) the Borrower and its Restricted Subsidiaries may effect
asset swaps permitted by Section 6.05B(m); and
(f) Allied Waste may make Asset Sales to any of the Loan
Parties and any Loan Party may make Assets Sales to Allied Waste or to
another Loan Party.
SECTION 6.07B. Hedging Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.16B (b)
Hedging Agreements with respect to AWNA Senior Notes and BFI Indenture Debt, (c)
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Allied Waste or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities and (d) Hedging Agreements
existing on the Effective Date.
SECTION 6.08B. Restricted Payments; Certain Payments of
Indebtedness. (a) Allied Waste will not, nor will it permit any of its
Restricted Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) Allied Waste may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its capital
stock, (ii) Restricted Subsidiaries of the Borrower may declare and pay
dividends ratably with respect to their capital stock, (iii) Allied Waste may
make Restricted Payments, not exceeding an aggregate amount of $25,000,000
during any fiscal year, pursuant to and in accordance with the stock option
plans or other benefit plans or in connection with incentive or compensation
arrangements for current or former management or employees of the Borrower and
its Restricted Subsidiaries, (iv) the Borrower or any Restricted Subsidiary may
declare and make dividend payments to Allied Waste solely to the extent
necessary for Allied Waste to pay for taxes and to pay administrative expenses
to conduct its business in accordance with Sections 5.01B(b) and 6.10B, (v)
Allied Waste may declare and pay dividends in respect of the Sponsor Preferred
Stock payable solely in additional shares of Sponsor Preferred Stock (or other
capital stock, as provided therein) and (vi) Allied Waste and its Restricted
Subsidiaries may make Restricted Payments to the extent required by the terms of
its joint venture or similar agreements in effect on the date hereof and listed
on Schedule 6.08A; provided that immediately prior, and after giving effect to,
such Restricted Payment, no Senior Event of Default shall have occurred and be
continuing.
(b) Allied Waste will not nor will it permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (1) pay any dividends or make any other
distributions on its capital stock or any other ownership interest or (2) make
or repay any loans or advances to the Borrower or the parent of such Subsidiary,
except for:
(x) existing restrictions under the Indebtedness set forth in
Schedule 6.01;
(y) existing restrictions under the AWNA Senior Note Indenture
and restrictions in the Senior Subordinated Note Documents, or
agreements governing Permitted Subordinated Debt, but only to the
extent that any of the foregoing limit the payment of dividends by the
Borrower or its Subsidiaries to Allied Waste; and
(z) restrictions pursuant to any agreement entered into by any
member of the Allied Group in connection with an Asset Sale for the
period beginning with the date such agreement is entered into through
the date that such Asset Sale is consummated; provided that (A) such
restrictions only restrict dividends to be paid by any Subsidiary of
Allied Waste in respect of the capital stock or assets that are being
sold pursuant to such Asset Sale and (B) such Asset Sale is permitted
hereunder.
SECTION 6.09B. Transactions with Affiliates. (a) Allied Waste
will not, nor will it cause or permit any of its Restricted Subsidiaries to,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates (other than as provided in (b) below), except:
(i) subject to the provisions of Section 6.08B, between or
among Allied Waste, the Borrower or any Subsidiary Loan Parties; or
(ii) that any member of the Allied Group may engage in any of
the foregoing transactions, including the payment of financial
advisory, financing, underwriting or placement fees or other investment
banking fees, in the ordinary course of business at prices and on terms
and conditions not less favorable to the members of the Allied Group
than could be obtained on an arm's-length basis from unrelated third
parties.
(b) Allied Waste will not, nor will it cause or permit any of
its Subsidiaries to, make any payment of or on account of monitoring or
management fees payable to the Sponsors or their Affiliates unless on the date
of such payment no Tranche D Default or Tranche D Event of Default has occurred
and is continuing or would result therefrom.
(c) The foregoing paragraph (a) shall not prohibit, to the
extent otherwise permitted under this Agreement, (i) any issuance of securities
of Allied Waste, or other payments, awards or grants in cash, securities of
Allied Waste or other property pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors of Allied Waste, (ii) loans or advances to employees of Allied Waste,
the Borrower or any Subsidiary in accordance with Section 6.05B(e) and (f),
(iii) the payment of fees and indemnitees to directors, officers and employees
of Allied Waste, the Borrower and the Subsidiaries in the ordinary course of
business, (iv) transactions pursuant to Hedging Agreements permitted by Section
6.07B, (v) any employment agreements entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business, and (vi) any
purchase by the Sponsors of capital stock of Allied Waste or any purchase by
Allied Waste of capital stock of any Subsidiaries or any contribution by Allied
Waste to the equity capital of the Borrower.
SECTION 6.10B. Business of Allied Waste, Borrower and
Subsidiaries. Allied Waste will not, nor will it cause or permit any of its
Restricted Subsidiaries to:
(a) Engage at any time, (i) in the case of the Borrower and
each of the Restricted Subsidiaries (other than the Insurance
Subsidiaries) in any business or business activity other than the
business currently conducted by them and business activities reasonably
incidental thereto and (ii) in the case of Allied Waste, in any
business or business activity other than the direct ownership of all
the outstanding stock of the Borrower or any Unrestricted Subsidiaries
and all activities reasonably incidental thereto.
(b) Enter into any general partnership arrangement other than
through a special purpose wholly owned Subsidiary; provided that any
Investments associated with such general partnership shall be permitted
hereunder.
In addition, none of the Loan Parties will permit the
Insurance Subsidiaries to engage to any substantial extent in any line or lines
of business or business activity other than the business currently conducted by
such Insurance Subsidiaries and business activities reasonably incidental
thereto.
SECTION 6.11B. Other Indebtedness and Agreements. The
Borrower will not, nor will it cause or permit any of the Restricted
Subsidiaries to:
(a) Make any distribution, whether in cash, property,
securities or a combination thereof, other than scheduled payments and
mandatory prepayments of principal and interest as and when due (to the
extent not prohibited by applicable subordination provisions), in
respect of, or pay, or offer or commit to pay, or directly or
indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, (i) any
Junior Indebtedness, or (ii) any other Indebtedness for borrowed money
(except for the Senior Obligations and intercompany Indebtedness
permitted hereby) other than (x) in a cumulative amount not greater
than 25% of the cumulative amount of Excess Cash Flow for each year,
commencing with the fiscal year ended December 31, 2000, (y)
refinancings permitted by Section 6.01B(xiii) and (z) refinancings of
Tranche D Loans and Exchange Notes with the proceeds from the issuance
of Senior Subordinated Notes or other Permitted Subordinated Debt.
(b) Make any payment or prepayment of any Indebtedness that
would violate the terms of this Agreement or of such Indebtedness, any
agreement or document evidencing, related to or securing the payment or
performance of such Indebtedness or any subordination agreement or
provision applicable to such Indebtedness.
SECTION 6.12B. Designation of Unrestricted Subsidiaries.
The Borrower will not make a Designation unless:
(i) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) the Borrower has delivered to the Agent (x) written notice of
such Designation and (y) a certificate, dated the effective
date of such Designation, of an Executive Officer stating that
no Event of Default has occurred and is continuing and setting
forth reasonably detailed calculations demonstrating pro forma
compliance with Section 6.13A and Section 6.14A in accordance
with paragraph (ii) above; and
(iii) such Subsidiary has not Guaranteed (after giving effect to
such Designation) any Indebtedness of Allied Waste or any
other Restricted Subsidiary.
Neither the Borrower nor any Restricted Subsidiary shall at any time (x) provide
a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be directly
or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z)
be directly or indirectly liable for any other Indebtedness which provides that
the holder thereof may (upon notice, lapse of time or both) declare a default
thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary, except in the case of clause (x) or
(y) to the extent permitted under Section 6.01B and Section 6.05B hereof. Each
Designation shall be irrevocable, and no Unrestricted Subsidiary may become a
Restricted Subsidiary, be merged with or into the Company or a Restricted
Subsidiary or liquidate into or transfer substantially all its assets to the
Company or a Restricted Subsidiary.
SECTION 6.13B. Asset Disposition. (a) The Borrower will not,
and will not permit any Restricted Subsidiary to, make any Asset Disposition
unless: (i) in the case of any sale, transfer or other disposition of assets or
stock with a fair market value in excess of 2% of Consolidated Total Assets, (A)
such sale, transfer or other disposition is for consideration at least 75% of
which is (u) cash or readily marketable cash equivalents, (v) the assumption of
indebtedness or other liabilities reflected on the Consolidated balance sheet of
the Borrower and its Restricted Subsidiaries in accordance with GAAP (excluding
Indebtedness or any other liabilities subordinate in right of payment to the
Term Loans) and release from all liability on such Indebtedness or other
liabilities assumed, (w) assets used in, or stock or other ownership interests
in a Person that upon the consummation of such Asset Disposition becomes a
Restricted Subsidiary and will be principally engaged in the business of the
Borrower or any of its Restricted Subsidiaries as such business is conducted
immediately prior to such Asset Disposition, (x) any securities, notes or other
obligations received by the Borrower or any such Restricted Subsidiary from such
transferee that are contemporaneously (subject to ordinary settlement periods)
converted by the Borrower or such Restricted Subsidiary into cash or Cash
Equivalents (to the extent of cash and Cash Equivalents received), (y) any
Designated Noncash Consideration received pursuant to this clause (y) that is at
the time outstanding, not to exceed 15% of Consolidated Total Assets at the time
of the receipt of such Designated Noncash Consideration (with the fair market
value of each item of Designated Noncash Consideration being measured at the
time received and without giving effect to subsequent changes in value), or (z)
any combination thereof; and (B) such consideration is at least equal to the
fair market value of the assets, transferred or disposed of (as determined in
good faith by the Board of Directors or officers of the Borrower); and (ii) 100%
of the Net Available Proceeds from such Asset Disposition (including from the
sale of any marketable Cash Equivalent received therein) are applied by the
Borrower or a Restricted Subsidiary (A) first, within one year from the later of
the date of such Asset Disposition or the receipt of such Net Available
Proceeds, to Indebtedness of the Borrower or its Restricted Subsidiaries then
outstanding under any Senior Indebtedness which would require such application
or which would prohibit payments pursuant to Clause (B) following; (B) second,
to the extent Net Available Proceeds are not required to be applied as specified
in Clause (A), to repay the Tranche D Term Loans (to the extent such repayment
is not prohibited by the terms of any Senior Indebtedness then in effect).
(b) Notwithstanding the foregoing, the Borrower shall not be
required to comply with the provisions described in Clause (ii) of the preceding
paragraph if the Net Available Proceeds are invested or committed to be invested
within one year from the later of the date of the related Asset Disposition or
the receipt of such Net Available Proceeds in assets that will be used in the
business of the Borrower or any of its Restricted Subsidiaries as such business
is conducted prior to such Asset Disposition (determined by the Borrower's board
of directors in good faith).
SECTION 6.14B. Limitation on Senior Subordinated Indebtedness.
Other than Acquired Indebtedness incurred in accordance with Section 6.01A(v),
the Borrower will not incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Indebtedness of the Borrower and senior in any respect in right
of payment to the Tranche D Loans. Other than acquired Guarantees of Acquired
Indebtedness incurred in accordance with Section 6.01A(v), no Guarantor will
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to the
Indebtedness of such Guarantor and senior in any respect in right of payment to
such Guarantor's obligations under the Subordinated Parent Guarantee Agreement
or Subordinated Subsidiary Guarantee Agreement, as the case may be.
SECTION 6.15B. Capital Expenditure. (a) Allied Waste and the
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
make any Capital Expenditures that would cause the aggregate amount of such
Capital Expenditures made by Allied Waste, the Borrower and the Restricted
Subsidiaries in any fiscal year set forth below to exceed (a) for the fiscal
year ending December 31, 1999, $800,000,000; and (b) for any fiscal year ending
after December 31, 1999, the sum of (i) Capital Expenditures permitted by this
Section 6.15B for the prior fiscal year plus (ii) 25% of the gross revenues of
Acquired Businesses acquired during the then-current fiscal year.
(b) Notwithstanding the foregoing, the Borrower may in any
fiscal year, upon written notice to the Administrative Agent, increase the
amount of Capital Expenditures permitted to be made during such fiscal year
pursuant to this Section 6.15B by an amount equal to the lesser of (i) the total
unused amount of Capital Expenditures permitted to be made pursuant to this
Section 6.15B for the immediately preceding fiscal year (minus the amount of any
unused Capital Expenditures permitted to be made pursuant to this Section 6.15B
that were carried forward to such preceding fiscal year pursuant to this
paragraph (b)) and (ii) 50% of the amount of Capital Expenditures permitted to
be made pursuant to this Section 6.15B for the immediately preceding fiscal year
(minus the amount of any unused Capital Expenditures permitted to be made
pursuant to this Section 6.15B that were carried forward to such preceding
fiscal year pursuant to this paragraph (b)).
ARTICLE VII
Events of Default; Right To Cure
SECTION 7.01. Events of Default. (a) If any of the following
events ("Senior Events of Default") shall occur:
(i) the Borrower shall fail to pay any principal of any Senior
Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(ii) the Borrower shall fail to pay any interest on any Senior
Loan or any fee or any other amount (other than an amount referred to
in clause (i) of this paragraph (a) of this Section 7.01) payable under
this Agreement or any other Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of three Business Days;
(iii) any representation or warranty made or deemed made by or
on behalf of Allied Waste, the Borrower or any Restricted Subsidiary in
or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(iv) Allied Waste or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.01A
(with respect to the existence of Allied Waste or the Borrower), 5.05A,
5.10A or 5.21A or in Article VI-A;
(v) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (i), (ii) or (iv) of this paragraph (a)
of this Section 7.01 and other than any covenant set forth in Article
V-B or Article VI-B or any provision of the Subordinated Parent
Guarantee Agreement or Subordinated Subsidiary Guarantee Agreement),
and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower
(which notice will be given at the request of any Senior Lender);
(vi) Allied Waste, the Borrower or any Subsidiary shall fail
to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness or the Tranche D Term
Loans, when and as the same shall become due and payable beyond the
applicable period of grace, if any, provided in the instrument or
agreement under which such Material Indebtedness was created;
(vii) any event or condition occurs that results in any
Material Indebtedness or the Tranche D Term Loans becoming due prior to
its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of
any Material Indebtedness or the Tranche D Term Loans or any trustee or
agent on its or their behalf to cause any Material Indebtedness or the
Tranche D Term Loans to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (vii) shall not apply to
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets of the Borrower or any Restricted
Subsidiary;
(viii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (A) liquidation,
reorganization or other relief in respect of Allied Waste, the Borrower
or any Material Loan Party or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (B) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Allied Waste, the Borrower or any
Material Loan Party or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 90 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(ix) Allied Waste, the Borrower or any Material Loan Party
shall (A) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (B) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or
petition described in clause (viii) of this Article, (C) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Allied Waste, the
Borrower or any Material Loan Party or for a substantial part of its
assets, (D) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (E) make a general
assignment for the benefit of creditors or (F) take any action for the
purpose of effecting any of the foregoing;
(x) Allied Waste, the Borrower or any Material Loan Party
shall become unable, admit in writing its inability or fail generally
to pay its debts as they become due;
(xi) one or more judgments for the payment of money in an
aggregate amount in excess of $50,000,000 (except to the extent covered
by insurance as to which the insurer has acknowledged in writing its
obligation to cover) shall be rendered against Allied Waste, the
Borrower, any Material Loan Party or any combination thereof and the
same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of Allied Waste, the Borrower or any Material Loan Party to
enforce any such judgment;
(xii) an ERISA Event shall have occurred that, in the opinion
of the Required Senior Lenders, when taken together with all other
ERISA Events that have occurred and are then outstanding, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $50,000,000 for all
periods;
(xiii) (A) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any material portion of the
Collateral, with the priority required by the applicable Security
Document, except (I) as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan
Documents or (II) as a result of the Collateral Agent's failure to
maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Non-Shared Collateral
Security Agreement or (B) the Obligations of the Borrower, or the
obligations of Allied Waste or any Subsidiaries pursuant to a Guarantee
Agreement shall cease to constitute senior indebtedness under the
subordination provisions of any document or instrument evidencing any
permitted subordinated Indebtedness or such subordination provisions
shall be invalidated or otherwise cease to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with
their terms;
(xiv) a Change in Control shall occur; or
(xv) an Environmental Claim shall have been asserted against
any member of the Allied Group or any of their respective Affiliates,
that, in the reasonable judgment of the Required Senior Lenders, is
reasonably likely to be determined adversely to any member of the
Allied Group, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor);
then, and in every such event (other than an event with respect to the Borrower
described in clause (viii) or (ix) of this paragraph (a) of this Section 7.01),
and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Senior Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Senior Commitments, and
thereupon the Senior Commitments shall terminate immediately, and (ii) declare
the Senior Loans then outstanding to be due and payable in whole (or in part, in
which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Senior Loans
so declared to be due and payable, together with accrued interest thereon and
all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case
of any event with respect to Allied Waste or the Borrower described in clause
(viii) or (ix) of this paragraph (a) of this Section 7.01, the Senior
Commitments shall automatically terminate and the principal of the Senior Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
(b) If any of the following events ("Tranche D Events of
Default" shall occur:
(i) the Borrower shall fail to pay any interest on any Tranche
D Loan or any Tranche D Obligation (other than an amount referred to in
clause (ii) of this paragraph (b) of this Section 7.01) when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of 3 Business Days, whether or not prohibited
by Article X of this Agreement;
(ii) the Borrower shall fail to pay any principal of any
Tranche D Loan or when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise, whether or not prohibited by Article X of this
Agreement;
(iii) any Tranche D Representation or Warranty or any other
representation or warranty made or deemed made to the Tranche D Lenders
by or on behalf of Allied Waste, the Borrower or any Restricted
Subsidiary in or in connection with any Loan Document or any amendment
or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(iv) Allied Waste or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.01B
(with respect to the existence of Allied Waste or the Borrower), 5.05B
or 5.18B or in Article VI-B;
(v) any Loan Party shall fail to observe or perform any
covenant, condition or agreement made for the benefit of the Tranche D
Lenders contained in any Tranche D Loan Document (other than those
specified in clause (i), (ii) or (iv) of this paragraph (b) of this
Section 7.01), and such failure shall continue unremedied for a period
of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Tranche D
Lender);
(vi) Allied Waste, the Borrower or any Subsidiary shall fail
to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable beyond the applicable period of grace, if
any, provided in the instrument or agreement under which such Material
Indebtedness was created;
(vii) a default or defaults under any bonds, debentures, notes
or other evidences of, or obligations constituting, Indebtedness by the
Borrower, any Guarantors or any Restricted Subsidiary or under any
mortgages, indentures, instruments or agreements under which there may
be issued or existing or by which there may be secured or evidenced any
Indebtedness of the Borrower, any Guarantor or any Restricted
Subsidiary with a principal or similar amount then outstanding,
individually or in the aggregate, in excess of $50,000,000 (whether
such Indebtedness now exists or is hereafter created) which default or
defaults constitute a failure to pay any portion of the principal or
similar amount of such Indebtedness when due and payable after the
expiration of any applicable grace period with respect to such
Indebtedness, or will have resulted in such Indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable;
(viii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (A) liquidation,
reorganization or other relief in respect of Allied Waste, the Borrower
or any Material Loan Party or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (B) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Allied Waste, the Borrower or any
Material Loan Party or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 90 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(ix) Allied Waste, the Borrower or any Material Loan Party
shall (A) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (B) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or
petition described in clause (viii) of this Article, (C) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Allied Waste, the
Borrower or any Material Loan Party or for a substantial part of its
assets, (D) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (E) make a general
assignment for the benefit of creditors or (F) take any action for the
purpose of effecting any of the foregoing;
(x) Allied Waste, the Borrower, BFI or any Material Loan Party
shall become unable, admit in writing its inability or fail generally
to pay its debts as they become due;
(xi) one or more judgments for the payment of money in an
aggregate amount in excess of $50,000,000 (except to the extent covered
by insurance as to which the insurer has acknowledged in writing its
obligation to cover) shall be rendered against Allied Waste, the
Borrower, any Material Loan Party or any combination thereof and the
same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of Allied Waste, the Borrower or any Material Loan Party to
enforce any such judgment;
(xii) an ERISA Event shall have occurred that, in the opinion
of the Required Tranche D Lenders, when taken together with all other
ERISA Events that have occurred and are then outstanding, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $50,000,000 for all
periods;
(xiii) a Change in Control shall occur; or
(xiv) an Environmental Claim shall have been asserted against
any member of the Allied Group or any of their respective Affiliates,
that, in the reasonable judgment of the Required Tranche D Lenders, is
reasonably likely to be determined adversely to any member of the
Allied Group, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor);
then, and in every such event (other than an event with respect to the Borrower
described in clause (viii) or (ix) of this paragraph (b) of this Section 7.01),
and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Tranche D Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Tranche D Commitments, and
thereupon the Tranche D Commitments shall terminate immediately, and (ii)
declare the Tranche D Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Tranche D Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to Allied Waste or the
Borrower described in clause (viii) or (ix) of this paragraph (b) of this
Section 7.01, the Tranche D Commitments shall automatically terminate and the
principal of the Tranche D Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 7.02. Borrower's Right to Cure. (a) Leverage Ratio.
Notwithstanding anything to the contrary contained in Section 7.01, in the event
that Allied Waste and the Borrower fail to comply with the requirements of
Section 6.14A in respect of or as determined with reference to any Rolling
Period, until the expiration of the 10th Business Day subsequent to the date the
certificate calculating the Leverage Ratio is required to be delivered pursuant
to Section 5.04A(c), Allied Waste shall have the right to issue Permitted Cure
Securities for cash or otherwise receive cash contributions to the capital of
Allied Waste, and, in each case, to apply such cash in accordance with Section
2.11(c) and, if applicable, Section 2.08(c) (collectively, the "Cure Right"),
and upon such application by Borrower of such cash (the "Cure Amount") pursuant
to the exercise by Allied Waste of such Cure Right the Leverage Ratio shall be
recalculated giving effect to the following pro forma adjustments;
(i) Total Indebtedness shall be decreased in respect of the
last fiscal quarter of such Rolling Period, solely for the purpose of
measuring the Leverage Ratio and not for any other purpose under this
Agreement, by an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculation,
Allied Waste and Borrower shall then be in compliance with the
requirements of Section 6.14A, Allied Waste and Borrower shall be
deemed to have satisfied the requirements of Section 6.14A as of the
relevant date of determination with the same effect as though there had
been no failure to comply therewith at such date, and the applicable
breach or default of Section 6.14A which had occurred shall be deemed
cured for all purposes of the Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding
anything herein to the contrary, (a) in no event shall Allied Waste be entitled
to exercise the Cure Right in more than three consecutive fiscal quarters, (b)
in any eight fiscal quarter period, there must be a period of at least four
consecutive fiscal quarters during which Allied Waste has not exercised its Cure
Right and (c) each Cure Amount shall not exceed the amount required to cure the
applicable failure to comply with Section 6.14A.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. For
purposes of this Article VIII, all references to the Administrative Agent are
deemed to include the Collateral Agent and the Collateral Trustee.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Allied Waste, the Borrower or any
Subsidiary or any Affiliate of any of the foregoing as if it were not the
Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Senior Lenders or the Required Tranche D Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to Allied Waste, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders, Required Senior Lenders or the Required Tranche D Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall not be
deemed to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by Allied Waste, the Borrower or a Senior
Lender or Tranche D Lender, as applicable, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Allied Waste or the Borrower, to it at 00000 X.
Xxxxxxxx--Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, 00000, Office of
the Treasurer, Attention of Treasurer (Telecopy No. (000) 000-0000),
with a copy to Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx
Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxx Xxxxxx, Esq. (Telecopy
No. (000) 000-0000;
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxxx Xxxxx (Telecopy No.
(000) 000-0000), with a copy to Chase Bank of Texas, National
Association, 0000 Xxxx Xxxxxx (0xx Xxxxx), Xxxxxx, XX 00000, Attention
of Xxxxx Xxxxxxxx (Telecopy No.
(000) 000-0000);
(c) if to the Issuing Bank, to it at The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000, Attention of Xxxxxxxx Xxxxx (Telecopy No. (212)
552-5777), with a copy to Chase Bank of Texas, National Association,
0000 Xxxx Xxxxxx (0xx Xxxxx), Xxxxxx, XX 00000, Attention of Xxxxx
Xxxxxxxx (Telecopy No.
(000) 000-0000);
(d) if to the Swingline Lender, to it at The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxxx Xxxxx (Telecopy No.
(000) 000-0000); and
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Allied Waste, the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; except that (i) an agreement may increase the Senior Commitments or
amend, waive or modify any provision of (A) Section 3.22 and Section 3.23, (B)
any Section contained in Article V-A, (C) any Section contained in Article VI-A,
(D) Section 7.01(a), (E) Section 4.01(b) (insofar as it relates to Security
Documents other than Tranche D Loan Documents) and Section 4.01(f) and (F) any
Senior Event of Default or Senior Default with the written consent of the
Required Senior Lenders (and not the Required Tranche D Lenders), (ii) an
agreement may amend, waive or modify any provision of (A) any Section contained
in Article V-B, (B) any Section contained in Article VI-B, (C) Section 7.01(b),
and (D) Section 4.01(q) and (E) any Tranche D Event of Default or Tranche D
Default with the written consent of the Required Tranche D Lenders (and not the
Required Senior Lenders) and (iii) an agreement may amend, waive or modify any
provision of this Agreement or any other Loan Document (other than the
Subordinated Guarantee Agreements) with the written consent of the Required
Senior Lenders, unless such amendment, waiver or modification adversely affects
the Tranche D Lenders in their capacities as such, or, in the case of the
Tranche D Loan Documents, with the written consent of the Required Tranche D
Lenders, unless such an amendment, waiver or modification adversely affects the
Senior Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) extend the final maturity of any
Loan or L/C Disbursement, without the prior written consent of each Lender
directly affected thereby, (iv) extend the scheduled amortization (other than
final maturity) of any Loan or the scheduled date for payment of interest and
fees without the prior written consent of Lenders holding Loans representing at
least 80% of the aggregate principal amount of the then outstanding Loans
affected thereby, (v) accelerate any scheduled amortization (including final
maturity) of any Loan without the prior written consent of Lenders holding Loans
representing at least 80% of the aggregate principal amount of the then
outstanding Loans affected thereby, (vi) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments among Senior Lenders
required thereby, without the written consent of each Senior Lender, or would
alter the pro rata sharing of payments among Tranche D Lenders required thereby,
without the written consent of each Tranche D Lender, (vii) change any of the
provisions of this Section that affect the Senior Lenders or the definition of
"Required Senior Lenders" or any other provision of any Loan Document specifying
the number or percentage of Lenders or Senior Lenders (or Lenders or Senior
Lenders of any Class) required to waive, amend or modify any rights thereunder
or make any determination or grant any consent thereunder, without the written
consent of each Senior Lender (or each Senior Lender of such Class, as the case
may be) or change any of the provisions of this Section that affects the Tranche
D Lenders or the definition of "Required Tranche D Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders or
Tranche D Lenders (or Lenders or Tranche D Lenders of any Class) required to
waive, amend or modify any rights thereunder or make any determination or grant
any consent thereunder, without the written consent of each Tranche D Lender (or
each Tranche D Lender of such Class, as the case may be), (viii) release Allied
Waste or any Material Loan Party from its Guarantee under the applicable
Guarantee Agreement (except as expressly provided in such Guarantee Agreement),
or limit its liability in respect of such Guarantee, without the written consent
of each Senior Lender or Tranche D Lender, as applicable, (ix) release all or
substantially all of the Collateral from the Liens of the Security Documents,
without the written consent of each Senior Lender, (x) change the rights of the
Tranche B Lenders or Tranche C Lenders to decline mandatory prepayments as
provided in Section 2.11, without the written consent of Tranche B Lenders or
Tranche C Lenders, as applicable, holding a majority of the outstanding Tranche
B Term Loans or Tranche C Term Loans, as applicable or (xi) impose any
additional restriction (other than as set forth in Section 9.14 on the date
hereof) on the rights of the Tranche D Lenders hereunder to exchange any Tranche
D Loans for Exchange Notes or change the rate of exchange thereof or amend the
terms of the Exchange Notes in any manner that requires (or would, if the
Exchange Notes were outstanding, require) the approval of all holders of
Exchange Notes; provided further that (A) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Issuing Banks or the Swingline Lender without the prior written consent of the
Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may
be, and (B) no such agreement shall effect any waiver, amendment or modification
that by its terms adversely affects the rights in respect of payments or
collateral of Lenders participating in any Class of Loans differently from those
of Lenders participating in other Classes of Loans, without the consent of a
majority in interest of the Lenders participating in the adversely affected
Class, or change the relative rights in respect of payments or collateral of the
Lenders participating in different Classes of Loans without the consent of a
majority in interest of Lenders participating in each affected Class; provided
further, that the Administrative Agent, on the one hand, and, in the case of
this Agreement, Allied Waste and the Borrower or, in the case of any other Loan
Document, the Loan Parties thereto, on the other hand, may, without the consent
of any Lender amend or modify this Agreement or any other Loan Document, as the
case may be, (A) to cure any typographical error, so long as such amendment or
modification does not adversely affect the rights of any Lender, any Issuing
Bank or the Administrative Agent, (B) to effect the assumption by a successor
Person of all obligations of the Borrower or any other Loan Party under this
Agreement and the other Loan Documents in connection with any transaction
complying with Section 6.06A(a), (C) to correct and amplify the description of
any property subject or intended to be subject to the Lien of the applicable
Security Document and (D) to add property to the Collateral as permitted or
required by the applicable Security Document; and provided further that any
increase in the Tranche D Margin in accordance with the terms of the fee letters
will not require any amendment to this Agreement and will be effective upon
notice by the Administrative Agent. Notwithstanding the foregoing, no amendment,
waiver or modification of this Agreement shall be effective if such amendment,
waiver or modification shall cause the covenants, the change of control
definition and the events of default applicable to the Tranche D Loans to be
more restrictive than the covenants, the change of control definition and the
events of default applicable to the Senior Loans.
Except as otherwise provided herein or in the Security
Documents, the Administrative Agent shall not consent to terminate any
Guarantee, release any collateral or terminate any Lien under any Security
Document unless such release or termination shall be consented in writing by the
Required Senior Lenders; provided that: (i) the consent of all Senior Lenders
shall be required to release all or substantially all of the Collateral or
release all or substantially all guarantors under the Guarantee Agreements from
the Guarantees, except upon the termination of all Liens and all Guarantees
created by the Security Documents in accordance with the terms thereof; and (ii)
no such consent shall be required to release any Lien covering property subject
to an Asset Sale permitted hereunder and, in the case of an Asset Sale involving
the sale of a Subsidiary Loan Party permitted hereunder, the Guarantee of such
Subsidiary Loan Party, and, upon such a permitted Asset Sale, such property
and/or such Subsidiary Loan Party shall be transferred free and clear of the
Lien of the Security Documents and/or Guarantee, if applicable, without any
action on the part of any party (and the Administrative Agent is hereby
authorized to execute such releases and other documents, and to take such other
action, as the Borrower may reasonably request to give effect thereto).
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates and the other Initial Lenders, including
but not limited to the reasonable expenses incurred in connection with due
diligence and the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and of a single local counsel for the Administrative Agent
in each applicable jurisdiction, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration (to
the extent such administration of an outside counsel or consultant) of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Property or Former Property (as defined in Section 3.16 hereof),
or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing Bank, the
Collateral Agent (with respect to its activities for the benefit of the Senior
Lenders) or the Swingline Lender under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Administrative Agent, and each Senior
Lender agrees to pay to the Issuing Bank, the Collateral Agent or the Swingline
Lender, as the case may be, such Lender's or Senior Lender's, as applicable, pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity
as such. For purposes hereof, a Lender's "pro rata share" shall be determined
based upon its share of the sum of the total Revolving Exposures, outstanding
Term Loans and unused Commitments at the time and a Senior Lender's "pro rata
share" shall be determined based upon its share of the sum of the total
Revolving Exposures outstanding, Senior Term Loans and unused Senior Commitments
at the time.
(d) To the extent permitted by applicable law, neither Allied
Waste nor the Borrower shall assert, and each hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than ten days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except that
the Borrower may not, other than in connection with a merger or consolidation
permitted by Section 6.06A and Section 6.06B where the survivor of such merger
or consolidation assumes the Borrower's obligations hereunder, assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender, an Affiliate of a Lender or
a Related Fund of a Lender, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or a portion of a Revolving Commitment
or any Senior Lender's obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Bank and the Swingline Lender) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender, an Affiliate of
a Lender, or a Related Fund of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance or Tranche D Assignment
and Acceptance, as the case may be, with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 (treating any
fund that invests in bank loans and any other fund that invests in bank loans
and is managed or advised by the same investment advisor of such fund or by an
affiliate of such investment advisor as a single assignment for purposes of the
minimum amount) unless each of the Borrower and the Administrative Agent
otherwise consent (which consent shall not be unreasonably withheld), (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance or Tranche D Assignment and Acceptance, as applicable, together
(except in the event of an assignment by the Initial Lenders) with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if a Senior Event of Default
under clause (viii) or (ix) of Section 7.01(a) has occurred and is continuing or
if a Tranche D Event of Default under clause (viii) or (ix) of Section 7.01(b)
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance or Tranche D Assignment and
Acceptance, as applicable, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance or
Tranche D Assignment and Acceptance, as applicable, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance or Tranche D Assignment and Acceptance, as applicable, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance or Tranche D Assignment and Acceptance, as applicable, covering all
of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance and Tranche D Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and Allied Waste, the Borrower, the Administrative Agent, the
Issuing Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Senior Lender or Tranche D Lender, as
applicable, hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be provided to each Initial Lender and be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance or Tranche D Assignment and Acceptance, as applicable, executed by an
assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance or
Tranche D Assignment and Acceptance, as applicable, and record the information
contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Allied Waste, the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
or Foreign Tranche D Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) and 2.17(f) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(h) In the event that Standard & Poor's Ratings Group or
Xxxxx'x Investors Service, Inc. shall downgrade the long-term certificate of
deposit ratings or long-term senior unsecured debt ratings of any Senior Lender
(or the parent company thereof), and the resulting ratings shall be BBB+ or Baa1
or lower, then the Fronting Bank shall have the right, but not the obligation,
at its own expense, upon notice to such Senior Lender and the Administrative
Agent, to replace (or to request Allied Waste and Borrower, at the sole expense
of the Fronting Bank, to use their reasonable efforts to replace) such Senior
Lender with respect to such Senior Lender's Revolving Credit Commitment with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Senior Lender hereby agrees to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations in
respect of its Revolving Credit Commitment to such assignee; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) such assignee shall pay to such
Senior Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans and L/C
Disbursements of such Senior Lender hereunder and all other amounts accrued for
such Senior Lender's account or owed to it hereunder.
(i) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPV"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan and (ii) 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 such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this 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 Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the Unites Sates or any State thereof. In
addition, notwithstanding anything to the contrary in this Section 9.04, any SPV
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. As this Section
9.04(i) applies to any particular SPV, this section may not be amended without
the written consent of such SPV.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, the commitment letters and fee letters heretofore
entered into with the Initial Lenders and Credit Suisse First Boston relating to
the facilities contemplated by this Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof; provided that the Borrower's obligations under such
commitment letters shall terminate and be superseded by the provisions of the
Loan Documents on the Effective Date to the extent specifically set forth in
such commitment letters. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If (i) a Senior Event of
Default shall have occurred and be continuing, each Senior Lender and each of
its Affiliates or (ii) a Tranche D Event of Default shall have occurred and be
continuing, each Tranche D Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have and are subject to the provisions of Article X.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each of Allied Waste and the Borrower hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Allied Waste, the Borrower or its properties
in the courts of any jurisdiction.
(c) Each of Allied Waste and the Borrower hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) to any direct or
indirect contractual counterparty to an Interest Rate Protection Agreement or
such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 9.12), (h) to
the National Association of Insurance Commissioners or any similar organization,
(i) with the consent of the Borrower or (h) to the extent such Information (j)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than Allied Waste or the
Borrower. For the purposes of this Section, "Information" means all information
received from Allied Waste or the Borrower relating to Allied Waste or the
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by Allied Waste or the Borrower; provided that, in the
case of information received from Allied Waste or the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. Exchange of Loans for Exchange Notes. (a) At any
time and from time to time, on or after the first anniversary of the Effective
Date and before the Tranche D Maturity Date, if all or any portion of a Tranche
D Loan of any Tranche D Lender shall remain outstanding, such Tranche D Lender
shall have the option to receive an Exchange Note in exchange for all or a
portion of such Loan in accordance with clause (b) of this Section. The
principal amount of any Exchange Note received in such an exchange will equal
100% of the aggregate principal amount of the Tranche D Loan (or portion
thereof) for which it is exchanged on the date of exchange (any such date, an
"Exchange Date").
(b) To request an Exchange Note, a Tranche D Lender shall, by
hand delivery or telecopy to the Administrative agent and the Borrower, deliver
a written request (an "Exchange Request") that specifies the aggregate principal
amount of such Tranche D Lender's Tranche D Loan to be exchanged ,which shall be
in an aggregate amount that is an integral multiple of $100,000 and not less
than $1,000,000; provided that a Tranche D Lender may not elect to exchange its
outstanding Tranche D Loan for an Exchange Note unless such Tranche D Lender
intends at the time of such partial exchange to sell the Exchange Note received
in such exchange to a third party and so certifies to such intent in the
applicable Exchange Notice. The Borrower shall, not later than five Business
Days following receipt of an Exchange Request, (i) execute and deliver, cause
each Tranche D Restricted Subsidiary to execute and deliver and cause a bank or
trust company that meets the requirements of Section 7.10 of the Exchange Note
Indenture to execute and deliver, in its capacity thereunder, the Exchange Note
Indenture if the Exchange Note Indenture shall not have been previously executed
and delivered and (ii) prepare, execute and deliver to such Tranche D Lender in
accordance with the terms of the Exchange Note Indenture, an Exchange Note (A)
payable to such Tranche D Lender, (B) in a principal amount equal to the
principal amount of such Tranche D Lender's Loan (or portion thereof) being
exchanged, (C) bearing interest as set forth in the Exchange Note Indenture and
(D) dated the Exchange Date, and cause each Tranche D Restricted Subsidiary to
endorse its Guarantee thereon. Upon such exchange, the Tranche D Loan (or
portion thereof) so exchanged shall be deemed repaid in an amount equal to the
aggregate principal amount of such Tranche D Loan so exchanged.
(c) Any Exchange Note issued in accordance with this Section
shall be governed by, and construed in accordance with, the terms of the
Exchange Note Indenture.
(d) If any Default (but not an Event of Default) shall have
occurred and be continuing on any Exchange Date, any notices given or cure
periods commenced while the Tranche D Loan to be exchanged was outstanding shall
be deemed given or commenced (as of the actual date thereof) for all purposes
with respect to the applicable Exchange Note (with the same effect as if the
relevant Exchange Note had been outstanding as of the actual dates as provided
in the Exchange Note Indenture).
SECTION 9.15. Registration Rights. If Exchange Notes are
issued pursuant to the terms hereof, then the holders of such Exchange Notes
shall have the right, as set forth in an Exhibit to the Exchange Note Indenture,
to require the Borrower to use its best efforts to register the Exchange Notes
under the Securities Act of 1933.
ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate. The Borrower agrees,
and each Tranche D Lender agrees, that the Tranche D Obligations are
subordinated in right of payment, to the extent and in the manner provided in
this Article X, to the prior payment in full in cash or Cash Equivalents of all
Senior Indebtedness and that the subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness. The Tranche D Obligations
shall in all respects rank pari passu with all other Senior Subordinated
Indebtedness of the Borrower and only indebtedness of the Borrower that is
Senior Indebtedness shall rank senior to the Tranche D Obligations in accordance
with the provisions set forth herein.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Borrower to creditors upon a total
or partial liquidation or a total or partial dissolution of the Borrower or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Borrower or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of the Senior
Indebtedness before Tranche D Lenders shall be entitled to receive any
payment of principal of, or premium, if any, interest or any other
amount in respect of the Tranche D Obligations; and
(2) until the Senior Indebtedness is paid in full in cash or
in Cash Equivalents, any payment or distribution to which Tranche D
Lenders would be entitled but for this Article X shall be made to
holders of Senior Indebtedness as their interests may appear.
SECTION 10.03. Default on Senior Indebtedness. The Borrower
may not pay the principal of, premium, if any, interest on, or any other amount
in respect of the Tranche D Obligations or make any deposit pursuant to any
defeasance provision or otherwise repay any Tranche D Obligation (collectively,
"repay the Tranche D Obligations") if (i) any Senior Indebtedness is not paid
when due or (ii) any other default on Senior Indebtedness occurs and the
maturity of such Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Senior Indebtedness has been paid in
full in cash or Cash Equivalents; provided, however, that the Borrower may repay
the Tranche D Obligations without regard to the foregoing if the Borrower and
the Administrative Agent receive written notice approving such payment from the
Representative of the Designated Senior Indebtedness with respect to which
either of the events set forth in (i) or (ii) above has occurred and is
continuing. During the continuance of any default (other than a default
described in clause (i) or (ii) of the preceding sentence) with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Borrower may not repay the Tranche D Obligations for a period (a
"Payment Blockage Period") commencing upon the receipt by the Borrower and the
Administrative Agent of written notice (a "Blockage Notice") of such default
from the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending 179 days thereafter (or
earlier if such Payment Blockage Period is terminated (i) by written notice to
the Administrative Agent and the Borrower from the Person or Persons who gave
such Blockage Notice, (ii) by repayment in full of such Designated Senior
Indebtedness or (iii) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Borrower may resume payment
of the Tranche D Obligations after such Payment Blockage Period. Not more than
one Blockage Notice may be given in any consecutive 360-day period, irrespective
of the number of defaults with respect to the Designated Senior Indebtedness
during such period; provided, however, that if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness (other than the Bank Indebtedness), the Representative of the Bank
Indebtedness may give another Blockage Notice within such period; provided
further, however, that in no event may the total number of days during which any
Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate
during any 360 consecutive day period.
SECTION 10.04. Acceleration of Payment of Notes. If repayment
of the Tranche D Obligations are accelerated because of a Tranche D Event of
Default, the Borrower or the Administrative Agent shall promptly notify the
holders of the Designated Senior Indebtedness of the acceleration. If any
Designated Senior Indebtedness is outstanding, the Borrower may not repay the
Tranche D Obligations until five Business Days after the representative of the
Designated Senior Indebtedness receives notice of such acceleration and,
thereafter, may repay the Tranche D Obligations only if this Article X otherwise
permits the payment at that time.
SECTION 10.05. When Distributions Must Be Paid Over. If a
distribution is made to Tranche D Lenders that because of this Article X should
not have been made to them, the Tranche D Lenders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness is
paid in full and until the Tranche D Obligations are repaid in full, Tranche D
Lenders shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article X to holders of Senior Indebtedness that otherwise would have
been made to Tranche D Lenders is not, as between the Borrower and Tranche D
Lenders, a payment by the Borrower on Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article X defines the
relative rights of Tranche D Lenders and holders of Senior Indebtedness.
Nothing in this Agreement shall:
(1) impair, as between the Borrower and Tranche D Lenders, the
obligation of the Borrower, which is absolute and unconditional, to pay
principal of, premium, if any, interest or any other amounts in respect
of Tranche D Obligations in accordance with the terms thereof; or
(2) prevent the Administrative Agent or any Senior Lender from
exercising its available rights of holders of Senior Indebtedness to
receive distributions otherwise payable to Tranche D Lenders.
SECTION 10.08. Subordination May Not Be Impaired by Borrower.
No right of any holder of Senior Indebtedness to enforce the subordination of
the Tranche D Obligations shall be impaired by any act or failure to act by the
Borrower or by its failure to comply with this Agreement.
SECTION 10.09. Rights of Administrative Agent. Notwithstanding
Section 10.03, the Administrative Agent may continue to make payments on the
Tranche D Obligations and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any such payments unless, not less
than two Business Days prior to the date of such payment, a Responsible Officer
of the Administrative Agent receives notice satisfactory to it that payments may
not be made under this Article X. The Borrower, a Representative or a holder of
Senior Indebtedness may give the notice.
The Administrative Agent in its individual or any other
capacity may hold Senior Indebtedness with the same rights it would have if it
were not Administrative Agent. The Administrative Agent shall be entitled to all
the rights set forth in this Article X with respect to any Senior Indebtedness
that may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness; and nothing in Article VIII shall deprive the
Administrative Agent of any of its rights as such holder. Nothing in this
Article X shall apply to claims of, or payments to, the Administrative Agent
under or pursuant to Article VIII.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article X Not To Prevent Tranche D Events of
Default or Limit Right To Accelerate. The failure to make a payment pursuant to
Tranche D Obligations by reason of any provision in this Article X shall not be
construed as preventing the occurrence of a Tranche D Default. Nothing in this
Article X shall have any effect on the right of the Tranche D Lenders or the
Administrative Agent to accelerate the maturity of the Tranche D Obligations.
SECTION 10.12. Administrative Agent Entitled To Rely. Upon any
payment or distribution pursuant to this Article X, the Administrative Agent and
the Tranche D Lenders shall be entitled to rely (i) upon any order or decree of
a court or competent jurisdiction in which any proceedings of the nature
referred to in Section 10.02 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Administrative Agent or to the Tranche D Lenders or (iii) upon the
Representatives for the holders of Senior Indebtedness for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Borrower, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
X. In the event that the Administrative Agent determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article X, the Administrative Agent may request such Person to furnish
evidence to the reasonable satisfaction of the Administrative Agent as to the
amount of Senior Indebtedness held by such person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article X, and, if such
evidence is not furnished, the Administrative Agent may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Article VIII shall be applicable to all
actions or omissions of actions by the Administrative Agent pursuant to this
Article X.
SECTION 10.13. Administrative Agent To Effectuate
Subordination. Each Tranche D Lender by making Tranche D Term Loans, authorizes
and directs the Administrative Agent on such Tranche D Lender's behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Tranche D Lenders and the holders of Senior
Indebtedness as provided in this Article X and appoints the Administrative Agent
as attorney-in-fact for any and all such purposes.
SECTION 10.14. Administrative Agent Not Fiduciary for Holders
of Senior Indebtedness. The Administrative Agent shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if it shall mistakenly pay over or distribute to the Tranche D
Lenders or the Borrower or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article X or
otherwise.
SECTION 10.15. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Tranche D Lender by making Tranche D Term Loans,
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the making of the Tranche D Term Loans, to acquire and continue to hold,
such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such
[space intentionally left blank]
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALLIED WASTE INDUSTRIES, INC.,
by
-------------------------
Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Collateral Agent,
by
-------------------------
Name:
Title:
CITICORP USA, INC.,
individually and as
Syndication Agent,
by
-------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC.,
individually and as
Documentation Agent,
by
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, individually and as Documentation Agent,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
