Exhibit 10.2
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NINTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT AND LIMITED CONSENT
This NINTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT AND
LIMITED CONSENT (this "Amendment") is dated as of September 15, 2003 and entered
into by and among COVANTA ENERGY CORPORATION, a Delaware corporation
("Company"), and THE SUBSIDIARIES OF COMPANY LISTED ON THE SIGNATURE PAGES
HEREOF AS BORROWERS (collectively, Company and such Subsidiaries of Company are
"Borrowers" and each a "Borrower"), THE SUBSIDIARIES OF COMPANY LISTED ON THE
SIGNATURE PAGES HEREOF AS SUBSIDIARY GUARANTORS (collectively, the "Subsidiary
Guarantors"), THE LENDERS PARTY HERETO, BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders ("Administrative Agent"), and DEUTSCHE BANK AG, NEW YORK
BRANCH, as Documentation Agent for the Lenders ("Documentation Agent"), and is
made with reference to that certain Debtor-in-Possession Credit Agreement dated
as of April 1, 2002, as amended by that certain First Amendment to
Debtor-in-Possession Credit Agreement and Security Agreement dated as of April
3, 2002, that certain Second Amendment to Debtor-in-Possession Credit Agreement
dated as of May 10, 2002, that certain Third Amendment and Limited Waiver to
Debtor-in-Possession Credit Agreement dated as of October 4, 2002, that certain
Fourth Amendment to Debtor-in-Possession Credit Agreement and Limited Consent
dated as of December 10, 2002, that certain Fifth Amendment to
Debtor-in-Possession Credit Agreement dated as of December 18, 2002, that
certain Sixth Amendment to Debtor-in-Possession Credit Agreement, Limited
Consent and Amendment to Security Agreement dated as of March 25, 2003, that
certain Seventh Amendment to Debtor-in-Possession Credit Agreement and Limited
Consent dated as of May 23, 2003 and that certain Eighth Amendment to
Debtor-in-Possession Credit Agreement and Limited Consent dated as of August 22,
2003 (as so amended, the "Credit Agreement"), by and among Borrowers, the
financial institutions parties thereto as Lenders, Documentation Agent and
Administrative Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement (as amended
by this Amendment).
RECITALS
WHEREAS, Borrowers and the undersigned Lenders desire to extend the
termination date of the credit facilities under the Credit Agreement and to make
certain other amendments to the Credit Agreement, subject to the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT AND LIMITED CONSENT
1.1 Provisions Relating to Defined Terms.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Minimum Cumulative Consolidated Operating Income
Schedule" and "Monthly Budget" in their entirety and inserting the following new
definitions in the appropriate alphabetical order:
"Minimum Cumulative Consolidated Operating Income Schedule"
has the meaning assigned to that term in subsection 6.1(xxi); provided,
however, that the Minimum Cumulative Consolidated Operating Income
Schedule shall be deemed supplemented (i) as of the Sixth Amendment
Effective Date by the supplement thereto delivered to the Agents in
accordance with Section 3.1 of the Sixth Amendment and (ii) by, and as
of the date of delivery of, the supplement thereto delivered to the
Agents in accordance with subsection 6.1(xxiv) of this Agreement.
"Monthly Budget" means, (i) prior to the Sixth Amendment
Effective Date, the consolidated cash flow projections delivered by
Borrowers to Agents pursuant to subsection 4.1F for each month ending
during the Budget Period, setting forth on a line-item basis monthly
anticipated cash receipts and disbursements, provided that, upon
approval by Agents or Requisite Lenders, as the case may be, of any
monthly cash flow projections delivered pursuant to subsection
6.1(xix)(a) or pursuant to clause (iv) of the definition of "Final
Borrowing Order", the Monthly Budget described in this clause (i) shall
be deemed supplemented and/or restated with respect to the following
month and each month thereafter in the Budget Period by the projections
for each such month covered by such approved cash flow projections;
(ii) on and after the Sixth Amendment Effective Date and prior to the
Ninth Amendment Effective Date, the consolidated cash flow projections
attached to the Sixth Amendment as Annex A (Exhibit XVI), setting forth
on a line-item basis monthly anticipated cash receipts and
disbursements; and (iii) on and after the Ninth Amendment Effective
Date, the consolidated cash flow projections attached to the Ninth
Amendment as Annex A (Exhibit XVI), setting forth on a line-item basis
monthly anticipated cash receipts and disbursements.
B. Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following new definitions in the appropriate alphabetical order:
"Amended Onondaga Service Agreement" means an amendment to or
amendment and restatement of the operating or service agreement between
Covanta Onondaga and OCRRA relating to the resource recovery facilities
for the Onondaga Project, as in effect on the Ninth Amendment Effective
Date, which amendment or amendment and restatement shall be in form and
substance satisfactory to Agents and shall be substantially similar to
the existing service agreement between Covanta Onondaga and OCRRA,
except that such agreement between Covanta Onondaga and OCRRA shall
provide, among other things, for (i) the Onondaga Project
Restructuring, and (ii) a waiver by OCRRA of the obligation of Company
and its Subsidiaries to provide credit enhancement for Covanta
Onondaga's obligations.
"Covanta Onondaga" means Covanta Onondaga Limited Partnership,
a Delaware limited partnership.
"Mizuho Letters of Credit" means (i) the Tranche B Letter of
Credit issued by Mizuho Corporate Bank Ltd. (formerly known as Dai-Ichi
Kangyo Bank) in the face amount of $7,520,423.00 immediately prior to
the Ninth Amendment Effective Date and (ii) the Tranche B Letter of
Credit issued by Mizuho Corporate Bank Ltd. (formerly known as Dai-Ichi
Kangyo Bank) in the face amount of $14,951,617.00 immediately prior to
the Ninth Amendment Effective Date.
"Ninth Amendment" means the Ninth Amendment to
Debtor-In-Possession Credit Agreement and Limited Consent dated as of
September 15, 2003.
"Ninth Amendment Effective Date" has the meaning assigned to
that term in Section 4.5 of the Ninth Amendment.
"OCRRA" Onondaga County Resource Recovery Agency.
"Onondaga Project" means the waste-to-energy Project in
Onondaga County, New York.
"Onondaga Project Bonds" means the $147,300,000 in principal
amount of bonds issued by OCRRA relating to the Onondaga Project
outstanding on the Ninth Amendment Effective Date.
"Onondaga Project Guaranty" means a performance guaranty,
which guaranty shall be in form and substance satisfactory to Agents,
by Company of Covanta Onondaga's obligations under the Amended Onondaga
Service Agreement.
"Onondaga Project Restructuring" means, collectively, the
transactions described in the term sheet attached to the Ninth
Amendment as Annex B, including, without limitation, (i) the execution
and delivery by Covanta Onondaga and OCRRA of the Amended Onondaga
Service Agreement, (ii) the termination of the existing project
guaranty for the Onondaga Project, (iii) the execution and delivery by
Company of the Onondaga Project Guaranty, (iv) the refinancing of the
Onondaga Project Bonds on substantially the terms set forth in such
term sheet, including appropriate amendments to the mortgage and
security agreement, facility lease agreement, and other financing
agreements and instruments relating to the Onondaga Project to which
Covanta Onondaga is a party, (v) the execution and delivery by OCRRA of
a market rate agreement for the delivery of waste after the expiration
of the Amended Service Agreement, (vi) the execution and delivery by
Company and Covanta Onondaga of an agreement providing for the
performance of operations and maintenance services for the period
following expiration of the Amended Service Agreement, together with a
limited guaranty from Company with respect to Covanta Onondaga's
obligations thereunder, (vii) the termination of the existing tax
indemnity agreement between, and Company's guaranty for the benefit of,
the limited partners of Covanta Onondaga with respect to the
obligations of Covanta Onondaga and its general partners relating to
the Onondaga Project, (viii) the amendment of the Covanta Onondaga
partnership agreement to, among other things, eliminate put rights of
and the minimum cash support requirements to the limited partners, and
modify the requirements relating to the distributions of net cash flow,
(ix) the establishment by Covanta Onondaga of a major maintenance
reserve account of up to $5.0 million for major maintenance funding
through annual excess waste fees, (x) the agreement by OCRRA and the
limited partners of Covanta Onondaga that Bankruptcy Court approval of
the Onondaga Project Restructuring shall not create any priority claims
against the bankruptcy estates of Company, Covanta Onondaga or any of
their Affiliates, and (xi) the agreement by OCRRA and the limited
partners of Covanta Onondaga to withdraw their respective prepetition
and postpetition claims (to the extent arising on or before the closing
of the Onondaga Project Restructuring) against Company, Covanta
Onondaga and their Affiliates if the agreements relating to the
Onondaga Project Restructuring are assumed by Company and Covanta
Onondaga in the plan of reorganization in the Chapter 11 Cases, all
such transactions occurring after the Ninth Amendment Effective Date
and pursuant to documentation in form and substance satisfactory to
Agents.
"Onondaga Project Restructuring Conditions" means,
collectively, (i) the consummation of the Onondaga Project
Restructuring, (ii) delivery by Company to Agents of an Officer's
Certificate certifying that the requirements of the Onondaga Project
Restructuring set forth in clauses (i) through (xi) of the definition
of "Onondaga Project Restructuring" have been met and that Covanta
Onondaga and Company have no outstanding or further obligations to
OCRRA under the agreement described in clause (ii) of such definition,
and (iii) delivery to Agents of written evidence, in form and substance
satisfactory to Agents, of the agreements by OCRRA and the limited
partners of Covanta Onondaga described in clauses (x) and (xi) of the
definition of "Onondaga Project Restructuring".
"Onondaga Project Restructuring Liens" means Liens to be
granted by Covanta Onondaga on the major maintenance reserve account
described in clause (ix) of the definition of "Onondaga Project
Restructuring", to secure major capital replacement and repair
obligations with respect to the Onondaga Project.
C. The definition of "Stated Maturity Date" in subsection 1.1 of
the Credit Agreement is hereby amended by inserting at the end thereof the
following sentence:
"On and as of the Ninth Amendment Effective Date, the Stated Maturity
Date shall be deemed to have been extended to April 1, 2004 pursuant to
the second proviso to the first sentence of this definition.".
1.2 Provisions Relating to Tranche B Letters of Credit.
Subsection 3.1A of the Credit Agreement is hereby amended by
adding at the end thereof the following new paragraph (iv):
"(iv) Mizuho Letters of Credit. Notwithstanding anything
contained herein to the contrary, after the Ninth Amendment Effective
Date (1) each of the Mizuho Letters of Credit shall be replaced with a
standby letter of credit issued by BofA, in an identical face amount
and on substantially identical terms to the relevant replaced Mizuho
Letter of Credit, except that the maturity of each such replacement
letter of credit shall be March 31, 2004, (2) each such letter of
credit issued by BofA shall constitute, upon the issuance thereof, a
Tranche B Letter of Credit for all purposes of this Agreement and the
Loan Documents and shall be deemed by Borrowers and Lenders to be a
renewal and extension of the relevant Mizuho Letter of Credit replaced
thereby and a "deemed issuance" of a Tranche B Letter of Credit
pursuant to subsection 3.1A(ii) of the Credit Agreement, and (3) BofA
shall be the Issuing Lender with respect to each such Tranche B Letter
of Credit and Borrowers shall be deemed to have requested that such
Issuing Lender issue such Tranche B Letter of Credit to replace the
Mizuho Letters of Credit.".
1.3 Provisions Relating to Affirmative Covenants.
Subsection 6.1 of the Credit Agreement is hereby amended by
(i) deleting the "and" at the end of clause (xxii) thereof, (ii) deleting the
"." at the end of clause (xxiii) thereof and substituting therefor "; and", and
(iii) adding at the end thereof the following new clause (xxiv):
"(xxiv) On or before September 30, 2003, Borrowers shall have
delivered to Agents (A) projected financial statements for Company and
its Subsidiaries for the fourth Fiscal Quarter of 2003 and the first
Fiscal Quarter of 2004, such projected financial statements to (i) be
prepared on a consolidated and consolidating basis in accordance with
GAAP, (ii) be in form and substance reasonably satisfactory to Agents,
and (iii) contain projections of cash flows for each such period and
such other financial information and projections for such periods as
Agents may reasonably request, and (B) a supplement to the Minimum
Cumulative Consolidated Operating Income Schedule satisfactory in form
and substance to Agents.".
1.4 Provisions Relating to Negative Covenants.
A. Subsection 7.2A of the Credit Agreement is hereby amended by
(i) deleting the "and" at the end of clause (x) thereof, (ii) deleting the "."
at the end of clause (xi) thereof and substituting therefor "; and", and (iii)
adding at the end thereof the following new clause (xii):
"(xii) Company and Covanta Onondaga may enter into an
agreement to grant the Onondaga Project Restructuring Liens, so long as
(a) such agreement is entered into concurrently with the consummation
of the Onondaga Project Restructuring and (b) the Onondaga Project
Restructuring Conditions are satisfied.".
B. Subsection 7.4 of the Credit Agreement is hereby further
amended by (i) deleting the "and" at the end of clause (vi) thereof, (ii)
deleting the "." at the end of clause (vii) thereof and substituting therefor ";
and", and (iii) adding at the end thereof the following new clause (viii):
"(viii) Company may become and remain liable with respect to
the Onondaga Project Guaranty concurrently with the consummation of the
Onondaga Project Restructuring, so long as the Onondaga Project
Restructuring Conditions are satisfied.".
C. Subsection 7.14A of the Credit Agreement is hereby amended by
adding immediately after the end of the last sentence thereof the following new
sentence:
"Nothing in this subsection 7.14A shall prohibit Company and
its Subsidiaries from consummating the Onondaga Project Restructuring,
so long as the Onondaga Project Restructuring Conditions are
satisfied.".
1.5 Provisions Relating to Events of Default.
A. Subsection 8.6 of the Credit Agreement is hereby amended by
inserting immediately prior to the ")" at the end of the last parenthetical
phrase contained therein the following:
"; and provided, further, however, that neither the consummation of the
Onondaga Project Restructuring nor the filing of any motion,
application or other petition to effect any order or consent to
consummate the Onondaga Project Restructuring shall constitute an Event
of Default under this subsection 8.6 so long as the Onondaga Project
Restructuring Conditions are satisfied".
B. Subsection 8.15 of the Credit Agreement is hereby amended by
inserting immediately prior to the ")" at the end of the last parenthetical
phrase contained therein the following:
"; and provided, further, however, that the consummation of the
Onondaga Project Restructuring shall not constitute an Event of Default
under this subsection 8.15 so long as the Onondaga Project
Restructuring Conditions are satisfied".
1.6 Exhibits to the Credit Agreement.
Exhibit XVI to the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor a new Exhibit XVI, in the
form attached hereto as Annex A.
1.7 Limited Consents.
A. The undersigned Lenders hereby consent to extending the Stated
Maturity Date to April 1, 2004, as requested by Company and as reflected in this
Amendment. The consent set forth in this paragraph shall be limited precisely as
written and is provided solely for the purpose of permitting the aforementioned
extension of the Stated Maturity Date, and this consent does not constitute, nor
should it be construed as, a consent to any other extension of the Stated
Maturity Date in any other instance, or as a waiver of compliance by Borrowers
with respect to any term, provision or condition of the Credit Agreement or any
other instrument or agreement referred to therein.
B. The undersigned Lenders hereby ratify, confirm and approve all
actions taken by Administrative Agent and Issuing Lenders to extend or permit
the extension of the Tranche A Letters of Credit and Tranche B Letters of Credit
described on Annex C attached hereto to the respective dates set forth on such
Annex. The ratification, confirmation and approval set forth in this paragraph
shall be limited precisely as written, and this ratification, confirmation and
approval does not constitute, nor should it be construed as, a waiver of
compliance by Borrowers or Lenders with respect to (i) subsection 3.1A(i) or
3.1A(ii) of the Credit Agreement except to the extent of the extensions
expressly ratified, confirmed and approved in this paragraph, (ii) subsection
3.1A(i) or 3.1A(ii) of the Credit Agreement in any other instance, or (iii) any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein.
C. Each of the undersigned Lenders hereby approves of and
consents to the Company's application to the Bankruptcy Court for authority to
make an amendment to the Final Borrowing Order to release existing escrowed
partnership distributions of Covanta Onondaga in connection with the Onondaga
Project Restructuring. The consent set forth in this paragraph shall be limited
precisely as written, and this consent does not constitute, nor should it be
construed as, a consent to any other application to amend, modify or waive any
provision of the Final Borrowing Order in any other instance, or as a waiver of
compliance by Borrowers with respect to any term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to therein.
D. Nothing herein shall be deemed to prejudice any right, remedy
or privilege that any Agent or any Lender may now have or may have in the future
under or in connection with the Credit Agreement or the Amended Agreement (as
defined below).
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Amendment
and to amend the Credit Agreement in the manner provided herein, Borrowers
represent and warrant to each Lender that the following statements are true,
correct and complete:
2.1 Corporate Power and Authority. Subject to compliance with
the Final Borrowing Order and any applicable provisions of the Bankruptcy Code,
each Loan Party has all requisite corporate power and authority to enter into
this Amendment and to carry out the transactions contemplated by, and perform
its obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary corporate action on the part
of each Loan Party and the performance of the Amended Agreement has been duly
authorized by all necessary corporate action on the part of each Loan Party.
2.3 No Conflict. The execution and delivery by each Loan Party of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, the Organizational
Documents of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other Government Authority binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation
(which Contractual Obligation is enforceable on a post-Petition Date basis) of
Company or any of its Subsidiaries or an applicable order of the Bankruptcy
Court, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Company or any of its Subsidiaries, or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of Company or any of its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each Loan
Party of this Amendment and the performance by each Loan Party of the Amended
Agreement do not and will not require any Governmental Authorization.
2.5 Binding Obligation. This Amendment has been duly executed and
delivered by each Loan Party, and each of this Amendment and the Amended
Agreement is the legally valid and binding obligations of each Loan Party
enforceable against each Loan Party in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Ninth Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
2.7 Notice to Committee. Notice of this Amendment has been given to and
received by counsel to the official committee of unsecured creditors in the
Chapter 11 Cases and the informal committee of holders of Company's 9.25%
Debentures.
2.8 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
Each Borrower and Subsidiary Guarantor hereby (i) acknowledges
that such Loan Party has read this Amendment and consents to the terms hereof
and hereby confirms and agrees that, notwithstanding the effectiveness of this
Amendment, the obligations of such Loan Party under each of the Loan Documents
to which such Loan Party is a party shall not be impaired and each of the Loan
Documents to which such Loan Party is a party are, and shall continue to be, in
full force and effect and are hereby confirmed and ratified in all respects,
(ii) ratifies and confirms the effectiveness of the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment and the Eighth Amendment in all respects,
and (iii) confirms that the provisions of the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment and the Eighth Amendment are binding on
each of the Borrowers.
SECTION 4. MISCELLANEOUS
4.1 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
A. On and after the Ninth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended by this Amendment.
B. Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment
shall not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or any Lender under, the Credit Agreement or
any of the other Loan Documents.
4.2 Fees and Expenses. Each Borrower acknowledges that all costs, fees
and expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent, Documentation Agent or the Lenders and their respective
counsel (including, without limitation, O'Melveny & Xxxxx LLP and Ernst & Young
Corporate Finance LLC) with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrowers.
4.3 Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
4.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.5 Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the first date on
which all of the following conditions precedent shall have been satisfied (the
date of satisfaction of such conditions being referred to herein as the "Ninth
Amendment Effective Date"): (i) Borrower, each Subsidiary Guarantor, and Lenders
constituting Requisite Lenders and Supermajority Tranche A Lenders shall have
each executed a counterpart hereof; (ii) Company and Administrative Agent shall
have received written or telephonic notification of such execution and
authorization of delivery of such counterparts; and (iii) Company shall have
paid in full all outstanding statements for fees and expenses of O'Melveny &
Xxxxx LLP and Ernst & Young Corporate Finance LLC, to the extent submitted to
Company prior to 5:00 p.m. (New York City time) on September 12, 2003.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
COVANTA ENERGY CORPORATION
By:
--------------------------------------
Xxxxx Xxxxxx
Authorized Officer
Each of the entities named on Schedule A annexed
hereto, as Borrowers
By:
--------------------------------------
Xxxxxxx Xxxxxxx
Authorized Officer
Each of the entities named on Schedule B annexed
hereto, as Borrowers
By:
--------------------------------------
Xxxxx Xxxxxx
Authorized Officer
SUBSIDIARY GUARANTORS:
Each of the entities named on Schedule C annexed
hereto, as Subsidiary Guarantors
By:
--------------------------------------
Xxxxxxx Xxxxxxx
Authorized Officer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent and Co-Arranger and as a
Lender
By:
--------------------------------------
Xxxxx Xx
Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent and Co-Arranger and as a
Lender
By:
--------------------------------------
Xxxxx X. Xxxxx
Director
By:
--------------------------------------
Xxxx X. Xxxxx, Managing Director
Head of Workout
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
--------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By:
--------------------------------------
Name:
Title:
HSBC BANK USA,
as a Lender
By:
--------------------------------------
Name:
Title:
IIB BANK LTD, IFSC BRANCH,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank),
as a Lender
By:
--------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
XXXXXXX XXXXX, XXXXXX & XXXXX, INCORPORATED,
as a Lender
By:
--------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC, as
Agent for BANK OF AMERICA, N.A., as a Lender
By:
--------------------------------------
Name:
Title:
SPECIAL SITUATIONS INVESTING GROUP,
as a Lender
By:
--------------------------------------
Name:
Title:
SUNTRUST BANK,
as a Lender
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By:
--------------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
(formerly known as Firstar Bank, N.A.),
as a Lender
By:
--------------------------------------
Name:
Title:
WESTLB AG (formerly known as Westdeutsche Landesbank
Girozentrale), NEW YORK BRANCH, as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BEAR XXXXXXX & CO. INC.,
as a Lender
By:
--------------------------------------
Name:
Title:
Schedule A
Other Borrowers
1. AMOR 14 Corp.
2. Covanta Acquisition, Inc.
3. Covanta Alexandria/Arlington, Inc.
4. Covanta Babylon, Inc. 5. Covanta Bessemer, Inc.
6. Covanta Bristol, Inc.
7. Covanta Xxxxxxxxxx Environmental Support, Inc.
8. Covanta Energy Americas, Inc.
9. Covanta Energy Construction, Inc.
10. Covanta Energy Resource Corp.
11. Covanta Energy Sao Xxxxxxxx, Inc.
12. Covanta Energy Services, Inc.
13. Covanta Energy West, Inc.
14. Covanta Engineering Services, Inc.
15. Covanta Fairfax, Inc.
16. Covanta Financial Services, Inc.
17. Covanta Geothermal Operations Holdings, Inc.
18. Covanta Geothermal Operations, Inc.
19. Covanta Heber Field Energy, Inc.
20. Covanta Hennepin Energy Resource Co., L.P.
21. Covanta Hillsborough, Inc.
22. Covanta Honolulu Resource Recovery Venture
23. Covanta Huntington Limited Partnership
24. Covanta Huntington Resource Recovery One Corp.
25. Covanta Huntington Resource Recovery Seven Corp.
26. Covanta Huntington, Inc.
27. Covanta Huntsville, Inc.
28. Covanta Hydro Energy, Inc.
29. Covanta Hydro Operations West, Inc.
30. Covanta Hydro Operations, Inc.
31. Covanta Imperial Power Services, Inc.
32. Covanta Indianapolis, Inc.
33. Covanta Kent, Inc.
34. Covanta Key Largo, Inc.
35. Covanta Lake, Inc.
36. Covanta Lancaster, Inc.
37. Covanta Xxx, Inc.
38. Covanta Long Island, Inc.
39. Covanta Xxxxxx Land Corp.
40. Covanta Xxxxxx, Inc.
41. Covanta Mid-Conn., Inc.
42. Covanta Xxxxxxxxxx, Inc.
43. Covanta New Martinsville Hydro-Operations Corp.
44. Covanta Northwest Puerto Rico, Inc.
45. Covanta Oahu Waste Energy Recovery, Inc.
46. Covanta Oil & Gas, Inc.
47. Covanta Onondaga Five Corp.
48. Covanta Onondaga Four Corp.
49. Covanta Onondaga Limited Partnership
50. Covanta Onondaga Operations, Inc.
51. Covanta Onondaga Three Corp.
52. Covanta Onondaga Two Corp.
53. Covanta Onondaga, Inc.
54. Xxxxx Services Corporation
55. Covanta Operations of Union LLC
56. Covanta OPW Associates, Inc.
57. Covanta OPWH, Inc.
58. Covanta Pasco, Inc.
59. Covanta Plant Services of New Jersey, Inc.
60. Covanta Power Development of Bolivia, Inc.
61. Covanta Power Development, Inc.
62. Covanta Power Equity Corp.
63. Covanta Projects of Hawaii, Inc.
64. Covanta Projects of Wallingford, LP
65. Covanta RRS Holdings, Inc.
66. Covanta Secure Services USA, Inc.
67. Covanta Secure Services, Inc.
68. Covanta SIGC Energy II, Inc.
69. Covanta SIGC Energy, Inc.
70. Covanta SIGC Geothermal Operations, Inc.
71. Covanta Stanislaus, Inc.
72. Covanta Systems, Inc.
73. Covanta Tampa Bay, Inc.
74. Covanta Tulsa, Inc.
75. Covanta Union, Inc.
76. Covanta Wallingford Associates, Inc.
77. Covanta Xxxxxx Energy Resources Co., LP
78. Covanta Waste Solutions, Inc.
79. Covanta Waste to Energy of Italy, Inc.
80. Covanta Waste to Energy, Inc.
81. Covanta Water Holdings, Inc.
82. Covanta Water Systems, Inc.
83. Covanta Water Treatment Services, Inc.
84. DSS Environmental, Inc.
85. ERC Energy II, Inc.
86. ERC Energy, Inc.
87. Heber Field Company
88. Heber Field Energy II, Inc.
89. Heber Geothermal Company
90. Heber Loan Partners
91. Xxxxx Environmental & Energy Services Co., Inc.
92. OPI Quezon, Inc.
93. Second Imperial Geothermal Co., L.P.
94. Three Mountain Operations, Inc.
95. Three Mountain Power LLC
Schedule B
Other Borrowers
1. Alpine Food Products, Inc.
2. BDC Liquidating Corp.
3. Xxxxxxx Development Corp.
4. Covanta Energy Group, Inc.
5. Covanta Energy International, Inc.
6. Covanta Equity of Alexandria/Arlington, Inc.
7. Covanta Equity of Stanislaus, Inc.
8. Covanta Power International Holdings, Inc.
9. Covanta Projects, Inc.
10. Doggie Diner, Inc.
11. Gulf Coast Catering Company, Inc.
12. J.R. Jacks Construction Corp.
13. Lenzar Electro-Optics, Inc.
14. Logistics Operations, Inc.
15. Offshore Food Service, Inc.
16. OFS Equity of Alexandria/Arlington, Inc.
17. OFS Equity of Babylon, Inc.
18. OFS Equity of Delaware, Inc.
19. OFS Equity of Huntington, Inc.
20. OFS Equity of Indianapolis, Inc.
21. OFS Equity of Stanislaus, Inc.
22. Xxxxx Allied Abatement & Decontamination Service, Inc.
23. Xxxxx Allied Maintenance Corp.
24. Xxxxx Allied Payroll Services, Inc.
25. Xxxxx Attractions, Inc.
26. Xxxxx Aviation Distributing Corp.
27. Xxxxx Aviation Fueling Company of Virginia, Inc.
28. Xxxxx Aviation Security Services of Indiana, Inc.
29. Xxxxx Aviation Service Company of Colorado, Inc.
30. Xxxxx Aviation Service Company of Pennsylvania, Inc.
31. Xxxxx Aviation Service International Corporation
32. Xxxxx Aviation Terminal Services, Inc.
33. Xxxxx Aviation, Inc.
34. Xxxxx Cargo Spain, Inc.
35. Xxxxx Central and South America, Inc.
36. Xxxxx Cisco, Inc.
37. Xxxxx Communications, Inc. 38. Xxxxx Constructors, Inc.
39. Xxxxx Facility Holdings, Inc.
40. Xxxxx Facility Management Corporation of Anaheim
41. Xxxxx Facility Management Corporation of West Virginia
42. Xxxxx Film and Theatre, Inc.
43. Xxxxx Firehole Entertainment Corp.
44. Xxxxx Food Service Corporation of Milwaukee, Inc.
45. Xxxxx International Europe, Inc.
46. Xxxxx Leisure, Inc.
47. Xxxxx Management Services, Inc.
48. Xxxxx New York Services, Inc.
49. Xxxxx Pipeline Service Corporation
50. Xxxxx Support Services, Inc.
51. Xxxxx Technology Services Corporation
52. Xxxxx Transition Corporation
53. PA Aviation Fuel Holdings, Inc.
54. Philadelphia Fuel Facilities Corporation
Schedule C
Subsidiary Guarantors
1. Covanta Haverhill Properties, Inc.
2. Covanta Haverhill, Inc.
3. Covanta Omega Lease, Inc.
4. Haverhill Power, Inc.
5. LMI, Inc.
6. Michigan Waste Energy, Inc.
Annex A
Exhibit XVI
See attached.
Annex B
Onondaga Project Restructuring
See attached.
Annex C
Extension of Tranche A Letters of Credit and Tranche B Letters of Credit
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Current Extended
Expiration Expiration
Project/Purpose Type Amount Date Date Issuing Lender Tranche
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Workers Compensation Standby $7,520,423.00 10/1/03 3/31/04 DKB (to be extended B
by Bank of America)
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Workers Compensation Standby $14,951,617.00 10/1/03 3/31/04 DKB (to be extended B
by Bank of America)
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Fairfax Performance $900,000.00 09/30/03 3/31/04 SunTrust B
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Hennepin Step-Up Standby $1,491,839.06 9/30/03 3/31/04 Bank of America A
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Workers' Compensation Standby $2,600,000.00 9/30/03 3/31/04 Bank of America A
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Haripur Standby $676,500.00 9/30/03 3/31/04 Bank of America A
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