1
EXHIBIT A TO THE AMENDMENT AGREEMENT
------------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 5, 1997,
among
ALLIED WASTE NORTH AMERICA, INC.,
ALLIED WASTE INDUSTRIES, INC.,
THE LENDERS REFERRED TO HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Swingline Lender, Issuing Bank, Administrative Agent
and Collateral Agent
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Syndication Agent
and
CITIBANK, N.A.,
as Documentation Agent
------------------------------------------------------------------------------
[CS&M Ref. No. 5865-017]
2
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms....................................................................2
SECTION 1.02. Terms Generally.................................................................22
ARTICLE II
The Credits
SECTION 2.01. Commitments......................................................................23
SECTION 2.02. Loans............................................................................23
SECTION 2.03. Borrowing Procedure..............................................................25
SECTION 2.04. Evidence of Debt; Repayment of Loans.............................................25
SECTION 2.05. Fees.............................................................................26
SECTION 2.06. Interest on Loans................................................................27
SECTION 2.07. Default Interest.................................................................27
SECTION 2.08. Alternate Rate of Interest.......................................................27
SECTION 2.09. Termination and Reduction of Commitments.........................................28
SECTION 2.10. Conversion and Continuation of Borrowings........................................28
SECTION 2.11. Repayment of Term Borrowings.....................................................29
SECTION 2.12. Optional Prepayments.............................................................31
SECTION 2.13. Mandatory Prepayments............................................................31
SECTION 2.14. Reserve Requirements; Change in Circumstances....................................33
SECTION 2.15. Change in Legality...............................................................34
SECTION 2.16. Indemnity........................................................................35
SECTION 2.17. Pro Rata Treatment...............................................................35
SECTION 2.18. Sharing of Setoffs...............................................................36
SECTION 2.19. Payments.........................................................................36
SECTION 2.20. Taxes............................................................................36
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.....................................38
SECTION 2.22. Swingline Loans..................................................................39
SECTION 2.23. Letters of Credit................................................................41
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................................45
3
Contents, p. 2
SECTION 3.02. Authorization....................................................................45
SECTION 3.03. Enforceability...................................................................45
SECTION 3.04. Governmental Approvals...........................................................46
SECTION 3.05. Financial Statements.............................................................46
SECTION 3.06. No Material Adverse Change.......................................................46
SECTION 3.07. Title to Properties; Possession Under Leases.....................................46
SECTION 3.08. Subsidiaries.....................................................................46
SECTION 3.09. Litigation; Compliance with Laws.................................................46
SECTION 3.10. Agreements.......................................................................47
SECTION 3.11. Federal Reserve Regulations......................................................47
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act.................................................47
SECTION 3.13. Use of Proceeds..................................................................47
SECTION 3.14. Tax Returns......................................................................47
SECTION 3.15. No Material Misstatements........................................................47
SECTION 3.16. Employee Benefit Plans...........................................................48
SECTION 3.17. Environmental Matters............................................................48
SECTION 3.18. Insurance........................................................................49
SECTION 3.19. Security Documents...............................................................49
SECTION 3.20. Labor Matters....................................................................49
SECTION 3.21. Solvency.........................................................................50
ARTICLE IV
Conditions of Lending
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties.............................................51
SECTION 5.02. Insurance........................................................................51
SECTION 5.03. Obligations and Taxes............................................................52
SECTION 5.04. Financial Statements, Reports, etc...............................................52
SECTION 5.05. Litigation and Other Notices.....................................................53
SECTION 5.06. Employee Benefits................................................................54
SECTION 5.07. Maintaining Records; Access to Properties and Inspections........................54
SECTION 5.08. Use of Proceeds..................................................................54
SECTION 5.09. Environmental Laws...............................................................54
SECTION 5.10. Preparation of Environmental Reports.............................................55
SECTION 5.11. Further Assurances...............................................................55
SECTION 5.12. Compliance with Terms of Leaseholds..............................................55
SECTION 5.13. Performance of Material Agreements...............................................56
SECTION 5.14. Senior Convertible Debentures....................................................56
SECTION 5.15. Concentration and Disbursement Accounts..........................................56
4
Contents, p. 3
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.....................................................................57
SECTION 6.02. Liens............................................................................59
SECTION 6.03. No Other Negative Pledge.........................................................60
SECTION 6.04. Sale and Lease-Back Transactions.................................................60
SECTION 6.05. Investments, Loans and Advances..................................................61
SECTION 6.06. Mergers, Consolidations, Sales of Assets and Acquisitions........................62
SECTION 6.07. Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay Dividends....................................63
SECTION 6.08. Transactions with Affiliates.....................................................63
SECTION 6.09. Business of Allied, Borrower, Allied Finance and Subsidiaries....................64
SECTION 6.10. Other Indebtedness and Agreements................................................64
SECTION 6.11. Capital Expenditures.............................................................65
SECTION 6.12. Fixed Charge Coverage Ratio......................................................65
SECTION 6.13. Leverage Ratio...................................................................65
SECTION 6.14. Senior Debt Ratio................................................................66
SECTION 6.15. Interest Expense Coverage Ratio..................................................66
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent, the Syndication Agent,
the Documentation Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..........................................................................71
SECTION 9.02. Survival of Agreement............................................................71
SECTION 9.03. Binding Effect...................................................................72
SECTION 9.04. Successors and Assigns...........................................................72
SECTION 9.05. Expenses; Indemnity..............................................................74
SECTION 9.06. Right of Setoff..................................................................75
SECTION 9.07. APPLICABLE LAW...................................................................76
SECTION 9.08. Waivers; Amendment...............................................................76
SECTION 9.09. Interest Rate Limitation.........................................................77
SECTION 9.10. Entire Agreement.................................................................77
SECTION 9.11. WAIVER OF JURY TRIAL.............................................................77
5
Contents, p. 4
SECTION 9.12. Severability.....................................................................77
SECTION 9.13. Counterparts.....................................................................78
SECTION 9.14. Headings.........................................................................78
SECTION 9.15. Jurisdiction; Consent to Service of Process......................................78
SECTION 9.16. Confidentiality..................................................................78
SECTION 9.17. Modification of Existing Credit Agreement........................................79
Exhibits and Schedules
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Allied Finance Guarantee Agreement
Exhibit C Form of Allied Finance Pledge Agreement
Exhibit D Form of Allied Guarantee Agreement
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Borrowing Request
Exhibit G Form of Indemnity, Subrogation and Contribution Agreement
Exhibit H Form of Pledge Agreement
Exhibit I Form of Security Agreement
Exhibit J Form of Subsidiary Guarantee Agreement
Exhibit K-1 Form of Opinion of Xxxxxx & Xxxxxx, L.L.P., counsel for Allied,
the Borrower and the Subsidiaries
Exhibit K-2 Form of Opinion of Xxxxxx X. Xxxxx, Esq., internal counsel for Allied,
the Borrower and the Subsidiaries
Exhibit L Form of Subordination Provisions
Exhibit M Amendment Certificate
Schedule 1.01(a) Back-up Letters of Credit
Schedule 1.01(b) Existing Letters of Credit
Schedule 1.01(c) Subsidiary Guarantors
Schedule 2.01 Lenders
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 4.02(p) Existing Preferred Stock
Schedule 6.01(a) Indebtedness
Schedule 6.02(a) Liens
6
CREDIT AGREEMENT dated as of June 5, 1997,
among ALLIED WASTE NORTH AMERICA, INC. (formerly
known as Allied Holdings (United States), Inc.), a
Delaware corporation (the "Borrower"), ALLIED WASTE
INDUSTRIES, INC., a Delaware corporation ("Allied"),
the Lenders (as defined in Article I), CREDIT SUISSE
FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as
swingline lender (in such capacity, the "Swingline
Lender"), as issuing bank (in such capacity, the
"Issuing Bank"), as administrative agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent") for the Lenders XXXXXXX XXXXX CREDIT PARTNERS
L.P., a New York limited partnership, as syndication
agent (in such capacity, the "Syndication Agent") for
the Lenders, and CITIBANK, N.A., a national banking
association, as documentation agent (in such
capacity, the "Documentation Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the form of
(a) Term Loans (such term and each other capitalized term used but not defined
herein having the meaning given it in Article I) on the Closing Date, in an
aggregate principal amount of $500,000,000 and (b) Revolving Loans at any time
and from time to time prior to the Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $400,000,000. The Borrower has
requested the Swingline Lender to extend credit, at any time and from time to
time prior to the Maturity Date, in the form of Swingline Loans in an aggregate
principal amount at any time outstanding not in excess of $50,000,000. The
Borrower has requested the Issuing Bank to issue letters of credit, in an
aggregate face amount at any time outstanding not in excess of $175,000,000 to
support payment obligations incurred in the ordinary course of business by the
Borrower and the Subsidiaries, and to provide financial assurance as required by
regulators for Allied's, the Borrower's and the Subsidiaries' closure and
post-closure obligations.
On the Restatement Closing Date, the proceeds of the Term Loans are to
be used solely to refinance the principal of, and to pay all interest, fees and
other amounts payable in respect of, the outstanding AXELs Loans under the
Existing Credit Agreement in accordance with the Amendment Agreement. The
proceeds of the Revolving Loans and the Swingline Loans are to be used solely
for general corporate purposes (including to finance capital expenditures and
acquisitions permitted under this Agreement and the Canada Debenture
Refinancing).
The Lenders and the Swingline Lender are willing to extend such credit
to the Borrower and the Issuing Bank is willing to issue letters of credit for
the account of Allied, the Borrower and the
7
2
Subsidiaries 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 shall have the meanings specified below:
"Account Parties" shall mean (a) the Borrower, (b) Allied and (c) each
other Subsidiary of the Borrower on whose behalf a Letter of Credit is requested
pursuant to Section 2.23.
"Accounts" shall have the meaning assigned to such term in the Security
Agreement.
"Acquired Business" shall mean (a) any person at least a majority of
the capital stock of which is acquired on or after January 1, 1997, by the
Borrower or a wholly owned subsidiary of the Borrower and (b) any assets
constituting a discrete business or operating unit acquired on or after January
1, 1997, by the Borrower or a wholly owned subsidiary of the Borrower.
"Acquired Entity" shall have the meaning assigned to such term in
Section 6.05(j).
"Acquired Indebtedness" shall have the meaning assigned to such term in
Section 6.01(d).
"Acquired Revenues" shall mean, with respect to any period, the
revenues attributable to Acquired Businesses during such period; provided that,
in the event the Borrower acquires, directly or indirectly, less than all the
capital stock of an Acquired Business, only the percentage of revenues of such
Acquired Business attributable to the Borrower's interest in such Acquired
Business shall be deemed "Acquired Revenues" for purposes of this Agreement.
"Additional Facility Amount" shall mean $142,000,000 or such amount as
may be adjusted in accordance with Section 9.08(c).
"Additional Facility Loan" shall mean any Revolving Loan made in
reliance upon Section 1008(ix) of the Senior Subordinated Notes Indenture, as
set forth in the applicable Borrowing Request.
"Adjusted LIBO Rate" shall mean, 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 the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
8
3
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Allied Canada" shall mean Allied Waste Holdings (Canada) Ltd., a
Canadian corporation and a wholly owned subsidiary of the Borrower.
"Allied Canada Debentures" shall mean the Allied Canada Junior
Debenture and the Allied Canada Zero Debenture.
"Allied Canada Junior Debenture" shall mean the 7% Junior Subordinated
Debenture due 2008 of Allied Canada held by Allied Finance issued on December
30, 1996, in an aggregate principal amount of $150,000,000.
"Allied Canada Zero Debenture" shall mean the Zero Coupon Junior
Subordinated Debenture due 2008 of Allied Canada held by Allied Finance issued
on December 30, 1996, in an aggregate principal amount of $168,300,000.
"Allied Finance" shall mean Allied Waste Finance (Canada) Ltd., a
Canadian corporation and wholly owned Subsidiary of Allied.
"Allied Finance Guarantee Agreement" shall mean the Allied Finance
Amended and Restated Guarantee Agreement substantially in the form of Exhibit B,
given by Allied Finance in favor of the Collateral Agent for the benefit of the
Secured Parties.
"Allied Finance Pledge Agreement" shall mean the Allied Finance Amended
and Restated Pledge Agreement substantially in the form of Exhibit C, between
Allied Finance and the Collateral Agent for the benefit of the Secured Parties.
"Allied Guarantee Agreement" shall mean the Allied Amended and Restated
Guarantee Agreement, substantially in the form of Exhibit D, made by Allied in
favor of the Collateral Agent for the benefit of the Secured Parties.
"Allied Senior Notes" shall mean the 11.30% Senior Discount Notes due
2007 of Allied in an aggregate principal amount at maturity of $418,000,000.
"Amendment Agreement" shall mean the Amendment Agreement dated as of
June 5, 1997, among the Borrower, Allied, the Lenders, the Departing Lenders (as
defined therein), the Administrative Agent, the Syndication Agent and the
Documentation Agent.
"Amendment Certificate" shall mean the certificate of Allied, signed by
a Financial Officer, substantially in the form of Exhibit M.
"Applicable Percentage" shall mean, for any day, with respect to (a)
any Eurodollar Term Loans, Eurodollar Revolving Loans or L/C Participation Fees,
(b) any Base Rate Term Loans or Base
9
4
Rate Revolving Loans or (c) the Commitment Fees, as the case may be, the
applicable percentage set forth below under the caption (i) "Eurodollar Spread",
(ii) "Base Rate Spread" or (iii) "Fee Percentage", respectively, based upon the
Leverage Ratio as of the relevant date of determination:
Eurodollar Base Rate Fee
Leverage Ratio Spread Spread Percentage
-------------- ------ ------ ----------
Category 1
Greater than or equal
to 4.50 to 1.00 1.75% .75% .50%
Category 2
Less than 4.50 to 1.00
but greater than or
equal to 4.00 to 1.00 1.50% .50% .50%
Category 3
Less than 4.00 to 1.00
but greater than or
equal to 3.50 to 1.00 1.25% .25% .375%
Category 4
Less than 3.50 to 1.00
but greater than or
equal to 3.00 to 1.00 1.00% .00% .375%
Category 5
Less than 3.00 to 1.00 .75% .00% .250%
In addition, if on any date of determination, the Senior Debt Ratio is
greater than 2.50 to 1.00, the Eurodollar Spread and the Base Rate Spread
otherwise applicable as set forth above shall be increased by .25% for purposes
of determining Applicable Percentage. Notwithstanding the foregoing, until the
Borrower has delivered the financial statements for the fiscal quarter ending
immediately after the Closing Date, in accordance with Section 5.04(a) or (b),
the Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage. Each change in the Applicable Percentage
resulting from a change in the Leverage Ratio and, if applicable, the Senior
Debt Ratio shall be effective with respect to all Term Loans, all Revolving
Loans, all Letters of Credit outstanding and Commitment Fees on and after the
date the financial statements and certificates required by Section 5.04(a) or
(b) indicating such change are delivered to the Administrative Agent until the
date immediately preceding the next date such financial statements and
certificates indicating another such change are delivered to the Administrative
Agent. Notwithstanding the foregoing, (a) at any time during which the Borrower
has failed to deliver the financial statements and certificates required by
Section 5.04(a) or (b), or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Category 1 for purposes of determining the Applicable Percentage.
10
5
"Asset Sale" shall mean the sale, lease, transfer or other disposition
in one transaction or a series of related transactions (by way of merger or
otherwise but excluding a sale in connection with a sale and leaseback
transaction) by Allied, the Borrower or any of the Subsidiaries to any person
other than Allied, the Borrower or any wholly owned Subsidiary of (a) any
capital stock of any of the Subsidiaries or (b) any other assets of Allied, the
Borrower or any of the Subsidiaries (other than inventory, obsolete or worn out
assets, scrap, Permitted Investments and cash and cash equivalents, in each case
disposed of in the ordinary course of business for fair value), except for (i)
the sale of Specialized Waste, (ii) sales, leases, transfers or other
dispositions in one transaction or a series of related transactions during any
fiscal year having an aggregate value not in excess of $2,500,000 and (iii) any
substantially contemporaneous exchange (including by way of a substantially
contemporaneous purchase and sale) of discrete assets of Allied, the Borrower or
any Subsidiary for one or more other assets used for similar purposes, in each
case to the extent that the amount of net cash proceeds received by Allied, the
Borrower or any Subsidiary as consideration in connection with such exchange
sale do not exceed amounts paid by the Borrower, Allied or any Subsidiary with
respect to such exchange purchase, provided that Allied, the Borrower or such
Subsidiary complies with Section 5.11 with respect to the property received by
Allied, the Borrower or such Subsidiary pursuant to such exchange.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit E or such other form as shall be approved by the
Administrative Agent.
"AXELs Loans" shall have the meaning assigned to such term in the
Existing Credit Agreement.
"Back-up Letter of Credit" shall mean any Letter of Credit issued to
support any letter of credit that (a) exists on the Closing Date and (b) is set
forth on Schedule 1.01(a).
"Bank Facility Amount" shall mean $258,000,000 or such amount as may be
adjusted in accordance with Section 9.08(c).
"Bank Facility Loan" shall mean any Revolving Loan made in reliance
upon Section 1008(i) of Senior Subordinated Notes Indenture, as set forth on the
applicable Borrowing Request.
"Base Rate" shall mean, for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) 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%. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms of the definition thereof, the Base Rate shall be
determined without regard to clause (b), of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively. The term "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as being effective. The term "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates
11
6
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 of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Base Rate Borrowing" shall mean a Borrowing comprised of Base Rate
Loans.
"Base Rate Loan" shall mean any Base Rate Term Loan or Base Rate
Revolving Loan.
"Base Rate Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Base Rate in accordance with
the provisions of Article II.
"Base Rate Term Borrowing" shall mean a Borrowing comprised of Base
Rate Term Loans.
"Base Rate Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Base Rate in accordance with the provisions
of Article II.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit F.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, 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.
"Canada Debenture Refinancing" shall mean (a) the repayment by the
Borrower with the proceeds of a Revolving Loan of certain intercompany advances
made to the Borrower by Allied Canada in an aggregate principal amount not to
exceed $330,000,000 and (b) the repayment of the Allied Canada Debentures by
Allied Canada with the proceeds from the repayment of the advances described in
clause (a) above; provided, however, that no later than three Business Days
following the date such Revolving Loan is borrowed, Allied, Allied Finance and
the Borrower shall cause such Revolving Loan to be repaid in full in accordance
with the Loan Documents.
"Capital Expenditures" shall mean, for any period, the aggregate amount
of all expenditures (whether paid in cash or other consideration or accrued as a
liability) by Allied, the Borrower and its Subsidiaries during such period that,
in accordance with GAAP, are or should be included in "additions to property,
plant or equipment" or similar items reflected in the consolidated statement of
cash flows of Allied, the Borrower and its Subsidiaries for such period;
provided, however, that Capital Expenditures shall not include (i) expenditures
made to consummate the Transactions, (ii) expenditures classified as a Permitted
Acquisition or (iii) expenditures made by an Acquired Entity
12
7
prior to the time such Acquired Entity was acquired by the Borrower or any
Subsidiary pursuant to a Permitted Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other similar 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.
"Casualty Event" shall mean an event pursuant to which Allied, the
Borrower or any of the Subsidiaries has the right to collect insurance proceeds
under any insurance policies with respect to any insured casualty or other
insured damage to any property of Allied, the Borrower or any of the
Subsidiaries.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 promulgated under the
Securities Exchange Act of 1934 as in effect on the date hereof) shall have
acquired directly or indirectly, beneficial ownership of shares representing
more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of Allied; (b) a majority of the seats (other than
vacant seats) on the board of directors of Allied shall at any time be occupied
by persons who were neither (i) nominated by the board of directors of Allied,
nor (ii) appointed by directors so nominated; (c) any change in control (or
similar event, however denominated) with respect to Allied shall occur under and
as defined in any indenture or agreement in respect of Indebtedness in an
aggregate principal amount in excess of $10,000,000 (so long as the aggregate
amount of individual items of Indebtedness less than $10,000,000 with respect to
which any change of control event has occurred does not exceed in the aggregate
$25,000,000) to which Allied, the Borrower or any Subsidiary is a party; or (d)
Allied shall cease to own and control, directly, beneficially and of record,
100% of the outstanding capital stock of the Borrower or Allied Finance, free
and clear of all Liens (other than Liens under the Loan Documents).
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Condemnation Event" shall mean an event pursuant to which Allied, the
Borrower or any of the Subsidiaries has the right to collect and receive
proceeds as a result of any action or proceeding for the taking of any property
of Allied, the Borrower or any Subsidiary, or any part thereof or interest
therein, for public or quasi-public use under the power of eminent domain, by
reason of any public improvement or condemnation proceeding, or in any other
manner.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated April, 1997.
13
8
"Consolidated Current Assets" shall mean, at any date of determination,
all assets (other than cash and cash-equivalents) that would, in accordance with
GAAP, be classified on a consolidated balance sheet of Allied, the Borrower and
the Subsidiaries as current assets at such date of determination.
"Consolidated Current Liabilities" shall mean, at any date of
determination, all liabilities (other than, without duplication (x) the current
portion of long-term Indebtedness and (y) outstanding Swingline Loans and
Revolving Loans) that would, in accordance with GAAP, be classified on a
consolidated balance sheet of Allied, the Borrower and the Subsidiaries as
current liabilities at such date of determination.
"Consolidated EBITDA" of any person for any period shall mean
Consolidated Net Income of such person for such period, plus, without
duplication and to the extent deducted from revenues in determining such
Consolidated Net Income, the sum of (a) the aggregate amount of Consolidated
Interest Expense for such period, (b) the aggregate amount of letter of credit
fees paid during such period, (c) the aggregate amount of income tax expense for
such period, (d) all amounts attributable to depreciation and amortization for
such period, (e) all non-cash non-recurring charges during such period,
including charges for costs related to acquisitions (it being understood that
non-cash non-recurring charges shall not include accruals for closure and
post-closure liabilities and that 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), (f) all cash charges
attributable to the Transactions and (g) all non-recurring cash charges related
to acquisitions (including the acquisition contemplated by the Stock Purchase
Agreement) or financings (including amendments thereto), in each case during
such period, and minus, without duplication and to the extent included 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, the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" of any person for any period shall mean
the gross interest expense, whether expensed or capitalized (including the
interest component in respect of Capital Lease Obligations) accrued or paid by
such person and its consolidated subsidiaries during such period, minus any
interest income of such person and its consolidated subsidiaries, in each case,
as determined on a consolidated basis in accordance with GAAP; provided, that
"Consolidated Interest Expense" shall not include any interest expense accrued
and not paid in respect of the Allied Senior Notes prior to the date of the
first cash interest payment due thereunder.
"Consolidated Net Income" of any person for any period shall mean the
net income or loss of such person and its consolidated subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital" shall mean, at any date of
determination, Consolidated Current Assets at such date of determination minus
Consolidated Current Liabilities at such date of determination.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
14
9
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Designated Preferred Stock" shall mean the 7% Cumulative Convertible
Preferred Stock of Allied in existence on the Closing Date.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the threat, the
existence, or the continuation of the existence, of a Release (including sudden
or non-sudden, accidental or non-accidental Releases), (b) exposure to any
Hazardous Material, (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Sections 1251 et seq., the Clean Air Act of 1970, as amended,
42 U.S.C. Sections 7401 et seq., the Toxic Substances Control Act of 1976, 15
U.S.C. Sections 2601 et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. Sections 651 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 et seq., the Safe Drinking
Water Act of 1974, as amended, 42 U.S.C. Sections 300(f) et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 5101 et seq., and all
amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
15
10
"Equity Issuance" shall mean any issuance or sale by Allied, the
Borrower or any of their respective subsidiaries of any shares of capital stock
or other equity securities of Allied, the Borrower or any such subsidiary or any
obligations convertible into or exchangeable for, or giving any person a right,
option or warrant to acquire such securities or such convertible or exchangeable
obligations, except in each case for (a) any issuance or sale to Allied, the
Borrower or any wholly owned Subsidiary, (b) any issuance of directors'
qualifying shares, and (c) sales or issuances of common stock (i) to management
or key employees of Allied under any employee stock option or stock purchase
plan in existence from time to time or (ii) pursuant to other employee benefit
plans in existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean 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" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by 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; (h) the occurrence of a "prohibited
transaction" with respect to which the Borrower or any of its Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any such Subsidiary could otherwise be liable;
and (i) any other event or condition with respect to a Plan or Multiemployer
Plan that could reasonably be expected to result in liability of the Borrower.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
16
11
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, the excess of (a)
the sum, without duplication, of (i) Allied's Consolidated EBITDA, (ii) the net
cash proceeds received by Allied, the Borrower and its consolidated Subsidiaries
in connection with the issuance of debt or equity securities, the sale or other
disposition of assets or condemnation, casualty or other extraordinary events to
the extent not included in Allied's Consolidated EBITDA and to the extent used
for mandatory prepayments of the principal of the Loans in accordance with
Section 2.13 and (iii) an amount equal to any decrease in Consolidated Working
Capital during such fiscal year over (b) the sum, without duplication, of (i)
taxes paid or payable in cash by Allied, the Borrower and the Subsidiaries on a
consolidated basis during such fiscal year, (ii) Consolidated Interest Expense
paid in cash by Allied during such fiscal year, (iii) Capital Expenditures made
in cash and in accordance with Section 6.11 during such fiscal year, (iv)
expenditures made in cash for Permitted Acquisitions during such fiscal year to
the extent not made from the proceeds of other Indebtedness, (v) scheduled and,
in the case of purchase money Indebtedness only, mandatory principal repayments
of Indebtedness made by Allied, the Borrower and the 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
Consolidated Working Capital during such fiscal year, (viii) dividends or other
distributions made by Allied in cash that are permitted by Section 6.07, (ix) to
the extent not taken into account in determining Consolidated EBITDA, waste
disposal based royalty payments made in cash during such fiscal year by Allied,
the Borrower and the Subsidiaries, (x) an amount equal to any increase in
deferred acquisition costs and closure and post-closure obligations during such
fiscal year and (xi) extraordinary cash expenses (including extraordinary cash
expenses arising from acquisition and financing transactions) paid, if any, by
Allied, the Borrower and the Subsidiaries and not included in Allied's
Consolidated EBITDA.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the Amendment Agreement.
"Existing Letter of Credit" shall mean each Letter of Credit previously
issued for the account of Allied or a Domestic Subsidiary that (a) is
outstanding on the Closing Date and (b) is listed on Schedule 1.01(b).
"Extraordinary Amount" shall mean any cash received by or paid to or
for the account of Allied, the Borrower or the Subsidiaries consisting of tax
refunds, pension plan reversions, proceeds of insurance, including as a result
of a Casualty Event, condemnation awards, including as a result of a
Condemnation Event (and payments in lieu thereof), indemnity payments and
payments in respect of judgments (including punitive damages); provided,
however, that an Extraordinary Amount shall not include (a) cash receipts
received from proceeds of insurance, condemnation awards (or payments in lieu
thereof), indemnity payments or payments in respect of judgments or settlements
to the extent that such proceeds, awards or payments in respect of loss or
damage to equipment, fixed assets or real property are applied to replace or
repair such equipment, fixed assets or real property or to acquire other assets
in the business of the Borrower and any of its subsidiaries to the extent such
replacement, repair or acquisition is not prohibited under the terms of the Loan
Documents, so long as (i) such application is commenced within 180 days after
the later of the occurrence of such loss or damage and the receipt of such
proceeds, awards or payments in respect thereof or (ii) there is a binding
agreement in effect as of the end of such 180 day period committing Allied, the
Borrower or any such Subsidiary,
17
12
as applicable, to complete such application within a reasonable time after the
date of such agreement, (b) cash receipts received in the ordinary course of
business or (c) cash receipts received as a result of a tax refund relating to a
tax period prior to December 30, 1996 that are refunded to Xxxxxxx pursuant to
the terms of the Stock Purchase Agreement.
"Fee Letter" shall mean the Fee Letter dated April, 1997, between
Allied and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the LC Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter, the ratio of (a) the sum of (i) Allied's Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on such day and (ii) Lease
Expense for such period to (b) the sum of (i) Allied's Consolidated Interest
Expense for such period, (ii) the aggregate amount of cash taxes paid by Allied,
the Borrower and the Subsidiaries, on a consolidated basis, during such period,
(iii) Lease Expense for such period, (iv) cash dividends on capital stock
declared by Allied, the Borrower or any Subsidiary during such period (other
than any such dividend payable to Allied, the Borrower or any wholly owned
Subsidiary) and (v) principal amounts that became payable (whether or not paid
and whether at the stated maturity, by acceleration or by reason of optional
prepayment or redemption or otherwise) by Allied, the Borrower or any Subsidiary
in respect of Indebtedness of Allied, the Borrower or the Subsidiaries (other
than (x) Indebtedness refinanced with Refinancing Indebtedness or with any Loan,
(y) principal or interest payments that are paid with the common stock of Allied
or (z) principal amounts of Loans that are prepaid pursuant to paragraph (b),
(c), (d), (e) or (f) of Section 2.13) during such period.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, provincial,
municipal, local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
18
13
"Guarantee Agreements" shall mean the Allied Finance Guarantee
Agreement, the Allied Guarantee Agreement and the Subsidiary Guarantee
Agreement.
"Guarantors" shall mean Allied, Allied Finance and the Subsidiary
Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes; hazardous or toxic substances or wastes; pollutants; and
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature to the extent regulated
pursuant to any Environmental Law.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business and waste disposal based royalties),
(e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (f) all Guarantees by such person
of Indebtedness of others, (g) all Capital Lease Obligations of such person, (h)
all net payment obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements and (i) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Amended and Restated Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit G, among the Borrower, the Subsidiary
Guarantors and the Collateral Agent.
"Indenture Trustee" shall mean First Bank National Association, as
trustee under the Senior Subordinated Notes Indenture.
"Interest Expense Coverage Ratio" shall mean, as of the last day of any
fiscal quarter, the ratio of (a) Allied's Consolidated EBITDA for the period of
four consecutive fiscal quarters ended on such day to (b) Allied's Consolidated
Interest Expense for such period; provided, however, that (i) for the fiscal
quarter ended June 30, 1997, "Interest Expense Coverage Ratio" shall mean, as of
the last day of such fiscal quarter, the ratio of (x) Allied's Consolidated
EBITDA for the two fiscal quarter period ending on such date to (y) Allied's
Consolidated Interest Expense for the two fiscal quarter period ending on such
date; and (ii) for the fiscal quarter ended September 30, 1997, "Interest
Expense Coverage Ratio" shall mean, as of the last day of such fiscal quarter,
the ratio of (x) Allied's Consolidated EBITDA for the three fiscal quarter
period ending on such date to (y) Allied's Consolidated Interest Expense for the
three fiscal quarter period ending on such date.
"Interest Payment Date" shall mean, with respect to any 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
19
14
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing, and, in addition, the
date of any prepayment of such Borrowing or conversion of such Borrowing to a
Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any Base Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the last
Business Day of the next succeeding March, June, September or December, (ii) the
Maturity Date and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.10 or repaid or prepaid in
accordance with Section 2.11, 2.12 or 2.13; provided, however, that 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, in the case
of a Eurodollar Borrowing only, 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. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap,
cap or other agreement satisfactory to the Administrative Agent entered into by
the Borrower with a counterparty that, as of the date of such swap, cap or other
agreement, is a Lender (or an affiliate of a Lender) and is designed to protect
the Borrower against fluctuations in interest rates and not for speculation.
"Issuing Bank" shall mean, as the context may require, (a) (i) Credit
Suisse First Boston, with respect to Letters of Credit issued by Credit Suisse
First Boston pursuant to this Agreement, (ii) any Lender, with respect to the
applicable Letters of Credit, appointed by the Administrative Agent in
accordance with the last paragraph of Section 2.23(i) and (iii) with respect to
each Existing Letter of Credit, the issuer thereof, or (b) collectively, all the
foregoing.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Junior Exchange Indebtedness" shall mean Indebtedness of Allied, the
Borrower or any Subsidiary incurred after the Closing Date in exchange for
Designated Preferred Stock and that (i) requires no payment of principal prior
to a date that is at least one year after the Maturity Date, (ii) provides for
interest payments not to exceed the existing dividends on the Designated
Preferred Stock exchanged therefor and (iii) contains subordination language and
intercreditor provisions no more favorable to the holders thereof than the
provisions attached hereto as Exhibit L. Notwithstanding the foregoing, without
the consent of the Required Lenders, the terms of any Junior Exchange
Indebtedness shall prohibit the holders of such Indebtedness from (A) increasing
the interest payments thereof or causing the same to occur more frequently, (B)
accelerating or amending the scheduled maturity to a date earlier than scheduled
at the time of the incurrence of such Indebtedness or (C) otherwise exercising
any remedy upon any default under such Indebtedness.
"Xxxxxxx" shall mean Xxxxxxx Inc., a Canadian corporation.
"Xxxxxxx Debentures" shall mean the debentures issued by Allied Finance
to Xxxxxxx on December 30, 1996, and purchased by Allied from Xxxxxxx on May 15,
1997.
20
15
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lease Expense" shall mean, for any period, the aggregate amount of
fixed and contingent rentals payable by Allied, the Borrower and the
Subsidiaries, on a consolidated basis, for such period with respect to operating
leases of real and personal property.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" shall mean, unless the context otherwise requires,
(a) any letter of credit issued pursuant to Section 2.23 and (b) any Existing
Letter of Credit.
"Leverage Ratio" shall mean, as of the last day of any fiscal quarter,
the ratio of (a) Total Debt as of such date to (b) Allied's Consolidated EBITDA
for the period of four consecutive fiscal quarters ended on such date. For
purposes of this definition, Allied's Consolidated EBITDA for each of the four
fiscal quarter periods ending June 30, 1997, and September 30, 1997, shall be
deemed to equal Allied's Consolidated EBITDA for the period commencing on
January 1, 1997, and ending on (i) June 30, 1997, multiplied by 2 and (ii)
September 30, 1997, multiplied by 4/3, as applicable.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m. (London time) on the applicable interest rate date
of determination by reference to the British Bankers' Association Interest
Settlement Rates for deposits in Dollars (as set forth by any service selected
by the Administrative Agent that has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) for a period equal to the relevant Interest Period (rounded upward
to the nearest whole multiple of one-sixteenth of one percent (0.0625%));
provided that to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the average
(rounded upward to the nearest whole multiple of one-sixteenth of one percent
(0.0625%) per annum, if such average is not a multiple) of the rates per annum
at which deposits in dollars are offered to major banks in the London interbank
market in London, England by the Reference Banks at approximately 11:00 a.m.
(London time) on the applicable interest rate date of determination for such
Interest Period.
21
16
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge (fixed or floating) or security
interest in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit (and
any related Letter of Credit application or reimbursement agreement), the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans, and the
Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of Allied, the Borrower and the Subsidiaries, taken as a whole, (b)
material impairment of the ability of the Borrower to perform its obligations
under the Loan Documents to which it is or will be a party or (c) material
impairment of the rights of or benefits available to the Lenders under the Loan
Documents.
"Material Agreements" shall have the meaning assigned to such term in
Section 5.13.
"Maturity Date" shall mean the date that is six years and six months
after the Closing Date.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds thereof (including cash and cash equivalents and cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received), net of (i)
costs of sale (including payment of the outstanding principal amount of, premium
or penalty, if any, interest and other amounts on any Indebtedness (other than
Loans) secured by a Lien permitted pursuant to Section 6.02 on such assets and
required to be repaid under the terms thereof as a result of such Asset Sale),
(ii) taxes paid or payable in the year such Asset Sale occurs or in the
following year as a result thereof and (iii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations associated with such Asset Sale (except that, to the extent and at
the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds); provided, however, that, with respect to any
Asset Sale, the proceeds of which are equal to or less than $25,000,000 (or if
the Senior Debt Ratio as of the last fiscal quarter for which financial
statements have been delivered to the Administrative Agent preceding such Asset
Sale is less than 2.50 to 1.00, $50,000,000), if the Borrower shall deliver a
certificate of a Financial Officer to the Administrative Agent at the time of
any Asset Sale setting forth the Borrower's intent to use the proceeds of such
Asset Sale to replace or repair the assets that are the subject of such Asset
Sale within 180 days of receipt of such proceeds and no 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,
22
17
such proceeds shall not constitute Net Cash Proceeds except to the extent not so
used within such 180-day period, at which time such proceeds shall be deemed Net
Cash Proceeds, and (b) with respect to any Equity Issuance or any issuance or
other disposition of Indebtedness for borrowed money, the cash proceeds thereof
net of (i) underwriting commissions or placement fees and expenses directly
incurred in connection therewith and (ii) the outstanding principal amount of,
premium or penalty, if any, interest and other amounts paid on Indebtedness
refinanced with the proceeds of such Equity Issuance or such Indebtedness,
provided such Indebtedness, by its terms, cannot be reborrowed.
"Obligation Currency" shall have the meaning assigned to such term in
Section 9.16.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreements and the Security Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Schedule" shall mean the Perfection Schedule substantially
in the form of Annex 1 to the Security Agreement.
"Permitted Acquisition" shall have the meaning assigned to such term in
Section 6.05(j).
"Permitted Capital Expenditures" shall mean Capital Expenditures not in
excess of:
(a) for the fiscal year ending December 31, 1997, $134,000,000
(the "1997 Base Amount");
(b) for the fiscal year ending December 31, 1998, $177,000,000
(the "1998 Base Amount");
(c) for the fiscal year ending December 31, 1999, $212,000,000
(the "1999 Base Amount");
(d) for the fiscal year ending December 31, 2000, the sum of
(i) $212,000,000 (the "2000 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2000, with respect to
Acquired Businesses acquired during such fiscal year;
(e) for the fiscal year ending December 31, 2001, the sum of
(i) $212,000,000 (the "2001 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2001, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the fiscal year ending December 31, 2000, with
respect to Acquired Businesses acquired during such fiscal year;
(f) for the fiscal year ending December 31, 2002, the sum of
(i) $212,000,000 (the "2002 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2002, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the two fiscal year period ending December 31,
2001, with respect to Acquired Businesses acquired during such period;
and
23
18
(g) for the fiscal year ending December 31, 2003, the sum of
(i) $212,000,000 (the "2003 Base Amount"), plus (ii) 25% of Acquired
Revenues for the fiscal year ending December 31, 2003, with respect to
Acquired Businesses acquired during such fiscal year, plus (iii) 15% of
Acquired Revenues for the three fiscal year period ending December 31,
2002, with respect to Acquired Businesses acquired during such period.
The 1997, 1998, 1999, 2000, 2001, 2002 and 2003 Base Amounts referred to above
shall be referred to herein collectively as the "Base Amounts".
"Permitted Dividend" shall mean cash dividends or advances to Allied so
long as Allied promptly, and in any event within five Business Days, utilizes
the full amount of such cash dividends or advances, as applicable, for the sole
purpose of paying interest as and when due with respect to the Allied Senior
Notes then outstanding to the extent required to be made in accordance with the
terms of the Allied Senior Notes as in effect on the Closing Date and without
giving effect to any amendment or modification thereof unless agreed to in
writing by the Required Lenders; provided, that (a) the amount of such cash
dividends or advances, as applicable, paid pursuant to this definition shall not
exceed the amount necessary to make such required interest payment in accordance
with the terms of the Allied Senior Notes, (b) no such payment shall be made at
any time when the payment of cash interest on the Allied Senior Notes is not
required to be made pursuant to the provisions thereof and (c) after giving
effect to any such dividend or advances, as applicable, (i) the Borrower shall
be in compliance with all covenants set forth in this Agreement and (ii) no
Default or Event of Default shall have occurred and be continuing.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances, time deposits and demand deposits maturing within one year
from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof that has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d) demand deposits made in the ordinary course of business
and consistent with the 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;
24
19
(f) repurchase obligations with a term of not more than 90
days for, and secured by, underlying securities of the types described
in clauses (a) through (c) above entered into with a bank meeting the
qualifications described in clause (c) above.
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of
clauses (a) through (c) above; and
(h) other investment instruments approved in writing by the
Administrative Agent and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company (including limited liability company),
partnership or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the 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 Agreement" shall mean the Amended and Restated Pledge
Agreement, substantially in the form of Exhibit H, between the Borrower, Allied,
the Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Pledge Intercreditor Agreement" shall mean the Pledge Intercreditor
Agreement, dated as of December 30, 1996, between the Collateral Agent and the
Indenture Trustee.
"Preferred Stock" shall mean the preferred stock of the Borrower set
forth on Schedule 4.02(p).
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Properties" shall have the meaning assigned to such term in Section
3.17.
"Reference Banks" shall mean Credit Suisse First Boston, Citibank, N.A.
and Bank Boston N.A.
"Refinancing Indebtedness" shall have the meaning assigned to such term
in Section 6.01(n).
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
25
20
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
which invests in loans, any other fund that invests in loans and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Release" shall mean 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.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, xxxxx or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Revolving
Loans, Term Loans (or, prior to the Closing Date, Term Loan Commitments), L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments
representing at least a majority of the sum of all Revolving Loans outstanding,
Term Loans (or, prior to the Closing Date, Term Loan Commitments) outstanding,
L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments at such
time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restatement Closing Date" shall have the meaning assigned to such term
in the Amendment Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09, 2.11(a)(v), 2.12 or 2.13 and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.
26
21
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (e) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or a Base Rate Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Amended and Restated Security
Agreement, substantially in the form of Exhibit I, between the Borrower, the
Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Security Documents" shall mean (a) the Security Agreement, the Pledge
Agreement, the Allied Finance Pledge Agreement and (b) each other security
agreement, mortgage or other instrument or document executed and delivered by
Allied, the Borrower or a Domestic Subsidiary pursuant to any of the foregoing
or pursuant to Section 5.11.
"Senior Convertible Debentures" shall mean the 8-1/2% Senior
Convertible Subordinated Debentures due 2002 of Allied.
"Senior Debt" shall mean Total Debt but excluding (a) the Senior
Subordinated Notes , (b) the Senior Convertible Debentures, (c) the Allied
Senior Notes and (d) other Indebtedness that is permitted hereunder and is
subordinated to the Obligations substantially to the same extent as the Senior
Subordinated Notes.
"Senior Debt Ratio" shall mean, as of the last day of any fiscal
quarter, the ratio of (a) Senior Debt as of such date to (b) Allied's
Consolidated EBITDA for the period of four consecutive fiscal quarters ended on
such date. For purposes of this definition, Allied's Consolidated EBITDA for
each of the four fiscal quarter periods ending March 31, 1997, June 30, 1997,
and September 30, 1997, shall be deemed to equal Allied's Consolidated EBITDA
for the period commencing on January 1, 1997, and ending on (i) March 31, 1997,
multiplied by 4, (ii) June 30, 1997, multiplied by 2 and (iii) September 30,
1997, multiplied by 4/3, as applicable.
"Senior Subordinated Notes" shall mean the 10-1/4% Senior Subordinated
Notes due 2006 issued by the Borrower on December 5, 1996, in an aggregate
principal amount of $525,000,000.
"Senior Subordinated Notes Indenture" shall mean the Indenture dated as
of December 1, 1996, as amended, among the Borrower, Allied, the Subsidiaries
party thereto and the Indenture Trustee.
"Specialized Waste" shall mean Specialized Waste Systems, Inc., a Texas
corporation.
27
22
"Statutory Reserves" shall mean 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 applicable reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent (including any branch, Affiliate, or
other fronting office making or holding a Loan) is subject (a) with respect to
the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to three months, and (b) with
respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities 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. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Stock Purchase Agreement" shall mean the stock purchase agreement
dated as of September 17, 1996, as amended, among Allied, certain subsidiaries
of Allied, Xxxxxxx and certain subsidiaries of Xxxxxxx.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held.
"Subsidiary" shall mean any subsidiary of Allied (other than the
Borrower, unless the context otherwise requires).
"Subsidiary Guarantee Agreement" shall mean the Amended and Restated
Subsidiary Guarantee Agreement, substantially in the form of Exhibit J, made by
the Subsidiary Guarantors in favor of the Collateral Agent for the benefit of
the Secured Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(c), and each other Subsidiary that becomes a party to the Subsidiary
Guarantee Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09.
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitments" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and
28
23
Acceptance pursuant to which such Lender assumed its Term Loan Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04.
"Term Loan Repayment Amounts" shall have the meaning assigned to such
term in Section 2.11(a)(i).
"Term Loan Repayment Date" shall have the meaning assigned to such term
in Section 2.11(a)(i).
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Each Term Loan shall be either
a Eurodollar Term Loan or a Base Rate Term Loan.
"Total Debt" shall mean, with respect to Allied, the Borrower and the
Subsidiaries on a consolidated basis at any time, all Indebtedness (other than
Junior Exchange Indebtedness, the Xxxxxxx Debentures and Indebtedness described
in clause (h) of the definition of the term "Indebtedness") of Allied, the
Borrower and the Subsidiaries which at such time, would be required to be
reflected as a liability for borrowed money on a consolidated balance sheet of
Allied, the Borrower and the Subsidiaries prepared in accordance with GAAP.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Base Rate.
"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" shall mean 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. Terms Generally. The definitions in Section 1.01 shall
apply equally to both 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".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any
29
24
Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05(a).
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make Term Loans to the Borrower on the
Closing Date in an aggregate principal amount not to exceed its Term Loan
Commitment and (b) to make Revolving Loans to the Borrower, at any time and from
time to time on or after the date hereof, and until the earlier of the Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in (i) such Lender's Revolving Credit Exposure
exceeding (ii) such Lender's Revolving Credit Commitment. Within the limits set
forth in clause (b) of the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Revolving Credit Commitments or Term Loan
Commitments, as applicable; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $1,000,000 and not less than
$5,000,000 or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of Base Rate Loans or Eurodollar Loans as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option 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 not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than 20 Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately
30
25
available funds to such account in New York City as the Administrative Agent may
designate not later than 12:00 (noon), New York City time, and the
Administrative Agent shall by 1:00 p.m., New York City time, credit the amounts
so received to an account in the name of the Borrower designated by the Borrower
in the applicable Borrowing Request or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Base Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement, and the Borrower shall be relieved of its obligation pursuant to the
preceding sentence to repay such amount or, if such amount has theretofore been
repaid by the Borrower to the Administrative Agent, the Administrative Agent
shall make such corresponding amount available to the Borrower.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing or Term
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower or
Allied, as the case may be, the payment required to be made by Section 2.23(e)
within the time specified in such Section, the Issuing Bank will promptly notify
the Administrative Agent of the L/C Disbursement and the Administrative Agent
will promptly notify each Revolving Credit Lender of such L/C Disbursement and
its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 12:00 (noon), New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute a Base Rate Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of
31
26
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrower or Allied, as the case may be, severally agree to
pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but excluding
the date such amount is paid, to the Administrative Agent for the account of the
Issuing Bank at (i) in the case of the Borrower or Allied, as the case may be, a
rate per annum equal to the interest rate applicable to Revolving Loans pursuant
to Section 2.06(a), and (ii) in the case of such Lender, for the first such day,
the Federal Funds Effective Rate, and for each day thereafter, the Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Borrowing Request (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of a
Base Rate Borrowing, not later than 1:00 p.m., New York City time, one Business
Day before a proposed Borrowing. Each Borrowing Request shall be irrevocable,
shall be signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing or a Base Rate Borrowing, provided that any Borrowing on
the Closing Date shall be a Base Rate Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; (v) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; and (vi) if applicable, whether the Borrowing then being requested is a
Bank Facility Loan or an Additional Facility Loan (it being understood that no
Borrowing shall be comprised of any Additional Facility Loans until the
Aggregate Revolving Credit Exposures exceed the Bank Facility Amount); provided,
however, that, (x) notwithstanding any contrary specification in any Borrowing
Request, each requested Borrowing shall comply with the requirements set forth
in Section 2.02 and (y) upon the request of the Administrative Agent, during the
period from and including the Closing Date to but excluding a date not more than
60 days after the Closing Date, the Borrower shall not be entitled to elect to
make Eurodollar Borrowings. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be a Base Rate
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly advise the applicable Lenders of any notice given pursuant to this
Section 2.03 (and the contents thereof), and of each Lender's portion of the
requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Swingline
Loan, on the last day of the Interest Period applicable to such Loan or, if
earlier, on the Maturity Date, (ii) the principal amount of each Term Loan of
such Lender as provided in Section 2.11 and (iii) the then unpaid principal
amount of each Revolving Loan on the Maturity Date.
(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 from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
32
27
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the 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 from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, 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 obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the Closing Date and on the last Business
Day of March, June, September and December in each year, commencing the last
Business Day of June 1997, and on each date on which any Commitment of such
Lender shall expire or be terminated as provided herein, a commitment fee (a
"Commitment Fee") equal to the Applicable Percentage per annum in effect from
time to time on the average daily unused amount of the Commitments of such
Lender (other than the Swingline Commitment) during the preceding quarter (or
other period commencing with the date of acceptance by the Borrower of the
Commitment of such Lender or ending with the Maturity Date or the date on which
the Commitments of such Lender shall expire or be terminated). All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. The Commitment Fee due to each Lender shall commence to accrue
on the Closing Date and shall cease to accrue on the date on which the
Commitment of such Lender shall expire or be terminated as provided herein. For
purposes of calculating Commitment Fees only, no portion of the Revolving Credit
Commitments shall be deemed utilized under Section 2.17 as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December of each year, commencing the last Business Day of June
1997, and on the date on which the Revolving Credit Commitment of such Lender
shall be terminated as provided herein, a fee (an "L/C Participation Fee")
calculated on such Lender's Pro Rata Percentage of the average daily aggregate
L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the quarter ending on such date (or shorter period
commencing with the date hereof or ending with the Maturity Date or the date on
which all Letters of Credit have been canceled or have expired and the Revolving
Credit Commitments of all Lenders shall have been terminated) at a rate equal to
the Applicable Percentage from time to time used to determine the interest rate
on Revolving Credit Borrowings
33
28
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit (x) a fronting fee equal to 1/4 of 1%
per annum of the outstanding face amount of such Letter of Credit, payable
quarterly in arrears and (y) the standard issuance and drawing fees specified
from time to time by the Issuing Bank (the "Issuing Bank Fees"). All L/C
Participation Fees and Issuing Bank Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each Base Rate Borrowing, including each
Swingline Loan, shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when the
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Base Rate plus the
Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Base Rate or Adjusted LIBO Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the sum of the Base Rate plus the
Applicable Percentage applicable to Base Rate Loans plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the
34
29
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for a Base Rate Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) Each
Lender's Term Loan Commitment shall terminate (i) at the time such Lender makes
the Term Loans to be made by it on the Closing Date in accordance with Section
2.01 or (ii) in the event any such Lender reasonably determines that the
conditions precedent set forth in Section 4.02 have not be satisfied on or prior
to the Closing Date, at 5:00 p.m., New York City time, on the Closing Date. The
Revolving Credit Commitments, the Swingline Commitment and the L/C Commitment
shall automatically terminate on the Maturity Date. Notwithstanding the
foregoing, all the Commitments shall automatically terminate at 5:00 p.m., New
York City time, on June 16, 1997, if the initial Credit Event shall not have
occurred by such time.
(b) Upon at least five Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments or the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 and (ii) the Total Revolving Credit Commitment
shall not be reduced to an amount that is less than the Aggregate Revolving
Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into a
Base Rate Borrowing, (b) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any Base Rate
Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as
a Eurodollar Borrowing for an additional Interest Period, and (c) not later than
11:00 a.m., New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified
35
30
in Sections 2.02(a) and 2.02(b) regarding the principal amount and
maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into a Base
Rate Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of
(A) the Eurodollar Term Borrowings with Interest Periods ending on or
prior to such Term Loan Repayment Date and (B) the Base Rate Term
Borrowings, would not be at least equal to the principal amount of Term
Borrowings to be paid on such Term Loan Repayment Date;
(viii) after the occurrence and during the continuance of a
Default or Event of Default, no outstanding Loan may be converted into,
or continued as, a Eurodollar Loan; and
(ix) upon the request of the Administrative Agent, during the
period from and including the Closing Date to but excluding a date not
more than 60 days after the Closing Date, no Borrowing may be converted
into a Eurodollar Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or a
Base Rate Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is to
be converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing),
36
31
such Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued into a
new Interest Period as a Base Rate Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
succeeding Business Day (each such date being a "Term Loan Repayment Date"), a
principal amount of the Term Loans (such amount, as adjusted from time to time
pursuant to Sections 2.11(b), 2.12 and 2.13, being called the "Term Loan
Repayment Amount") equal to the amount set forth below for such date, together
in each case with accrued and unpaid interest on the principal amount to be paid
to but excluding the date of such payment:
Date Amount
---- ------
September 30, 1997 $5,000,000
December 31, 1997 5,000,000
March 31, 1998 8,750,000
June 30, 1998 8,750,000
September 30, 1998 8,750,000
December 31, 1998 8,750,000
March 31, 1999 13,750,000
June 30, 1999 13,750,000
September 30, 1999 13,750,000
December 31, 1999 13,750,000
March 31, 2000 25,000,000
June 30, 2000 25,000,000
September 30, 2000 25,000,000
December 31, 2000 25,000,000
March 31, 2001 25,000,000
June 30, 2001 25,000,000
September 30, 2001 25,000,000
December 31, 2001 25,000,000
March 31, 2002 25,000,000
June 30, 2002 25,000,000
September 30, 2002 25,000,000
December 31, 2002 25,000,000
March 31, 2003 25,000,000
June 30, 2003 25,000,000
September 30, 2003 25,000,000
Maturity Date 25,000,000
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable
37
32
on each Term Loan Repayment Date shall be reduced pro rata by an aggregate
amount equal to the amount of such reduction, expiration or termination.
(c) To the extent not previously paid, all Term Loans shall be due and
payable on the Maturity Date, together with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the
Administrative Agent before 11:00 a.m., New York City time; provided, however,
that each partial prepayment and reduction shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be applied pro rata
against the remaining scheduled installments of principal due in respect of the
Term Loans under Section 2.11(a).
(c) Each notice of prepayment shall specify the prepayment date,
whether the Borrowing being prepaid is a Term Borrowing or a Revolving Credit
Borrowing and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.16, but
otherwise without premium or penalty. All prepayments of Eurodollar Loans under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay or
prepay all its outstanding Revolving Credit Borrowings and all outstanding
Swingline Loans on the date of such termination. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) at or prior to the
effective date of such reduction, the Administrative Agent shall notify the
Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit
Exposure after giving effect thereto and (ii) if such Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment after giving effect
to such reduction or termination, then the Borrower shall, on the date of such
reduction or termination, repay or prepay Revolving Credit Borrowings or
Swingline Loans (or a combination thereof) in an amount sufficient to eliminate
such excess. If following any reduction of the Total Revolving Credit Commitment
and the payments required by this Section 2.13(a), the Total Revolving Credit
Commitment is less than the aggregate L/C Exposure, the Borrower shall, on the
date of such reduction, provide cash collateral, in accordance with Section
2.23(j), in an amount equal to the amount that the aggregate L/C Exposure
exceeds the Total Revolving Credit Commitment.
(b) Not later than the third Business Day following the later of (i)
the completion of any Asset Sale and (ii) the receipt of the Net Cash Proceeds
with respect thereto, the Borrower shall apply 100% of the Net Cash Proceeds
received with respect thereto to prepay outstanding Term Loans in accordance
with Section 2.13(g).
38
33
(c) Not later than the third Business Day following receipt of any
Extraordinary Amount, the Borrower shall apply 100% of such Extraordinary Amount
received to prepay outstanding Term Loans in accordance with Section 2.13(g).
(d) In the event and on each occasion that an Equity Issuance occurs,
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply 50% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans in accordance with Section 2.13(g).
(e) No later than the earlier of (i) 100 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
31, 1997, and (ii) the day that is five Business Days after the date on which
the financial statements with respect to such period are delivered pursuant to
Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance
with Section 2.13(g) in an aggregate principal amount equal to 50% of Excess
Cash Flow for the fiscal year then ended; provided, however, that no prepayment
shall be required pursuant to this Section 2.13(e), if the Senior Debt Ratio at
the end of such fiscal year then ended is less than 2.00 to 1.00.
(f) In the event that Allied, the Borrower or any Subsidiary shall
receive Net Cash Proceeds from the issuance or other disposition of Indebtedness
for money borrowed (other than Indebtedness the issuance of which also
constitutes an Equity Issuance), of Allied, the Borrower or any Subsidiary
(other than Indebtedness for money borrowed permitted pursuant to Section 6.01),
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the receipt of such Net Cash
Proceeds by Allied, the Borrower or the Subsidiaries, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance
with Section 2.13(g).
(g) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be applied pro rata against the remaining scheduled installments
of principal due in respect of Term Loans under Section 2.11(a).
(h) The Borrower shall deliver to the Administrative Agent, at the time
of each prepayment required under this Section 2.13, (i) a certificate signed by
a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments under this Section 2.13 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
(i) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans shall be applied, as applicable, first to reduce
outstanding Base Rate Term Loans. Any amounts remaining after each such
application shall, at the option of the Borrower, be applied to prepay
Eurodollar Term Loans immediately and/or shall be deposited in the Prepayment
Account (as defined below). The Administrative Agent shall apply any cash
deposited in the Prepayment Account allocable to Term Loans to prepay Eurodollar
Term Loans on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding Term Loans
have been prepaid or until all the allocable cash on deposit with respect to
such Loans has been exhausted. For purposes of this Agreement, the term
"Prepayment Account" shall mean an account established by the Borrower with the
Administrative Agent and over which the Administrative Agent
39
34
shall have exclusive dominion and control, including the exclusive right of
withdrawal for application in accordance with this paragraph (i). The
Administrative Agent will, at the request of the Borrower, invest amounts on
deposit in the Prepayment Account in Permitted Investments that mature prior to
the last day of the applicable Interest Periods of the Eurodollar Term
Borrowings; provided, however, that (i) the Administrative Agent shall not be
required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing. The Borrower
shall indemnify the Administrative Agent for any losses relating to the
investments so that the amount available to prepay Eurodollar Borrowings on the
last day of the applicable Interest Period is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest earned on such investments, the Prepayment Account shall not
bear interest. Interest or profits, if any, on such investments shall be
deposited in the Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Loans has been accelerated pursuant to Article
VII, the Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations. The
Borrower hereby grants to the Administrative Agent, for its benefit and the
benefit of the Issuing Bank, the Swingline Lender and the Lenders, a security
interest in the Prepayment Account to secure the Obligations.
(j) In the event that, upon the occurrence of any event described in
Section 2.13(b), (c), (d), (e) or (f), no Term Loans are outstanding that are
required to be prepaid pursuant to Section 2.13(b), (c), (d), (e) or (f) the
Borrower shall reduce the Revolving Credit Commitments in accordance with
paragraph (a) above by the amount of the applicable Net Cash Proceeds,
Extraordinary Amounts or Excess Cash Flow, as the case may be; provided,
however, that the Total Revolving Credit Commitment shall not be reduced to less
than $300,000,000 as a result of reductions required pursuant to this Section
2.13(j).
(k) At any time that the Swingline Exposure exceeds $25,000,000, the
Borrower shall repay or prepay outstanding Swingline Loans in an amount
sufficient to eliminate such excess no later than three Business Days after the
date the Borrower has knowledge (actual or constructive) that the Swingline
Exposure exceeds $25,000,000.
(l) No later than three Business Days after the date that the Revolving
Loan relating to the Canada Debenture Refinancing is borrowed, the Borrower,
Allied and Allied Finance shall cause such Revolving Loan to be repaid or
prepaid in full with the proceeds from repayment of the Allied Canada
Debentures.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or by any political subdivision or taxing authority therein), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
40
35
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the 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 or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company would have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Lender or the Issuing Bank to be material, then from time to time the Borrower
shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof
41
36
by any Governmental Authority charged with the administration or interpretation
thereof shall make it unlawful for any Lender to make or maintain any Eurodollar
Loan or to give effect to its obligations as contemplated hereby with respect to
any Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
Base Rate Loans will not thereafter (for such duration) be converted
into Eurodollar Loans), whereupon any request for a Eurodollar
Borrowing (or to convert a Base Rate Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an additional
Interest Period) shall, as to such Lender only, be deemed a request for
a Base Rate Loan (or a request to continue a Base Rate Loan as such for
an additional Interest Period or to convert a Eurodollar Loan into a
Base Rate Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans, in which event all
such Eurodollar Loans shall be automatically converted to Base Rate
Loans as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to a Base Rate Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in each
case other than on the last day of the Interest Period in effect therefor, or
(iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.10) not
being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any
42
37
amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Section 2.15,
each Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). For purposes of determining the
available Revolving Credit Commitments of the Lenders at any time, each
outstanding Swingline Loan shall be deemed to have utilized the Revolving Credit
Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Revolving Credit
Commitments. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Term Loans, Revolving Loans and participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Term Loans and Revolving Loans and participations in L/C Disbursements of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Term Loans and Revolving Loans and
L/C Exposure, as the case may be of such other Lender, so that the aggregate
unpaid principal amount of the Term Loans and Revolving Loans and L/C Exposure
and participations in Term Loans and Revolving Loans and L/C Exposure held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Term Loans and Revolving Loans and L/C Exposure then outstanding
as the principal amount of its Term Loans and Revolving Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Term Loans and Revolving Loans and L/C
Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower and Allied expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Term Loan or Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower and Allied to such Lender by reason thereof as fully as if such
Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and
43
38
under any other Loan Document not later than 12:00 (noon), New York City time,
on the date when due in immediately available dollars, without setoff, defense
or counterclaim. Each such payment (other than (i) Issuing Bank Fees, which
shall be paid directly to the Issuing Bank, and (ii) principal of and interest
on Swingline Loans, which shall be paid directly to the Swingline Lender except
as otherwise provided in Section 2.22(e)) shall be made to the Administrative
Agent at its offices at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of the
Borrower or any Loan Party hereunder and under any other Loan Document shall be
made, in accordance with Section 2.19, free and clear of and without deduction
for any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (i) income
taxes imposed on the net income of the Administrative Agent, the Syndication
Agent, the Documentation Agent, any Lender or the Issuing Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, the Syndication Agent, the Documentation Agent, any
Lender or the Issuing Bank (or Transferee), in each case by the jurisdiction
under the laws of which the Administrative Agent, the Syndication Agent, the
Documentation Agent, such Lender or the Issuing Bank (or Transferee) is
organized or in which the principal office or applicable lending office of the
Administrative Agent, the Syndication Agent, the Documentation Agent, such
Lender or the Issuing Bank (or Transferee) is located or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If the Borrower or any Loan Party shall be required to deduct
any Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to the Administrative Agent, the Syndication Agent, the
Documentation Agent, any Lender or the Issuing Bank (or any Transferee), (i) the
sum payable shall be increased by the amount (an "additional amount") necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) the Administrative Agent, the
Syndication Agent, the Documentation Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower or such
Loan Party shall make such deductions and (iii) the Borrower or such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including, without limitation, mortgage recording taxes and
similar fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, the
Syndication Agent, the Documentation Agent, each Lender and the Issuing Bank (or
Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank (or Transferee),
44
39
as the case may be, and any liability (including penalties, interest and
expenses (including reasonable attorney's fees and expenses but excluding
penalties, interest and expenses arising as a result of the gross negligence of
such Lender)) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted by the relevant
Governmental Authority (it being understood that such indemnification shall not
impair any right that the Borrower may have to contest with the relevant
Governmental Authority such Taxes or Other Taxes). A certificate as to the
amount of such payment or liability prepared by the Administrative Agent, the
Syndication Agent, the Documentation Agent, a Lender or the Issuing Bank (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent, any
Lender, the Syndication Agent, the Documentation Agent, or the Issuing Bank (or
Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower or any other Loan Party to the relevant Governmental
Authority, the Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. 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 Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.20(e), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20(e) that
such Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify any Non-U.S. Lender
or to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party
to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan;
45
40
provided, however, that this paragraph (f) shall not apply (x) to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Borrower and (y) to the extent the indemnity payment or
additional amounts any Transferee, or any Lender (or Transferee), acting through
a New Lending Office, would be entitled to receive (without regard to this
paragraph (f)) do not exceed the indemnity payment or additional amounts that
the person making the assignment, participation or transfer to such Transferee,
or Lender (or Transferee) making the designation of such New Lending Office,
would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender or
the Issuing Bank (or any Transferee) or the Administrative Agent, the
Syndication Agent or the Documentation Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder (including any amounts under Section 2.14
and Section 2.16); provided further that, if prior to the giving of such notice
the circumstances or event that resulted in such Lender's or the Issuing Bank's
claim for compensation under Section 2.14 or notice under Section 2.15 or the
amounts paid pursuant to Section 2.20, as the case may be, cease to cause such
Lender or the Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under Section 2.20, as the case may be (including as a result of any
action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
46
41
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Maturity Date and the termination of the Revolving Credit Commitments in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of all
Swingline Loans exceeding $50,000,000 or (ii) the Aggregate Revolving Credit
Exposure, after giving effect to any Swingline Loan, exceeding the Total
Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal
amount of $1,000,000 that is an integral multiple of $250,000. The Swingline
Commitment may be terminated or reduced from time to time as provided herein.
Within the foregoing limits, the Borrower may borrow, pay or prepay and reborrow
Swingline Loans hereunder, subject to the terms, conditions and limitations set
forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent
by telecopy, or by telephone (confirmed by telecopy), not later than 1:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to an account in the name of the Borrower
designated by the Borrower by 3:00 p.m. on the date such Swingline Loan is so
requested.
(c) Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 (noon), New York City time on the date of prepayment at the
Swingline Lender's address for notices specified on Schedule 2.01. All principal
payments of Swingline Loans shall be accompanied by accrued interest on the
principal amount being repaid, but not including, to the date of payment.
(d) Interest. Each Swingline Loan shall be a Base Rate Loan and,
subject to the provisions of Section 2.07, shall bear interest as provided in
Section 2.06(a).
47
42
(e) Participations. The Swingline Lender may by written notice given to
the Administrative Agent not later than 1:00 p.m., New York City time, on any
Business Day require the Revolving Credit 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
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit 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 Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit 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 an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower 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 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 (or
other party liable for obligations of the Borrower) of any default in the
payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
other Account Party (provided that the Borrower shall be a co-applicant and
co-obligor with respect to each Letter of Credit issued for the account of any
other Account Party), in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the 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, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), 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 such Letter of Credit. Following
receipt of such notice and prior to the issuance of the requested Letter of
Credit or the applicable amendment, renewal or extension, the
48
43
Administrative Agent shall notify the Issuing Bank of the amount of the
Aggregate Revolving Credit Exposure after giving effect to (i) the issuance,
amendment, renewal or extension of such Letter of Credit, (ii) the issuance or
expiration of any other Letter of Credit that is to be issued or will expire
prior to the requested date of issuance of such Letter of Credit and (iii) the
borrowing or repayment of any Revolving Credit Loans or Swingline Loans that
(based upon notices delivered to the Administrative Agent by the Borrower) are
to be borrowed or repaid prior to the requested date of issuance of such 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 (A) the L/C Exposure shall not
exceed $175,000,000 and (B) the Aggregate Revolving Credit Exposure shall not
exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the date one year after the date of the issuance of such Letter of
Credit (other than any Back-up Letter of Credit, which shall expire on the
expiry date of the letter of credit that such Back-up Letter of Credit supports,
as set forth on Schedule 1.01(a)), unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that each Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter of
Credit shall be renewed automatically for additional consecutive periods 12
months or less unless the Issuing Bank notifies the beneficiary thereof not more
than 45, nor fewer than 30, days prior to the then applicable expiry date (or
such other notification periods as set forth in the Back-up Letters of Credit as
set forth on Schedule 1.01(a)) that such Letter of Credit will not be renewed;
provided further, however, that no Letter of Credit may expire or be extended
beyond the date that is five Business Days prior to the Maturity Date unless, on
or prior to the date such Letter of Credit is issued or extended, the Borrower
shall have deposited with the Collateral Agent an amount equal to 110% of the
face amount of such Letter of Credit in a cash collateral account established
with the Collateral Agent for the benefit of the Secured Parties.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In addition, the Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from the Issuing Bank, a participation
in each Existing Letter of Credit equal to such Lender's Pro Rata Percentage of
the face amount of such Existing Letter of Credit, effective on the Closing
Date. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the applicable Account Party (or, if applicable, another party
pursuant to its obligations under any other Loan Document) forthwith on the date
due as provided in Section 2.02(f). Each Revolving Credit 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 the occurrence
and continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the applicable Account Party shall pay to the
Administrative Agent an amount equal
49
44
to such L/C Disbursement not later than two hours after such Account Party shall
have received notice from the Issuing Bank that payment of such draft will be
made, or, if such Account Party shall have received such notice later than 10:00
a.m., New York City time, on any Business Day, not later than 10:00 a.m., New
York City time, on the immediately following Business Day.
(f) Obligations Absolute. Each Account Party's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above 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 any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Account Party, any other party guaranteeing, or
otherwise obligated with, the Account Party, any Subsidiary or other
Affiliate thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the 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; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever (other than
payment against presentation of drafts or documents that, as a result
of the Issuing Bank's negligence, do not comply with the terms of such
Letter of Credit), 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 the Account Party's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Account Party hereunder to reimburse L/C Disbursements will not be excused by
the gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
such Account Party to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower, Allied and the other Account Parties to the extent permitted by
applicable law) suffered by such Account Party that are caused by the Issuing
Bank's gross negligence or wilful misconduct in determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof; it is understood that the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary and, in making any
payment
50
45
under any Letter of Credit (i) the Issuing Bank's exclusive reliance on the
documents presented to it under such Letter of Credit as to any and all matters
set forth therein, including reliance on the amount of any draft presented under
such Letter of Credit, whether or not the amount due to the beneficiary
thereunder equals the amount of such draft and whether or not any document
presented pursuant to such Letter of Credit proves to be insufficient in any
respect, if such document on its face appears to be in order, and whether or not
any other statement or any other document presented pursuant to such Letter of
Credit proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any
immaterial respect of the documents presented under such Letter of Credit with
the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(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 as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the applicable Account Party of such demand for payment and whether the
Issuing Bank has made or will make an L/C Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Account
Party of its obligation to reimburse the Issuing Bank and the Revolving Credit
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Revolving Credit Lender notice thereof if the
applicable Account Party does not pay the applicable reimbursement amount in
accordance with paragraph (e) above.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the applicable
Account Party shall reimburse such L/C Disbursement in full on such date, the
unpaid amount thereof shall bear interest for the account of the Issuing Bank,
for each day from and including the date of such L/C Disbursement, to but
excluding the earlier of the date of payment by the applicable Account Party or
the date on which interest shall commence to accrue thereon as provided in
Section 2.02(f), at the rate per annum that would apply to such amount if such
amount were a Base Rate Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents 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 resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan
51
46
Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
The Administrative Agent shall, at the reasonable request of the
Borrower, appoint a Lender to issue a specific Letter of Credit under this
Agreement in accordance with the terms hereof, provided that such appointment
shall in no way be deemed a resignation or removal of the Issuing Bank under
this Agreement. Such appointment shall be subject to the consent of the
applicable Lender. Unless the context otherwise requires, references herein and
in the other Loan Documents to the term Issuing Bank shall refer to the Issuing
Bank hereunder and such Lender appointed by the Administrative Agent to issue a
Letter of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, or if the Total Revolving Credit Commitment is less than the
aggregate L/C Exposure, the Borrower shall, on the Business Day following which
it receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit) thereof and
of the amount to be deposited, deposit in an account with the Collateral Agent,
for the benefit of the Revolving Credit Lenders, an amount in cash equal to the
L/C Exposure as of such date. Such deposit shall be held by the Collateral Agent
as collateral for the payment and performance of the Obligations. The Collateral
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 in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements (and all accrued interest thereon) for which it has not been
reimbursed, (ii) be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Exposure at such time and (iii) if the maturity of
the Loans has been accelerated (but subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. 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 2.13(a), such amount
shall be returned to the Borrower from time to time to the extent that the
amount of such cash collateral held by the Collateral Agent exceeds the excess,
if any, of the aggregate L/C Exposure over the Total Revolving Credit
Commitment; provided, that such return shall not be required at any time that an
Event of Default has occurred and is continuing.
52
47
ARTICLE III
Representations and Warranties
Each of Allied and the Borrower represents and warrants to the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of Allied, the Borrower and
each of the 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 and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in 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 in the case of the Borrower the borrowings hereunder (collectively,
the "Transactions") (a) have been duly authorized by all requisite corporate
and, if required, stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or articles
of incorporation or other constitutive documents or by-laws of Allied, the
Borrower or any Subsidiary, (B) any order of any Governmental Authority or (C)
any provision of any indenture, agreement or other instrument to which Allied,
the Borrower or any Subsidiary is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under any such indenture, agreement
or other instrument or (iii) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired
by Allied, the Borrower or any Subsidiary (other than any Lien created hereunder
or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Allied and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and other similar
filings to perfect the interests of the Secured Parties in the Collateral, (b)
such as will have been made or obtained and will be in full force and effect as
of the Closing Date and (c) such as may be required in the ordinary course of
business in connection with the performance of the obligations of Allied and the
Borrower hereunder and in connection with the Transactions.
SECTION 3.05. Financial Statements. Allied has heretofore furnished to
the Lenders its consolidated balance sheets and statements of operations, cash
flows and stockholders' equity (i) as
53
48
of and for each of the three fiscal years ended December 31, 1996, audited by
and accompanied by the opinion of Xxxxxx Xxxxxxxx LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended March 31, 1997, certified by a Financial Officer of Allied.
Such financial statements present fairly in all material respects the financial
condition and results of operations and cash flows of Allied and its
consolidated Subsidiaries as of such dates and for such periods. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of Allied, the Borrower and the
Subsidiaries, taken as a whole, since December 31, 1996.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Allied, the Borrower and the Subsidiaries has good and indefeasible title to, or
valid leasehold interests in, all its material properties and assets, except for
minor defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Allied, the Borrower and the Subsidiaries has complied with
all obligations under all material leases to which it is a party and all such
leases are in full force and effect, except where failure to do so could not
reasonably be expected to have a Material Adverse Effect. Each of Allied, the
Borrower and the Subsidiaries 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. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries. Each such Subsidiary is 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 Subsidiaries
and owned by Allied, the Borrower or the Subsidiaries are fully paid and
non-assessable and are owned by Allied or the Borrower, directly or indirectly,
free and clear of all Liens (other than Liens permitted by this Agreement).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Allied or the Borrower, threatened against or affecting Allied or
the Borrower or any Subsidiary or any business, property or rights of any such
person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of Allied, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits), or is
in default with respect to any judgment, writ, injunction, decree or order of
any Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
54
49
SECTION 3.10. Agreements. (a) None of Allied, the Borrower or any of
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Allied, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
(c) The Borrower is permitted to borrow up to the lesser of (i)
$80,000,000 and (ii) the Additional Facility Amount in reliance upon Section
1008(ix) of the Senior Subordinated Notes Indenture, and all Loans made
hereunder and Letters of Credit issued hereunder are "Senior Debt" as such term
is defined in the Senior Subordinated Notes Indenture.
SECTION 3.11. Federal Reserve Regulations. (a) None of Allied, the
Borrower or any of the Subsidiaries 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, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, T,
U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Allied, the Borrower or any Subsidiary 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. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Allied, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes due and payable by it and all assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which Allied, the Borrower or such Subsidiary,
as applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Allied or the
Borrower to the Administrative Agent, the Syndication Agent, the Documentation
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not misleading;
provided that to the extent any such information, report, financial statement,
exhibit or
55
50
schedule was based upon or constitutes a forecast, projection or expressions of
opinion, each of Allied and the Borrower represents only that it acted in good
faith and utilized reasonable assumptions and due care in the preparation of
such information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. 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 where non-compliance could not reasonably be
expected to have a Material Adverse Effect. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events, could reasonably be expected to result in material liability of the
Borrower or any of its ERISA Affiliates, except where such liability could not
reasonably be expected to have a Material Adverse Effect. The present value of
all benefit liabilities under each Plan (based on those assumptions used to fund
such Plan) did not, as of the last annual valuation date applicable thereto,
exceed by more than $3,000,000 the fair market value of the assets of such Plan,
and the present value of all benefit liabilities of all underfunded Plans (based
on those assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto, exceed by more than $3,000,000 fair market
value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The facilities and properties owned, leased or operated by Allied,
the Borrower and the Subsidiaries (the "Properties") do not contain, and have
not previously contained, to the Borrower's best knowledge (actual or
constructive) any Hazardous Materials in amounts or concentrations which (i)
constitute, or constituted a violation of, (ii) require Remedial Action under,
or (iii) could give rise to liability under, Environmental Laws, which
violations, Remedial Actions and liabilities, in the aggregate, could reasonably
be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last five years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Allied, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Allied, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do Allied, the Borrower or
the Subsidiaries have reason to believe that any such notice will be received or
is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a
56
51
manner that could give rise to liability under any Environmental Law, nor have
the Borrower or the Subsidiaries retained or assumed any liability,
contractually, by operation of law or otherwise, with respect to the generation,
treatment, storage or disposal of Hazardous Materials, which transportation,
generation, treatment, storage or disposal, or retained or assumed liabilities,
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by Allied, the Borrower or by
Allied or the Borrower for its Subsidiaries as of the date hereof and the
Closing Date. As of each such date, such insurance is in full force and effect
and all premiums have been duly paid. Allied, the Borrower and its Subsidiaries
have insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) On and after the Closing Date,
each of the Pledge Agreement and the Allied Finance Pledge Agreement will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement and the Allied Finance Pledge
Agreement, as applicable) and, when the certificates evidencing the investment
securities that constitute the Pledged Securities (as defined in the Pledge
Agreement and the Allied Finance Pledge Agreement, as applicable) are delivered
to the Collateral Agent, the Collateral Agent shall have 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) On and after the Closing Date, the Security Agreement will be
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) and, when financing statements
in appropriate form are filed in the offices specified in the Perfection
Schedule, the Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in all such Collateral in which a security interest may be perfected by filing,
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
SECTION 3.20. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against Allied, the Borrower
or any Subsidiary pending or, to the knowledge of Allied or the Borrower,
threatened, which could reasonably be expected to result in a Material Adverse
Effect. The hours worked by and payments made to employees of Allied, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, which could reasonably be expected to result in a
Material Adverse Effect. All payments due from Allied, the Borrower or any
Subsidiary, or for which any claim may be made against Allied, the Borrower or
any Subsidiary, 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
Allied, the Borrower or such Subsidiary, except where the failure to do so could
not reasonably be expected to result in 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 Allied, the Borrower or any Subsidiary is bound,
except where such event could not reasonably be expected to result in a Material
Adverse Effect.
57
52
SECTION 3.21. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, and taking into account all rights of indemnity,
subrogation and contribution of the Loan Parties under applicable law and under
the Indemnity, Subrogation and Contribution Agreement, (i) the fair value of the
assets of Allied, the Borrower and the other Loan Parties, on a consolidated
basis, at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
Allied, the Borrower and the other Loan Parties, on a consolidated basis, will
be greater than the amount that will be required to pay the probable liability
of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (iii) Allied, the
Borrower and the other Loan Parties, on a consolidated basis, will be able to
pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) Allied, the Borrower
and the other Loan Parties, on a consolidated basis, will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder (each such event being called a "Credit
Event") are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, renewal or extension of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, renewal or extension of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) Except in the case of a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender, the
representations and warranties set forth in Article III hereof shall be true and
correct in all material respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Allied on the date of such Credit Event as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Article IV.
58
53
ARTICLE V
Affirmative Covenants
Each of Allied and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, each of Allied and the
Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.06, except that, after notice to and consultation with the
Administrative Agent, any Subsidiary may terminate its existence.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; 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.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance satisfactory to the Administrative Agent and the Collateral Agent,
which endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or
the Loan Parties under such policies directly to the Collateral Agent; cause all
such policies to provide that neither the Borrower, the Administrative Agent,
the Collateral Agent nor any other party shall be a coinsurer thereunder and to
contain a "Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver original or certified copies of all such policies to the
Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason
59
54
of nonpayment of premium upon not less than 10 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent
(giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason upon not less
than 30 days' prior written notice thereof by the insurer to the Administrative
Agent and the Collateral Agent; deliver to the Administrative Agent and the
Collateral Agent, prior to the cancelation, modification or nonrenewal of any
such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative Agent
and the Collateral Agent) together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. 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, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
Allied and its consolidated Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by 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 and
its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied and annual consolidating income
statements for Allied and its operating regions;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
showing the financial condition of Allied and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of Allied and its
consolidated Subsidiaries on a consolidated basis in accordance
60
55
with GAAP consistently applied, subject to normal year-end audit
adjustments and quarterly consolidating income statements for Allied
and its operating regions;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a certificate of the accounting
firm or Financial Officer opining on or certifying such statements
(which certificate, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that in making its examination in
connection with rendering such opinion or certificate with respect to
such statements, such person has not obtained knowledge that an Event
of Default or Default has occurred or, if such Financial Officer has
obtained knowledge that an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (ii) setting forth
computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Section
6.01, 6.02, 6.04, 6.05, 6.11, 6.12, 6.13, 6.14 and 6.15 and (iii)
setting forth any change in the Applicable Percentage;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Allied, the Borrower or any Subsidiary 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) as soon as available but in any event not later than 50
days after the end of each fiscal quarter, a report in form and
substance satisfactory to the Administrative Agent of all Permitted
Acquisitions consummated during such quarter with total consideration
of $3,000,000 or more, which report shall include a description of the
total consideration by acquisition (including a breakdown of
Indebtedness permitted under Section 6.01(e), Acquired Indebtedness and
contingent payments);
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Allied, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may
reasonably request;
(g) within fifteen days after the beginning of each fiscal
year, a copy of the annual business plan of Allied and forecasts,
prepared by management of Allied, in each case in form and detail
satisfactory to the Administrative Agent, of Allied's consolidated
balance sheets and related statements of operations and cash flows on a
quarterly basis for such fiscal year and on an annual basis for each of
the following fiscal years remaining during the term of this Agreement;
and
(h) concurrently with the delivery of the financial statements
under sub-paragraph (a) above, a schedule of all real property then
owned by Allied, the Borrower or the Subsidiaries, which schedule shall
include, in detail satisfactory to the Administrative Agent, the
location of, description of, fair market or assessed value of and any
Liens securing Indebtedness on, each such owned real property.
61
56
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or 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 the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of the Borrower or any ERISA Affiliate knows
or has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Event could reasonably be expected to result in liability
of the Borrower in an aggregate amount exceeding $5,000,000 or (ii) requiring
payments 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 the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Allied, the Borrower or
any Subsidiary at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Allied, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor. Without limiting
the foregoing, the Administrative Agent and its representatives may inspect, and
may cause an environmental assessment to be made of, any real property owned or
leased by Allied, the Borrower or any Subsidiary with a view toward securing the
Obligations by a Lien on such property pursuant to Section 5.11, in each case at
the Borrower's sole cost and expense (not to exceed $100,000 in any fiscal
year).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Environmental Laws. (a) Comply, and cause all lessees and
other persons occupying its Properties to comply, in all respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; obtain and renew all Environmental Permits necessary for its
operations and Properties; and conduct any Remedial Action in accordance with
Environmental Laws, except where such non-compliance or failure to obtain or
renew Environmental Permits or to conduct any Remedial Action could not
reasonably be expected to result in a Material Adverse Effect; provided,
however, that none of Allied, the Borrower or any of the Subsidiaries shall
62
57
be required to undertake any Remedial Action to the extent that any applicable
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.
(b) With respect to any Permitted Acquisition 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: (i) prior to consummating any such acquisition or
commencement of any operations under any such agreement or lease, obtain and
review a favorable written assessment, prepared by an environmental consulting
firm recognized within the municipal solid waste industry and among
environmental professionals as competent and reputable and which the Borrower
has reasonably determined to be suitable, that reasonably addresses the
environmental compliance and liability issues associated with the subject of
such acquisition, agreement or lease (an "Environmental Assessment"); and (ii)
furnish such Environmental Assessment to the Administrative Agent promptly
following such acquisition or the commencement of any operations under such an
agreement or lease with respect to a Permitted Acquisition, the total
consideration of which is greater than $5,000,000.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance or
Remedial Action in connection with such Properties.
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
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. Allied and the Borrower will
cause any subsequently acquired or organized Subsidiary (other than a Subsidiary
that conducts no operations, has total assets not in excess of $5,000 and has no
Indebtedness) to execute a Subsidiary Guarantee Agreement, Indemnity Subrogation
and Contribution Agreement and each applicable Security Document in favor of the
Collateral Agent, except to the extent any such execution by a Foreign
Subsidiary would have any adverse tax consequences for the Borrower or any of
the Subsidiaries. In addition, from time to time, Allied and the Borrower will,
at their own cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties (including real property) as the
Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of Allied and the
Borrower (including real and other properties acquired subsequent to the Closing
Date)). Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other
instruments and documents in form and substance satisfactory to the Collateral
Agent, and Allied and the Borrower shall deliver or cause to be delivered to the
Collateral Agent all such instruments and documents (including legal opinions,
title insurance policies and lien searches) as the Collateral Agent shall
reasonably request to evidence compliance
63
58
with this Section. Allied and the Borrower agree to provide such evidence as the
Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
SECTION 5.12. Compliance with Terms of Leaseholds. Make all payments
and otherwise perform all obligations in respect of all leases of real property
to which Allied, the Borrower or any of the Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or canceled,
notify the Administrative Agent of any default by any party with respect to such
leases and cooperate with the Administrative Agent in all respects to cure any
such default, and cause each of the Subsidiaries to do so, except, in any case,
where the failure to do so, either individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect.
SECTION 5.13. Performance of Material Agreements. Perform and observe
all of the terms and provisions of each agreement that is material to the
conduct of the Borrower's and the Subsidiaries' business to be performed or
observed by it (collectively, the "Material Agreements"), maintain each such
Material Agreement in full force and effect, enforce such Material Agreement in
accordance with its terms, take all action to such end as may be from time to
time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Material Agreement
such demands and requests for information and reports or for action as Allied or
the Borrower is entitled to make under such Material Agreement, and cause each
of the Subsidiaries to do so, except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
SECTION 5.14. Senior Convertible Debentures. Prior to the end of each
fiscal year, commencing with the fiscal year ending on December 31, 1997, the
Borrower shall deliver to the Administrative Agent evidence reasonably
satisfactory to the Administrative Agent that the Borrower will be in compliance
with the financial covenants of the Senior Convertible Debentures (including
compliance as a result of a waiver or amendment of the terms thereof), provided
that the Borrower shall not be obligated to deliver such evidence if prior to
any such fiscal year-end, the Borrower shall have prepaid all Senior Convertible
Debentures not converted prior to such prepayment, in each case in accordance
with the terms thereof.
SECTION 5.15. Concentration and Disbursement Accounts. (a) Except to
the extent permitted by paragraph (b) below, the Borrower shall maintain with a
financial institution that is a Lender one or more accounts to be used by the
Borrower as its principal concentration and disbursement accounts and will not,
and will not permit any Subsidiary to, maintain more than an aggregate of
$1,000,000 for more than two Business Days in bank accounts with any person that
is not a Lender.
(b) Notwithstanding the foregoing, with respect to the accounts of the
Domestic Subsidiaries that were acquired from Xxxxxxx pursuant to the Stock
Purchase Agreement, (a) the Borrower shall be in compliance with paragraph (a)
within 90 days after the Closing Date. The Borrower and the Subsidiaries shall
be deemed to be in compliance with this Section 5.15 at any time that a lockbox
arrangement in accordance with Section 4.09(b) of the Security Agreement is in
effect.
64
59
ARTICLE VI
Negative Covenants
Each of Allied and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Allied nor the Borrower
will, nor will they cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth on Schedule 6.01(a);
(b) Indebtedness created hereunder and under the other Loan
Documents.
(c) in the case of the Borrower, Indebtedness under the
Interest Rate Protection Agreements;
(d) Indebtedness of a Subsidiary acquired after the date
hereof and Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Subsidiary after the date hereof ("Acquired
Indebtedness"), which Indebtedness in each case exists at the time of
such acquisition, merger, consolidation or conversion into a 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 Subsidiaries comply with the
provisions of Section 5.11 with respect to such acquired or newly
formed Subsidiary;
(e) Indebtedness of Allied, the Borrower or any Subsidiary
that is issued to a seller of an Acquired Entity and incurred in
connection with a Permitted Acquisition, provided that the aggregate
principal amount of Indebtedness incurred pursuant to this paragraph
(e) shall not exceed (i) $7,500,000 with respect to any Permitted
Acquisition and (ii) $50,000,000 at any time outstanding;
(f) Guarantees in respect of Indebtedness permitted pursuant
to this Section 6.01 (except for Guarantees of the Allied Senior
Notes), provided that any Guarantees in respect of Indebtedness that
are subordinated to the Obligations shall also be subordinated to the
Guarantees in favor of the Lenders under the Loan Documents and to the
Obligations to the same extent as such Indebtedness is subordinated to
the Obligations;
(g) Indebtedness of the Borrower or any wholly owned
Subsidiary to any other wholly owned Subsidiary or the Borrower, so
long as such Indebtedness is subordinated to all Indebtedness incurred
pursuant hereto and pursuant to the Guarantee Agreements;
65
60
(h) Indebtedness (i) of Allied (A) to the Borrower or any
wholly owned Subsidiary, so long as the proceeds of such Indebtedness
are used by Allied solely for purposes permitted under Section 6.09 (it
being understood that such proceeds may not be used to pay any interest
or any other amount in respect of the Allied Senior Notes) and (B) to
the Borrower in the form of an advance in respect of a Permitted
Dividend, or (ii) of the Borrower or any wholly owned Subsidiary to
Allied;
(i) the Senior Subordinated Notes and Guarantees thereof, all
in accordance with the Indenture dated as of December 1, 1996,
governing the Senior Subordinated Notes;
(j) Indebtedness of the Borrower or the Subsidiaries
(including tax exempt financings and Capital Lease Obligations) to
purchase, construct, develop or improve assets in the ordinary course
of business after the Closing Date incurred in the ordinary course of
business after the Closing Date to finance Capital Expenditures
permitted under Section 6.11, provided that the aggregate principal
amount of any Indebtedness incurred pursuant to this paragraph (j)
outstanding at any time shall not exceed (i) at any time that the
Senior Debt Ratio as of the last fiscal quarter for which financial
statements have been delivered pursuant to Section 5.04(a) or (b) is
greater than or equal to 2.50 to 1.00 (after giving pro forma effect to
each proposed incurrence of Indebtedness under this paragraph (j)), 5%
of the consolidated net fixed assets of Allied, the Borrower and the
Subsidiaries as of such time and (ii) at any time that such Senior Debt
Ratio is less than 2.50 to 1.00 (after giving pro forma effect to each
proposed incurrence of Indebtedness under this paragraph (j)), 10% of
the consolidated net fixed assets of Allied, the Borrower and the
Subsidiaries as of such time;
(k) Indebtedness incurred pursuant to any sale and leaseback
transaction permitted by Section 6.04;
(l) Junior Exchange Indebtedness;
(m) the Allied Senior Notes and the Allied Canada Debentures;
(n) extensions, renewals or refinancings of Indebtedness under
paragraphs (a) and (d) so long as (i) such Indebtedness ("Refinancing
Indebtedness") is in an aggregate principal amount not greater than the
aggregate principal amount of the Indebtedness being extended, renewed
or refinanced plus the amount of any premiums required to be paid
thereon and fees and expenses associated therewith, (ii) 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, (iii) 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, (iv) if the
Indebtedness being extended, renewed or refinanced is subordinated to
the Obligations, such Refinancing Indebtedness is subordinated to the
Obligations to the extent of the Indebtedness being extended, renewed
or refinanced, (v) the covenants, events of default and other
provisions thereof (including any Guarantees thereof), taken as a
whole, shall be no less favorable to the Lenders than those contained
in the Indebtedness being refinanced and (vi) at the time and after
giving effect to such extension, renewal or refinancing, no Default or
Event of Default shall have occurred and be continuing; and
66
61
(o) unsecured Indebtedness in addition to that permitted by
paragraphs (a) through (n) above in an aggregate principal amount not
to exceed (i) at any time that the Senior Debt Ratio as of the last
fiscal quarter for which financial statements are available is greater
than or equal to 2.50 to 1.00 (after giving pro forma effect to each
proposed incurrence of Indebtedness under this paragraph (p)),
$25,000,000 and (ii) at any time that such Senior Debt Ratio is less
than 2.50 to 1.00 (after giving pro forma effect to each proposed
incurrence of Indebtedness under this paragraph (p)), $75,000,000.
Notwithstanding anything to the contrary, the Borrower shall not incur
any Indebtedness (other than Revolving Loans or Letters of Credit but only to
the extent that the Aggregate Revolving Credit Exposure outstanding at any time
exceeds the Bank Facility Amount) in reliance upon Section 1008(ix) of the
Senior Subordinated Notes Indenture to the extent that the incurrence of such
Indebtedness would result in there being less than the lesser of (a) $80,000,000
and (b) the Additional Facility Amount in effect at the time of determination
available to be borrowed in reliance upon such Section 1008(ix).
SECTION 6.02. Liens. 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) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of Allied, the Borrower and
the Subsidiaries existing on the date hereof and set forth in Schedule
6.02(a); provided that such Liens shall secure only those obligations
which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition and (ii) such Lien does not apply to any other
property or assets of the Borrower or any Subsidiary (other than
proceeds of the property or asset subject to the Lien);
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
67
62
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(i) 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) by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by Section 6.01, (ii)
such security interests are incurred, and the Indebtedness secured
thereby is created, within 90 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 Subsidiary (other than
the proceeds of the real property, improvements, equipment or other
fixed assets subject to the Lien);
(j) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02, provided that such Lien does not
apply to any additional property or assets of Allied, the Borrower or
any Subsidiary (other than the proceeds of the property or asset
subject to the Lien);
(k) Liens arising out of Capitalized Lease Obligations
permitted under Section 6.01(j), so long as such Liens (i) attach only
to the property subject to such capitalized lease and (ii) do not
interfere with the business of the Borrower or any of the Subsidiaries
in any material respect;
(l) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII which
constitutes an Event of Default thereunder) in respect of which the
Borrower shall in good faith be prosecuting an appeal or proceedings
for review and in respect of which it shall have secured a subsisting
stay of execution pending such appeal or proceedings for review,
provided the Borrower shall have set aside on its books adequate
reserves, in accordance with GAAP, with respect to such judgment or
award; and
(m) any Lien on the property or assets of an Acquired Entity
or the stock of an Acquired Entity securing Indebtedness permitted by
Section 6.01(e); provided that the aggregate amount of Indebtedness
secured by such Liens shall not exceed $35,000,000 at any time
outstanding.
SECTION 6.03. No Other Negative Pledge. Enter into any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any of
its property or assets other than (i) in favor of the Secured Parties, (ii) in
favor of the holders of the Senior Subordinated Notes and the holders of the
Allied Senior Notes or any trustee for such holders, (iii) in connection with
Indebtedness that may be secured by a Lien in compliance with Section 6.02(a),
(c), (j) or (m), provided that such prohibition or condition does not apply to
any property or assets of Allied, the Borrower or the Subsidiaries not subject
to such Lien, (iv) in connection with any lease permitted under Section 6.03
solely to the extent that such lease prohibits a Lien on the lease or the
property
68
63
subject to such lease or (v) pursuant to any agreement entered into by Allied,
the Borrower or any Subsidiary 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 (x) such negative pledge shall
only relate to the property being sold pursuant to such Asset Sale and (y) such
Asset Sale is permitted hereunder.
SECTION 6.04. Sale and Lease-Back Transactions. 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 the Borrower
may enter into any such transaction with respect to any lease that is required
to be capitalized in accordance with GAAP, and in compliance with Section
6.02(k), so long as the aggregate principal amount of Capital Lease Obligations
associated therewith does not exceed $25,000,000 at any time outstanding.
SECTION 6.05. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by Allied and the Borrower (i) existing on the
date hereof in the capital stock of the Subsidiaries (including
investments made in connection with the Acquisition) and (ii) after the
date hereof in the capital stock of the Borrower and the Guarantors, as
applicable;
(b) Permitted Investments;
(c) loans and advances to employees of Allied, the Borrower or
its Subsidiaries for travel, entertainment and relocation expenses in
the ordinary course of business for Allied, the Borrower and its
Subsidiaries;
(d) loans by Allied, the Borrower or any Subsidiary to its
employees in connection with management incentive plans not to exceed
$5,000,000 at any time outstanding; provided, however, that such
limitation shall not apply to loans the proceeds of which are used to
purchase common stock of Allied so long as Allied uses the proceeds
thereof to acquire common stock of the Borrower;
(e) investments constituting Capital Expenditures permitted
under Section 6.11;
(f) loans or advances by the Borrower or any wholly owned
Subsidiary to the Borrower or any wholly owned Subsidiary that are
permitted under Section 6.01(g);
(g) loans or advances by the Borrower or any wholly owned
Subsidiary to Allied or by Allied to the Borrower or any wholly owned
Subsidiary that are permitted by Section 6.01(h);
(h) the capital stock or other ownership interests of any
Subsidiary formed after the date hereof by the Borrower, provided that
(i) such capital stock or interest is pledged to the Collateral Agent
(for the benefit of the Lenders) pursuant to the Pledge Agreement and
(ii) the
69
64
Borrower and such Subsidiary comply with the applicable provisions of
Section 5.11 with respect to such newly formed Subsidiary;
(i) Interest Rate Protection Agreements permitted under
Section 6.01(c); and
(j) one or more non-hostile acquisitions by the Borrower or
any Subsidiary after the Closing Date in which the Borrower or any
Subsidiary is the surviving entity of a business unit (with any
associated assets) located in the United States or Canada or capital
stock or other equity interests (other than Margin Stock) of any other
person organized under the laws of (x) the United States, any State
thereof or the District of Columbia or (y) Canada or any political
subdivision thereof (such assets, in the case of an asset acquisition,
or person, in the case of the acquisition of capital stock or other
equity interests, is referred to herein as the "Acquired Entity") so
long as (i) 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
equity interests, the person so acquired is engaged in, the same line
of business as the Borrower and the Subsidiaries and other business
activities incidental thereto, (ii) the Acquired Entity conducts its
business exclusively in the United States and/or Canada, (iii)
immediately prior to and after giving effect to such acquisition, no
Default or Event of Default shall exist, (iv) promptly after any such
acquisition, the Collateral Agent for the benefit of the Secured
Parties shall be granted a first priority security interest in all
personal property (including capital stock and other securities or
interests, but subject to Liens permitted by Sections 6.02(c), 6.02(j)
and 6.02(m) and other customary and reasonable permitted encumbrances),
except as otherwise provided by the Security Agreement, acquired by the
Borrower as part of such acquisition, and the Borrower shall, and shall
cause any applicable Subsidiary to, execute any documents (including
supplements to the Subsidiary Guarantee Agreement, Security Agreement
and Indemnity, Subrogation and Contribution Agreement, financing
statements, agreements and instruments, and take all action (including
filing financing statements and obtaining and providing consents and
legal opinions) that may be required under applicable law, or that the
Collateral Agent may request, in order to grant, preserve, protect and
perfect such security interests and (v) in the case of an acquisition
of capital stock or other equity interests of a person, the Borrower
acquires a majority of the capital stock or other equity interests of
such person,
provided, however, that if the consideration (including assumption of
indebtedness and other contingent payments other than waste disposal-based
royalties, Acquired Indebtedness and Indebtedness issued pursuant Section
6.01(e) but excluding capital stock issued by Allied) in any such acquisition
exceeds $50,000,000, the prior written consent of the Administrative Agent and
the Required Lenders shall be required with respect to such acquisition. Any
acquisition satisfying each of the criteria set forth in the preceding sentence
is referred to herein as a "Permitted Acquisition"; and
(k) investments in joint ventures engaged in the same line of
business as the Borrower and the Subsidiary or other business
activities incidental thereto in an aggregate amount of not to exceed
$10,000,000.
SECTION 6.06. Mergers, Consolidations, Sales of Assets and
Acquisitions. 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
70
65
of its assets (whether now owned or hereafter acquired), or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that:
(a) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation and
(ii) any Subsidiary (including Allied Finance) may merge into or
consolidate with any other Subsidiary in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than
the Borrower or a wholly owned Subsidiary receives any consideration;
(b) any Subsidiary may change the jurisdiction in which it is
incorporated so long as the new jurisdiction is in the United States;
(c) the Borrower or any Subsidiary (other than Allied Finance)
may make Permitted Acquisitions; and
(d) the Borrower or any Subsidiary (other than Allied Finance)
may conduct an Asset Sale of a type not described in this Section 6.06,
provided that the Net Cash Proceeds of such Asset Sale shall be applied
in the manner set forth under Section 2.13;
provided, further, that any sale, transfer or other disposition of assets or
stock with a fair market value in excess of $5,000,000 and not otherwise
prohibited by this Section 6.06 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).
SECTION 6.07. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its capital stock or set aside any amount
for any such purpose; provided, however, that (i) any Subsidiary may declare and
pay dividends or make other distributions to the Borrower, (ii) Allied, the
Borrower or any Subsidiary may declare and pay dividends solely in shares of its
common stock; (iii) Allied may issue Junior Exchange Indebtedness in exchange
for Designated Preferred Stock; (iv) the Borrower may declare and pay to Allied
(A) Permitted Dividends and (B) other dividends solely to the extent necessary
for Allied to pay for administrative expenses to conduct its business in
accordance with Section 6.09; and (v) so long as no Default or Event of Default
shall have occurred and be continuing, (A) Allied may declare and pay any cash
dividend on any shares of Preferred Stock outstanding on the Closing Date in an
amount not to exceed the stated dividend rate on the Closing Date on such
Preferred Stock (which payments in the aggregate shall not exceed $700,000 for
each fiscal year) and (B) may call for redemption any convertible preferred
stock if the conversion price for such preferred stock is no greater than 80% of
the then market price of the stock into which such preferred stock is redeemable
and may redeem any such shares not converted prior to the applicable date of
redemption.
71
66
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary, except for (x) restrictions under the Senior Subordinated Notes and
the Allied Senior Notes but only to the extent such restriction restricts
dividend payments to Allied by the Borrower or any Subsidiary and (y) pursuant
to any agreement entered into by Allied, the Borrower or any of the Subsidiaries
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 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 6.08. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) with Allied, the Borrower or any wholly owned Subsidiary or (b) that Allied,
the Borrower or any Subsidiary may (i) engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties and (ii)
consummate or enter into, as the case may be, the agreements relating to the
Transactions.
SECTION 6.09. Business of Allied, Borrower, Allied Finance and
Subsidiaries. (a) Engage at any time, (i) in the case of the Borrower and each
of its Subsidiaries, in any business or business activity other than the
business currently conducted by them and business activities reasonably
incidental thereto, (ii) in the case of Allied, in any business or business
activity other than the ownership of all the outstanding stock of the Borrower
and Allied Finance and all activities reasonably incidental thereto and other
than being an obligor under the Allied Senior Notes and (iii) in the case of
Allied Finance, in any business or business activity other than being the
obligor in respect of the Xxxxxxx Debentures, holding the Allied Canada
Debentures or any activity reasonably related to the repayment or termination of
the Xxxxxxx or the Allied Canada Debentures (including changing the jurisdiction
of its incorporation or merging into Allied or the Borrower or with or into any
other Subsidiary).
(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.
SECTION 6.10. Other Indebtedness and Agreements. (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 Allied, the Borrower or any Subsidiary is
outstanding in an aggregate outstanding principal amount in excess of
$10,000,000, 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 Lenders in any material respect; provided, however, that
this Section 6.10(a) shall not apply to any waiver, supplement, amendment,
termination or release with respect to any activity reasonably related to the
repayment or termination of the Allied Canada Debentures.
(b) (i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than scheduled (or with respect to senior
indebtedness held by a person that is not an Affiliate
72
67
of the obligor, mandatory) payments of principal and interest as and when due
(to the extent not prohibited by applicable subordination provisions), in
respect of, or pay, or offer or commit to pay, or directly or indirectly redeem,
repurchase, retire or otherwise acquire for consideration, or set apart any sum
for the aforesaid purposes, any Indebtedness for borrowed money (other than
Indebtedness permitted under Section 6.01(a), (d), (e) or (o) and intercompany
Indebtedness permitted under Section 6.01(g)) of any Loan Party or any
Subsidiary in an outstanding principal amount exceeding $5,000,000, except for
(x) refinancings permitted by Section 6.01(o) and (y) the Loans, (ii) make any
payment or prepayment of any such 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 or (iii)
pay in cash any amount in respect of such Indebtedness that may at the
applicable Loan Party's or Subsidiary's option be paid in kind or in other
securities.
(c) Notwithstanding anything contained in this Section 6.10 to the
contrary,
(i) the Borrower shall be permitted to exchange the Senior
Subordinated Notes for substantially identical notes in accordance with
the Exchange and Registration Rights Agreement dated as of December 5,
1996, relating to the Senior Subordinated Notes; and
(ii) Allied shall be permitted to exchange the Allied Senior
Notes for substantially identical notes in accordance with the Exchange
and Registration Rights Agreement dated as of May 15, 1997, relating to
the Allied Senior Notes.
SECTION 6.11. Capital Expenditures. Permit the aggregate amount of
Capital Expenditures made by Allied, the Borrower and the Subsidiaries, taken as
a whole, in any fiscal year to exceed the amount of Permitted Capital
Expenditures for such fiscal year; provided, however, that (a) the applicable
Base Amount of Permitted Capital Expenditures as set forth in the definition
thereof in any fiscal year ending after December 31, 1997, shall be increased by
the excess, if any, of the Base Amount for the immediately preceding year
(without giving effect to this proviso) over the total amount of Capital
Expenditures made during such immediately preceding year, and (b) in any fiscal
year, the applicable Base Amount as set forth in the definition of Permitted
Capital Expenditure may be increased, at the option of the Borrower, by up to
15% of the applicable Base Amount for the immediately following fiscal year,
provided that to the extent the Borrower so increases the Base Amount in any
such fiscal year, the applicable Base Amount in the immediately following fiscal
year shall be decreased by the amount of such increase.
SECTION 6.12. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be less than the ratio set forth below for such period.
Period Ratio
------ -----
From and including the Closing Date 1.10 to 1.00
through and including December 31, 1997
Thereafter 1.25 to 1.00
73
68
SECTION 6.13. Leverage Ratio. Permit the Leverage Ratio as of the end
of any fiscal quarter falling in any period set forth below to be in excess of
the ratio set forth below for such period.
Period Ratio
------ -----
From and including the Closing Date
through and including June 30, 1997 5.50 to 1.00
From and including September 30, 1997
through and including December 31, 1997 5.25 to 1.00
From and including March 31, 1998
through and including December 31, 1998 4.75 to 1.00
From and including March 31, 1999
through and including December 31, 1999 4.00 to 1.00
From and including March 31, 2000
through and including December 31, 2000 3.50 to 1.00
Thereafter 3.00 to 1.00
SECTION 6.14. Senior Debt Ratio. Permit the Senior Debt Ratio as of the
end of any fiscal quarter falling in any period set forth below to be in excess
of the ratio set forth below for such period.
Period Ratio
------ -----
From and including the Closing Date
through and including December 31, 1997 2.75 to 1.00
From and including March 31, 1998
through and including December 31, 1998 2.50 to 1.00
From and including March 31, 1999
through and including December 31, 1999 2.25 to 1.00
Thereafter 2.00 to 1.00
74
69
SECTION 6.15. Interest Expense Coverage Ratio. Permit the Interest
Expense Coverage Ratio as of the end of any fiscal quarter falling in any period
set forth below to be less than the ratio set forth below for such period.
Period Ratio
------ -----
From and including the Closing Date
through and including December 31, 1997 2.35 to 1.00
From and including March 31, 1998
through and including December 31, 1998 2.75 to 1.00
From and including March 31, 1999
through and including December 31, 1999 3.25 to 1.00
Thereafter 3.50 to 1.00
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C 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 by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
L/C Disbursement or any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of
three Business Days;
(d) default shall be made in the due observance or performance by
Allied, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05, 5.08 or 5.15 or in Article VI;
(e) default shall be made in the due observance or performance by
Allied, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 15 days after
notice thereof from the Administrative Agent or any Lender to the Borrower;
75
70
(f) Allied, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
in a principal amount in excess of $5,000,000, when and as the same shall become
due and payable, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such Indebtedness
or a trustee on its or their behalf (with or without the giving of notice, the
lapse of time or both) to cause, such Indebtedness to become due prior to its
stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Allied, the Borrower or any Subsidiary, or of a substantial part
of the property or assets of Allied, the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Allied, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Allied, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Allied, the Borrower or any
Subsidiary; and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(h) Allied, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Allied, the
Borrower or any Subsidiary or for a substantial part of the property or assets
of Allied, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against Allied, the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of Allied, the Borrower or any Subsidiary to
enforce any such judgment;
(j) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to the
extent that any such loss of perfection or priority results from the failure of
the Collateral Agent to maintain possession of certificates representing
securities pledged under the Pledge Agreement and except to the extent that such
loss is covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such loss is
covered by such title insurance policy;
76
71
(k) any Loan Document shall not be for any reason, or shall be asserted
by any Loan Party not to be, in full force and effect and enforceable in
accordance with its terms; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part (to the Administrative Agent for the account of
each Lender as provided in this Agreement and the Borrower acknowledges that it
shall have an obligation to pay to the Administrative Agent all accrued amounts
owed by the Borrower under this Agreement and under any other Loan Document),
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable (to the Administrative Agent for the
account of each Lender as provided in this Agreement and the Borrower
acknowledges that it shall have an obligation to pay to the Administrative Agent
all accrued amounts owed by the Borrower under this Agreement and under any
other Loan Document), without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent, the Syndication Agent,
the Documentation Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank, Xxxxxxx
Xxxxx Credit Partners L.P. is hereby appointed to act as Syndication Agent and
Citibank, N.A. is hereby appointed to act as Documentation Agent (for purposes
of this Article VIII, the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Collateral Agent are referred to collectively as the
"Agents"). Each of the Lenders and each assignee of any such Lender, hereby
irrevocably authorizes the Agents to take such actions on behalf of such Lender
or assignee or the Issuing Bank and to exercise such powers as are specifically
delegated to the Agents by the terms and provisions hereof and of the other Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent is hereby expressly authorized by the Lenders
and the Issuing Bank, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders and the Issuing Bank all payments of principal
of and interest on the Loans, all payments in respect of L/C Disbursements and
all other amounts due to the
77
72
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Administrative Agent and Collateral Agent are
hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that no Agent shall be under any duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right 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 Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the
78
73
retiring Agent shall be discharged from its duties and obligations hereunder.
After the Agent's resignation hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Allied, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees to reimburse the Agents and each Revolving Credit
Lender agrees to reimburse the Issuing Bank, in each case, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Issuing Bank or the
Agents, as applicable, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders or the Revolving
Credit Lenders, as applicable, that shall not have been reimbursed by the
Borrower, and each Lender agrees to indemnify and hold harmless each Agent and
any of their respective directors, officers, employees or agents, and each
Revolving Credit Lender agrees to indemnify and hold harmless the Issuing Bank
and any of its respective directors, officers, employees or agents, in each case
on demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it in its capacity as the
Issuing Bank or Agent, as applicable, or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower or any other
Loan Party, provided that no Lender shall be liable to the Issuing Bank or an
Agent, as applicable, or any such other indemnified person for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of the Issuing Bank or such Agent, as
applicable, or any of their respective directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents 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 Agents 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 or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
79
74
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. 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 the Borrower or Allied, to it at 00000 Xxxxx Xxxxxxxx-Xxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention of Xx. Xxxxx Xxxxxxx (Telecopy No.
000-000-0000);
(b) if to the Administrative Agent or the Collateral Agent, to Credit
Suisse First Boston, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Xx. Xxxx Xxxxxxxx (Telecopy No. (000) 000-0000);
(c) if to the Syndication Agent, to Xxxxxxx Sachs Credit Partners L.P.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxxx Xxxxx
(Telecopy No. (000) 000-0000);
(d) if to the Documentation Agent, to Citibank, N.A., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Mr. Xxxx Xxxxxxxx (Telecopy No.
212-793-4806);
(e) if to an Issuing Bank (other than Credit Suisse First Boston), to
the address of such Issuing Bank set forth on Schedule 2.01 or in the Assignment
and Acceptance pursuant to which such Issuing Bank shall have become a party
hereto; and if to Credit Suisse First Boston, as Issuing Bank, to the address
set forth in paragraph (c) above; and
(f) if to a Lender, to it at its address (or telecopy number) set forth
on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
Lender shall have become a party 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 if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Allied herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, 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 or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the
80
75
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent, any Lender or the Issuing
Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Allied and the Administrative
Agent, the Syndication Agent and the Documentation 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 permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Allied, the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Issuing Bank or the Lenders that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender, an Affiliate
of such Lender or a Related Fund, (x) the Borrower (so long as no Event of
Default shall have occurred and be continuing) and the Administrative Agent
(and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Bank and the Swingline Lender) must give their prior consent to such
assignment (which consent shall not be unreasonably withheld or delayed) and (y)
the amount of the unused Commitment and Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment) (it being understood that separate assignments that are
made contemporaneously to persons that are Affiliates or a Related Fund shall be
deemed a single assignment for purposes of this sub-clause (y)), (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (iii) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and
not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and
81
76
the other parties hereto as follows: (i) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Term Loan Commitment and Revolving
Credit Commitment, and the outstanding balances of its Term Loans and Revolving
Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Collateral Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Collateral Agent, respectively, by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(d) 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 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 owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Syndication Agent,
the Documentation Agent, the Issuing Bank, the Collateral Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Swingline
Lender, the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Bank and the Swingline
82
77
Lender. No assignment shall be effective unless and until it has been recorded
in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, 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, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Issuing Bank and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
third party for such Lender as a party hereto. In order to facilitate such an
assignment, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to the Borrower by the assigning Lender hereunder.
(i) Neither Allied nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Allied agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank and the Swingline Lender in connection with
the syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative
83
78
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent or
any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the fees,
charges and disbursements of Cravath, Swaine & Xxxxx for the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Collateral Agent,
and, in connection with any such enforcement or protection, the fees, charges
and disbursements of any other counsel for the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent or any Lender.
(b) The Borrower and Allied agree, jointly and severally, to indemnify
the Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, officers, employees,
trustees and agents (each such person being called an "Indemnitee") against, and
to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby (whether or not the Transactions are consummated), (ii) the
use of the proceeds of the Loans or issuance of Letters of Credit, (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release or threatened Release of Hazardous Materials on any Property
or any property owned, leased or operated by any predecessor of Allied, the
Borrower or the Subsidiaries, or any Environmental Claim related in any way to
Allied, the Borrower or the Subsidiaries; 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) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Collateral Agent, any Lender or the Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited 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 indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Allied against any of and all
the obligations of the Borrower or Allied now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
84
79
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, any Lender or the Issuing Bank in exercising any power or
right 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
Syndication Agent, the Documentation Agent, the Collateral 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 this Agreement or any other Loan Document or
consent to any departure by the Borrower or any other Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Borrower or Allied in any case shall entitle the Borrower or Allied to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Allied and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or extend the
date of any mandatory prepayment of principal, or date for the payment of any
interest on any Loan or any date for reimbursement of an L/C Disbursement, or
waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender directly affected thereby, (ii) change or extend the Commitment or
decrease or extend the date for payment of the Commitment Fees or L/C
Participation Fees of any Lender without the prior written consent of such
Lender, (iii) decrease the amount or extend the date for payment of the Issuing
Bank Fees without the prior written consent of each affected Issuing Bank or
(iv) amend or modify the provisions of Section 2.13, 2.17 or 9.04(i), the
provisions of this Section, the definition of the term "Required Lenders" or
release any Guarantor or all or any substantial part of the Collateral, without
the prior written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent, the
Issuing Bank or the Swingline Lender, respectively.
85
80
(c) Notwithstanding anything to the contrary, upon delivery of any
Amendment Certificate, each Lender hereby authorizes the Administrative Agent to
enter into on its behalf an amendment to this Agreement that (i) increases the
Bank Facility Amount to the applicable amount set forth in such Amendment
Certificate and (ii) decreases the Additional Facility Amount by the amount that
the Bank Facility Amount is increased in accordance with subclause (i) above. In
the event that the Bank Facility Amount is increased to $400,000,000 and the
Additional Facility Amount is decreased to zero as a result of any amendment
pursuant to this Section 9.08(c), such amendment shall also delete (i) Section
3.10(c) in its entirety and (ii) the last sentence of Section 6.01 in its
entirety.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement 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 or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation 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 or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations 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 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and
86
81
therein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. 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, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Allied and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, 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 shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Allied or their
respective properties in the courts of any jurisdiction.
(b) Each of Allied 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
the other Loan Documents in any New York State or Federal court. 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.
(c) 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 will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent, the Issuing
Bank and each of the Lenders agrees to keep confidential (and to use its best
efforts to cause its respective agents and representatives to keep confidential)
the Information (as defined below) and all copies thereof, extracts therefrom
and analyses or other materials based thereon, except that the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent, the
Issuing Bank or any Lender shall be permitted to
87
82
disclose Information (a) to such of its respective officers, directors,
employees, agents, professional advisors, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority, (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents, (e) to any direct or indirect
contractual counterparties in swap agreements as long as such contractual
counterparty shall agree to keep such Information confidential, (f) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about such Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (g) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 9.16 or
(ii) becomes available to the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Issuing Bank, any Lender or the Collateral Agent on a
nonconfidential basis from a source other than the Borrower or Allied. For the
purposes of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent, the Issuing Bank or any
Lender based on any of the foregoing) that are received from the Borrower or
Allied and related to the Borrower or Allied, any shareholder of the Borrower or
Allied or any employee, customer or supplier of the Borrower or Allied, other
than any of the foregoing that were available to the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Collateral Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to its disclosure thereto by
the Borrower or Allied, and which are in the case of Information provided after
the date hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.16 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
SECTION 9.17. Modification of Existing Credit Agreement.
Notwithstanding anything to the contrary, the parties hereto acknowledge and
agree that the Total Revolving Credit Commitments being provided hereunder are
set forth in a single agreement for convenience only, and any Loans outstanding
in excess of the Bank Facility Amount are considered by the parties hereto as a
separate credit facility.
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 NORTH AMERICA, INC.,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
88
83
ALLIED WASTE INDUSTRIES, INC.,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
89
84
CREDIT SUISSE FIRST BOSTON, as Issuing
Bank and individually, as a Lender,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Collateral
Agent,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
90
85
CREDIT SUISSE FIRST BOSTON, as Swingline
Lender,
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
91
86
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Syndication Agent and individually,
as a Lender,
by
-------------------------
Name:
Title:
CITIBANK, N.A., as Documentation Agent,
by
-------------------------
Name:
Title:
CITICORP USA, INC., individually, as a
Lender,
by
-------------------------
Name:
Title:
92
87
(OTHER BANKS)
by
-------------------------
Name:
Title:
