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EXHIBIT 10.3
BRIDGE LOAN AGREEMENT
This BRIDGE LOAN AGREEMENT (this "Agreement") is made as of January 21,
1998, by and among USA WASTE SERVICES, INC. (the "Borrower"), a Delaware
corporation having its principal place of business at 0000 Xxxxxx Xxxxxx, First
City Tower, Suite 4000, Xxxxxxx, Xxxxx 00000, and XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK ("Xxxxxx"), a New York state banking association having its
principal place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Agent's Head Office") and each of the other financial institutions party hereto
(collectively, the "Banks"), and Xxxxxx as agent for the Banks (the "Agent").
Section 1.1 DEFINITIONS. The following terms shall have the following
meanings:
Accountants. See Section 23.4(a).
Affected Bank. See Section 19(a).
Agent's Head Office. See preamble.
Agreement. See preamble.
Applicable Eurodollar Rate. The applicable rate per annum of interest
on the Eurodollar Loans as set forth in the Pricing Table.
Applicable Facility Rate. The applicable rate per annum with respect to
the Facility Fee as set forth in the Pricing Table.
Applicable Requirements. See Section 23.10.
Assignment and Acceptance. See Section 34.
Average Quarterly Utilization Amount. See Section 20(c).
Balance Sheet Date. December 31, 1996.
Banks. See preamble.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Agent at the Agent's Head Office as its "prime rate" (it
being understood that such rate is a reference rate and not necessarily the
lowest rate of interest charged by the Agent) or (b) one percent (1%) above the
Overnight Federal Funds Effective Rate.
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Base Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
Borrower. See preamble.
Business Day. Any day, other than a Saturday, Sunday or any day on
which banking institutions in New York, New York are authorized by law to close,
and, when used in connection with a Eurodollar Loan, a Eurodollar Business Day.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CERCLA. See Section 22.15(a).
Certified or certified. With respect to the financial statements of any
Person, such statements as audited by a firm of independent auditors, whose
report expresses the opinion, without qualification, that such financial
statements present fairly the financial position of such Person.
CFO or the CAO. See Section 23.4(b).
City Management. The "Companies" as set forth in Schedule A to the City
Management Acquisition Agreement.
City Management Acquisition. The acquisition of City Management by the
Borrower, pursuant to the terms of the City Management Acquisition Agreement.
City Management Acquisition Agreement. The Stock Purchase Agreement,
dated as of December 9, 1997, among the Borrower, City Management Holdings
Trust, Xxxxxxx X. Xxxxx, the corporations listed on Schedule A thereto, and the
Trust under Indenture Dated August 26, 1997, between Xxxxxxx X. Xxxxx, as Donor,
and Xxxxxxx X. Xxxxx and Yale Xxxxx, as Trustees.
City Management Acquisition Documents. The City Management Acquisition
Agreement and all other material agreements and documents required to be entered
into or delivered pursuant to such agreement or in connection with the City
Management Acquisition, each in the form delivered to the Agent prior to the
Closing Date.
Closing Date. The date on which the conditions precedent set forth in
Section 26 hereof are satisfied.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
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Commitment. With respect to each Bank, such Bank's commitment to make
Loans to the Borrower, determined by multiplying such Bank's Line Percentage by
the Line, as the Line may be reduced hereunder.
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes, or EBIT. For any
period, the Consolidated Net Income (or Deficit) of the Borrower and its
Subsidiaries on a consolidated basis plus the sum of (1) interest expense, (2)
income taxes, (3) up to $50,000,000 in pooling charges actually incurred with
respect to the United Merger, taken as a special charge in the quarter ending
September 30, 1997, (4) up to $6,200,000 related to prepayment penalties in
connection with the Prudential Private Placement Debt and (5) up to $4,000,000
related to prepayment penalties in connection with the United Senior Secured
Notes to the extent that each of items (1) through (5) was deducted in
determining Consolidated Net Income (or Deficit) in the relevant period;
provided, however, that EBIT shall not include extraordinary gains from tax
credits occurring in any quarter commencing with the quarter ending December 31,
1996.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries on a consolidated basis, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP.
Consolidated Net Worth. The sum of the par value of the capital stock
(excluding treasury stock), capital in excess of par or stated value of shares
of capital stock, retained earnings (minus accumulated deficit) and any other
account which, in accordance with GAAP, constitute stockholders' equity, of the
Borrower and its Subsidiaries determined on a consolidated basis, excluding any
effect of foreign currency transaction computed pursuant to Financial Accounting
Standards Board Statement No. 52, as amended, supplemented or modified from time
to time, or otherwise in accordance with GAAP.
Consolidated Tangible Assets. Consolidated Total Assets less the sum
of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, customer lists, brand
names, copyrights, patents and licenses, and rights with respect to the
foregoing; plus
(b) all amounts representing any write-up in the book value of
any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
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Consolidated Total Assets. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
Consolidated Total Capitalization. The sum of Funded Debt plus
Consolidated Net Worth.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest expense required by GAAP to be paid or accrued during such
period on all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, including capitalized interest expense
for such period.
Credit Agreement. That certain Amended and Restated Revolving Credit
Agreement dated as of August 7, 1997 by and among the Borrower, the Guarantors,
Bank of America National Trust and Savings Association, a national banking
association, Xxxxxx, the other financial institutions party thereto and Xxxxxx
as administrative agent and documentation agent.
Default. See Section 28.1.
Defaulting Bank. See Section 19(a).
Disposal. See "Release".
Distribution. The declaration or payment of any dividend or other
return on equity on or in respect of any shares of any class of capital stock,
any partnership interests or any membership interests of any Person, other than
dividends or other such returns payable solely in shares of common stock,
partnership interests or membership units of such Person, as the case may be;
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
Dollars or US$ or U.S. or Dollars. Dollars in lawful currency of the
United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with Section
5.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 22.15(a).
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EPA. See Section 22.15(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower or any of its Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event within the meaning of
Section 4043 of ERISA and the regulations promulgated thereunder with respect to
a Guaranteed Pension Plan as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
Eurodollar Interest Determination Date. For any Interest Period, the
date two Eurodollar Business Days prior to the first day of such Interest
Period.
Eurodollar Lending Office. The office of any Bank that shall be making
or maintaining Eurodollar Loans.
Eurodollar Loans. Loans bearing interest calculated by reference to the
Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Loan, the rate of interest equal to (i) the rate per annum at which the Agent's
Eurodollar Lending Office is offered Dollar deposits at approximately 10:00 a.m.
(New York time) two (2) Eurodollar Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
operations of such Eurodollar Lending Office are customarily conducted, for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Rate Loan of the Agent to which such Interest Period applies, divided by (ii) a
number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable (rounded
upwards to the nearest 1/16 of one percent).
Event of Default. See Section 28.1.
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Facility Fee. See Section 20(b).
Funded Debt. Consolidated Indebtedness of the Borrower and its
Subsidiaries for borrowed money and guarantees of debt for borrowed money
recorded on the Consolidated balance sheet of the Borrower and its Subsidiaries,
including the amount of any Indebtedness of such Persons for Capitalized Leases
which corresponds to principal and any Indebtedness with respect to Permitted
Receivables Transactions.
generally accepted accounting principles or GAAP. (i) When used in
Section 25, whether directly or indirectly through reference to a capitalized
term used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
its Subsidiaries or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantors. Those parties referred to as "Guarantors" under the Credit
Agreement.
Hazardous Substances. See Section 22.15(b).
Indebtedness. Collectively without duplication, whether classified as
Indebtedness, an Investment or otherwise on the obligor's balance sheet, (a) all
indebtedness for borrowed money, (b) all obligations for the deferred purchase
price of property or services (other than trade payables not overdue by more
than ninety (90) days incurred in the ordinary course of business), (c) all
obligations evidenced by notes, bonds, debentures or other similar debt
instruments, (d) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations, liabilities and indebtedness under Capitalized Leases, (f) all
obligations, liabilities or indebtedness (contingent or otherwise) under surety,
performance bonds or any other bonding arrangements, (g) all Indebtedness of
others
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referred to in clauses (a) through (f) above which is guaranteed, or in effect
guaranteed, directly or indirectly in any manner, including through an agreement
(A) to pay or purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (B) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling any Person to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss, (C) to supply funds to or in any
other manner invest in any Person (including any agreement to pay for property
or services irrespective of whether such property is received or such services
are rendered) or (D) otherwise to assure any Person against loss, and (h) all
Indebtedness referred to in clauses (a) through (g) above secured or supported
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured or supported by) any lien or encumbrance
on (or other right of recourse to or against) property (including, without
limitation, accounts and contract rights), even though the owner of the property
has not assumed or become liable, contractually or otherwise, for the payment of
such Indebtedness; provided that if a Permitted Receivables Transaction is
outstanding and is accounted for as a sale of accounts receivable under
generally accepted accounting principles, Indebtedness determined as aforesaid
shall be adjusted to include the additional Indebtedness, determined on a
consolidated basis, which would have been outstanding had such Permitted
Receivables Transaction been accounted for as a borrowing.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in accordance with
this Agreement (i) for any Base Rate Loan the first day of the month; and (ii)
for any Eurodollar Loan, 1, 2, 3 or 6 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in accordance with this Agreement; provided that any
Interest Period which would otherwise end on a day which is not a Business Day
shall be deemed to end on the next succeeding Business Day; provided further
that for any Interest Period for any Eurodollar Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, such Interest Period
shall be deemed to end on the next preceding Business Day; and provided further
that no Interest Period shall extend beyond the Maturity Date.
Investments. All expenditures made by a Person and all liabilities
incurred (contingently or otherwise) by a Person for the acquisition of stock
(other than the stock of wholly owned Subsidiaries), pre-payments for use of
landfill air space in excess of usual and customary industry practice, or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties or other commitments as described
under Indebtedness, or obligations of, any other Person, including without
limitation, the funding of any captive insurance company (other than loans,
advances, capital contributions or transfers of property to any wholly owned
Subsidiaries or guaranties with respect to Indebtedness of wholly owned
Subsidiaries). In determining the aggregate amount of Investments outstanding at
any particular time: (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still
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outstanding; (b) there shall be included as an Investment all interest accrued
with respect to Indebtedness constituting an Investment unless and until such
interest is paid; (c) there shall be deducted in respect of each such Investment
any amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (d)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Line. See Section 2(a).
Line Percentage. With respect to each Bank the percentage set forth on
Schedule 1.
Loan. Any loan made or to be made to the Borrower pursuant to Section 2
hereof.
Loan Request. See Section 2(b).
Loan Documents. This Agreement, the Notes, and any documents,
instruments or agreements executed in connection with any of the foregoing, each
as amended, modified, supplemented, or replaced from time to time.
Majority Banks. The Banks whose Line Percentages equal fifty-one
percent (51%); provided that in the event that the Line has been terminated, the
Majority Banks shall be the Banks holding fifty-one percent (51%) of the
aggregate outstanding principal amount of the Obligations on such date.
Material Subsidiary. Any Subsidiary which, at the time such
determination is made, (a) has assets, revenues, or liabilities equal to at
least $8,000,000, or (b) is the holder of or the applicant for a permit to
operate a solid waste facility pursuant to RCRA or any analogous state law.
Maturity Date. The earliest of (a) December 31, 1998, (b) the date
after January 1, 1998 on which the Borrower closes on any bond and/or equity
offering or series of bond offerings which raises net proceeds in the aggregate
in excess of $300 million or (c) such other date on which all Loans may become
due and payable pursuant to the terms hereof.
Moody's. Xxxxx'x Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate.
New Lending Office. See Section 9(c).
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Non U.S. Bank. See Section 9(b).
Notes. See Section 3.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent arising or incurred under this
Agreement or any other Loan Documents or in respect of any of the Loans made
under this Agreement or any other Loan Documents or any other instrument at any
time evidencing any thereof individually or collectively, existing on the date
of this Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise.
Overnight Federal Funds Effective Rate. The overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. See Section 24.2.
Permitted Receivables Transaction. Any sale or sales of, and/or
securitization of, any accounts receivable of the Borrower and/or any of its
Subsidiaries (the "Receivables") pursuant to which (a) the Borrower and its
Subsidiaries realize aggregate net proceeds of not more than $150,000,000 at any
one time outstanding, including, without limitation, any revolving purchase(s)
of Receivables where the maximum aggregate uncollected purchase price (exclusive
of any deferred purchase price) for such Receivables at any time outstanding
does not exceed $150,000,000, and (b) which Receivables shall not be discounted
more than 25%.
Person. Any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or political
subdivision thereof.
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Pricing Table:
----------- --------------------------------------- -------------------- ------------------
APPLICABLE
SENIOR PUBLIC APPLICABLE EURODOLLAR
LEVEL DEBT RATING FACILITY RATE RATE
(PER ANNUM) (PER ANNUM)
----------- --------------------------------------- -------------------- ------------------
1 At least A- by Standard & Poor's or 0.0600% Eurodollar Rate
at least A3 by Moody's plus 0.1650%
----------- --------------------------------------- -------------------- ------------------
2 At least BBB+ by Standard & Poor's or 0.0800% Eurodollar Rate
at least Baa1 by Moody's plus 0.1950%
----------- --------------------------------------- -------------------- ------------------
3 At least BBB by Standard & Poor's or 0.0900% Eurodollar Rate
at least Baa2 by Moody's plus 0.2600%
----------- --------------------------------------- -------------------- ------------------
4 At least BBB- by Standard & Poor's or 0.1250% Eurodollar Rate
at least Baa3 by Moody's plus 0.3250%
----------- --------------------------------------- -------------------- ------------------
5 At least BB+ by Standard & Poor's or 0.2000% Eurodollar Rate
at least Ba1 by Moody's plus 0.5500%
----------- --------------------------------------- -------------------- ------------------
6 If no other level applies 0.2500% Eurodollar Rate
plus 0.6250%
----------- --------------------------------------- -------------------- ------------------
The applicable rates charged for any day shall be determined by the Senior
Public Debt Rating in effect as of that day.
RCRA. See Section 22.15(a).
Real Property. All real property heretofore, now, or hereafter owned,
operated, or leased by the Borrower or any of its Subsidiaries.
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Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall
have the meaning specified in the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Section 6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided, that in the event either CERCLA or RCRA is amended so as
to broaden the meaning of any term defined thereby, such broader meaning shall
apply as of the effective date of such amendment and provided further, to the
extent that the laws of Canada or a state, province, territory or other
political subdivision thereof wherein the property lies establish a meaning for
"Release" or "Disposal" which is broader than specified in either CERCLA, or
RCRA, such broader meaning shall apply to the Borrower's or any of its
Subsidiaries' activities in that state, province, territory or political
subdivision.
Replacement Bank. See Section 19(a).
Replacement Notice. See Section 19(a).
Sanifill. Sanifill, Inc., a Delaware corporation having its chief
executive office at 0000 Xxxxxx Xxxxxx, First City Tower, Suite 4000, Xxxxxxx,
Xxxxx 00000.
Sanifill Convertible Subordinated Debt. That certain indenture dated as
of March 1, 1996, by and between Sanifill and Texas Commerce Bank National
Association as Trustee, as in effect on August 7, 1997, provided, that the
Obligations shall be "Senior Indebtedness" thereunder.
Senior Public Debt Rating. The rating(s) of the Borrower's public
unsecured long-term senior debt, without third party credit enhancement, issued
by Moody's and/or Standard & Poor's; or in the event no public unsecured
long-term senior debt is outstanding, the rating(s) of this credit facility
issued by Moody's and/or Standard & Poor's upon the request of the Borrower;
provided that until such time as the Borrower receives such rating(s) on such
public unsecured long-term senior debt or this credit facility, the Borrower's
corporate credit rating by Standard & Poor's shall apply.
Standard & Poor's. Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the
outstanding capital stock or other interest entitled to vote generally.
United. United Waste Systems, Inc., a Delaware corporation having its
chief executive office at Four Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000.
United Indenture. That certain indenture dated as of June 5, 1996
between United and Bankers Trust Company, as trustee, in the principal amount of
$150,000,000 due June 1, 2001.
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United Merger. The merger of United and Riviera Acquisition
Corporation, a Subsidiary of the Borrower, pursuant to the terms of the United
Merger Agreement.
United Merger Agreement. The Agreement and Plan of Merger dated as of
April 13, 1997 by and among United, the Borrower and Riviera Acquisition
Corporation.
United Senior Secured Notes. That certain Secured Note Agreement among
United and the purchasers listed in the schedule attached thereto dated as of
September 1, 1995 in the principal amount of $75,000,000 due September 1, 2005.
Utilization Fee. See Section 20(c).
Section 1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement (including this
Agreement) shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein.
(h) Reference to a particular "Section " refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
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Section 2. REVOLVING CREDIT FACILITY.
(a) Upon the terms and pursuant to the conditions of this
Agreement, each of the Banks severally agrees to make available to the Borrower
upon request such Bank's Line Percentage of an unsecured revolving line of
credit not to exceed Three Hundred Million Dollars ($300,000,000) (the "Line").
Notwithstanding any other provision hereof, the Line shall terminate
automatically and without necessity of any demand or other action by the Agent
and the Banks on the Maturity Date. Subject to all of the foregoing, any
extension of credit under the Line shall be subject to the terms and conditions
set forth below.
(b) The Borrower shall give to the Agent written notice in the
form of Exhibit A hereto (or telephonic notice confirmed in writing or a
facsimile in the form of Exhibit A hereto) of each Loan requested hereunder (a
"Loan Request") not later than 11:00 a.m. (New York time) on the proposed
Drawdown Date (in the case of Base Rate Loans) and 11:00 a.m. (New York time)
three (3) Eurodollar Business Days prior to the proposed Drawdown Date (in the
case of Eurodollar Loans) of the principal amount of such Loan (which shall be
in a minimum amount of $10,000,000). Each such Loan Request (which shall be
irrevocable) shall specify the principal amount of the loan requested, whether
such Loan is requested as a Base Rate Loan or a Eurodollar Loan, the proposed
Drawdown Date of such Loan and, in the case of Eurodollar Loans, the Interest
Period relating thereto. Each Loan Request shall constitute a representation and
warranty by the Borrower that the conditions set forth in Section 26 and Section
27, as the case may be, have been satisfied on the date of such request. Loan
requests made hereunder shall be irrevocable and binding on the Borrower, and
shall obligate the Borrower to accept the Loan requested from the Banks on the
proposed Drawdown Date.
(c) Each of the representations and warranties made by the
Borrower to the Banks or the Agent in this Agreement or any other Loan Document
shall be true and correct in all material respects when made and shall, for all
purposes of this Agreement, be deemed to be repeated by the Borrower on and as
of the date of the submission of a Loan Request and on and as of the Drawdown
Date of any Loan (except to the extent (i) of changes resulting from
transactions contemplated or permitted by this Agreement and the other Loan
Documents, (ii) of changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse to the business, assets or
financial condition of the Borrower and its Subsidiaries as a whole, or (iii)
that such representations and warranties expressly relate only to an earlier
date).
(d) The Borrower shall have the right at any time and from
time to time upon three (3) Business Days' prior written notice to the Agent to
reduce by $25,000,000 or a greater amount or terminate entirely, the Line,
whereupon each Bank's Commitment shall be reduced pro rata in accordance with
such Bank's Line Percentage of the amount specified in such notice or, as the
case may be, terminated, provided that at no time may (i) the Line be reduced to
an amount less than the sum of all Loans then outstanding. No reduction or
termination of the Line once made may be revoked; the portion of the Line
reduced or terminated may not be reinstated; and
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amounts in respect of such reduced or terminated portion may not be reborrowed.
The Agent will notify the Banks promptly after receiving any notice delivered by
the Borrower pursuant to this Section 2(d) and will distribute to each Bank a
revised Schedule 1 to this Agreement.
(e) The Agent shall promptly notify each Bank of each Loan Request
received by the Agent (i) on the proposed Drawdown Date of any Base Rate Loan,
or (ii) three (3) Eurodollar Business Days prior to the proposed Drawdown Date
of any Eurodollar Loan.
Section 3. THE NOTES. The Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit B attached
hereto (each, a "Note"), dated as of the date hereof and completed with the
appropriate insertions. One Note shall be payable to the order of each Bank in
an amount equal to its Line Percentage times the Line, and shall represent the
obligation of the Borrower to pay such Bank such principal amount or, if less,
the outstanding principal amount of all Loans made by such Bank, plus interest
accrued thereon, as set forth herein. The Borrower irrevocably authorizes each
Bank, to make or cause to be made, in connection with a Drawdown Date of any
Loan or at the time of receipt of any payment of principal or interest, an
appropriate notation on its records reflecting the making of the Loan or the
receipt of such payment (as the case may be). The outstanding amount of the
Loans set forth on such Bank's record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount shall not limit or
otherwise affect the obligations of the Borrower hereunder to make payments of
principal or interest when due.
Section 4. INTEREST. The outstanding principal amount of the Loans
shall bear interest (to the extent permitted by applicable law) at the rate per
annum equal to the Base Rate on Base Rate Loans or the Applicable Eurodollar
Rate on Eurodollar Loans. Interest shall be payable (a) monthly in arrears on
the first Business Day of each month, commencing April 1, 1998, on Base Rate
Loans, (b) on the last day of the applicable Interest Period, and if such
Interest Period is longer than three months, also on the last day of the third
month following the commencement of such Interest Period, on Eurodollar Loans,
and (c) on the Maturity Date for all Loans. Notwithstanding any other term of
this Agreement or the Notes, any other Loan Document or any other document
referred to herein or therein, the maximum amount of interest which may be
charged to or collected from any Person liable hereunder or under the Notes by
any Bank shall be absolutely limited to, and shall in no event exceed, the
maximum amount of interest which could lawfully be charged or collected by such
Bank under applicable laws (including, to the extent applicable, the provisions
of Section 5197 of the Revised Statutes of the United States of America, as
amended, and 12 U.S.C. Section 85, as amended).
Section 5. ELECTION OF EURODOLLAR RATE.
(a) At the Borrower's option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrower may (i) elect to
convert any Base
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Rate Loan or a portion thereof to a Eurodollar Loan, (ii) at the time of any
Loan Request, specify that such requested Loan shall be a Eurodollar Loan, or
(iii) upon expiration of the applicable Interest Period, elect to maintain an
existing Eurodollar Loan as such, provided that the Borrower gives notice to the
Agent pursuant to Section 5(b) hereof. Upon determining any Eurodollar Rate, the
Agent shall forthwith provide notice thereof to the Borrower and the Banks, and
such notice shall be considered prima facie evidence binding upon the Borrower,
absent manifest error.
(b) Three (3) Eurodollar Business Days prior to the making of
any Eurodollar Loan or the conversion of any Base Rate Loan to a Eurodollar
Loan, or, in the case of an outstanding Eurodollar Loan, the expiration date of
the applicable Interest Period, the Borrower shall give written, telex or
facsimile notice received by the Agent not later than 11:00 a.m. (New York time)
of its election pursuant to Section 5(a). Each such notice (which shall be
irrevocable and binding) shall specify the amount of the Loans to be borrowed or
maintained as or converted to Eurodollar Loans and the duration of the proposed
Interest Period relating thereto (which must be 1, 2, 3 or 6 months). If the
Borrower shall fail to give the Agent notice of its election hereunder together
with all of the other information required hereunder, whether at the end of an
Interest Period or otherwise, such Loan shall be deemed a Base Rate Loan. The
Agent shall promptly notify the Banks in writing (or by telephone confirmed in
writing or by facsimile) of such election.
(c) Notwithstanding anything herein to the contrary, the
Borrower may not specify an Interest Period that would extend beyond the
Maturity Date.
(d) No conversion of Loans pursuant to this Section 5 may
result in Eurodollar Loans that are less than $5,000,000. In no event shall the
Borrower have more than eight (8) different Interest Periods for borrowings of
Eurodollar Loans outstanding at any time.
(e) Subject to the terms and conditions of Section 16 hereof,
if any affected Bank demands compensation under Section 13(c) or (d) with
respect to any Eurodollar Loan, the Borrower may at any time, upon at least
three (3) Business Days' prior written notice to the Agent, elect to convert
such Eurodollar Loan into a Base Rate Loan (on which interest and principal
shall be payable contemporaneously with the related Eurodollar Loans of the
other Banks). Thereafter, and until such time as the affected Bank notifies the
Agent that the circumstances giving rise to the demand for compensation under
Section 13(c) or (d) no longer exist, all requests for Eurodollar Loans from
such affected Bank shall be deemed to be requests for Base Rate Loans. Once the
affected Bank notifies the Agent that such circumstances no longer exist, the
Borrower may elect that the principal amount of each such Loan converted
hereunder shall again bear interest as Eurodollar Loans beginning on the first
day of the next succeeding Interest Period applicable to the related Eurodollar
Loans of the other Banks.
Section 6. FUNDS FOR LOANS. Not later than 1:00 p.m. (New York time) on
the proposed Drawdown Date, each of the Banks will make available to the Agent,
at the Agent's Head Office, in immediately available funds, the amount of its
Line Percentage of the amount of the requested Loan. Upon receipt from each Bank
of such amount,
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and upon satisfaction of the other conditions set forth herein, the Agent will
make available to the Borrower the aggregate amount of such Loans made available
by the Banks. The failure or refusal of any Bank to make available to the Agent
at the aforesaid time and place on any Drawdown Date the amount of its Line
Percentage of the requested Loan shall not relieve any other Bank from its
several obligations hereunder to make available to the Agent the amount of such
Bank's Line Percentage of any requested Loan.
Section 7. MATURITY OF THE LOANS. The Loans shall be due and payable on
the Maturity Date. The Borrower promises to pay on the Maturity Date all Loans,
together with any and all accrued and unpaid interest thereon and any fees and
other amounts owing hereunder.
Section 8. OPTIONAL PREPAYMENTS OR REPAYMENTS OF LOANS. Subject to the
terms and conditions of hereunder (including, without limitation, Section 16) ,
the Borrower shall have the right, at its election, to repay or prepay the
outstanding amount of the Loans, as a whole or in part, at any time without
penalty or premium. The Borrower shall give the Agent, no later than 11:00 a.m.
(New York time) on the proposed date of prepayment or repayment of any Base Rate
Loans, and no later than 11:00 a.m. (New York Time) one (1) Eurodollar Business
Day prior to the proposed date of prepayment or repayment of any Eurodollar Rate
Loans, written notice (or telephonic notice confirmed in writing or by
facsimile) of any proposed prepayment or repayment pursuant to this Section 8,
specifying the proposed date of prepayment or repayment of Loans and the
principal amount to be paid. The Agent shall promptly notify each Bank by
written notice (or telephonic notice confirmed in writing or by facsimile) of
such notice of payment.
Section 9. PAYMENTS.
(a) All payments of principal, interest, fees and any other
amounts due hereunder or under any of the other Loan Documents shall be made to
the Agent at the Agent's Head Office in immediately available funds by 11:00
a.m. (New York time) on any due date. Subject to the provisions of Section 42,
if a payment is received by the Agent at or before 1:00 p.m. (New York time) on
any Business Day, the Agent shall on the same Business Day transfer in
immediately available funds to each of the Banks, their pro-rata portion of such
payment in accordance with their respective Line Percentages. If such payment is
received by the Agent after 1:00 p.m. (New York time) on any Business Day, such
transfer shall be made by the Agent to the applicable Bank(s) on the next
Business Day. In the event that the Agent fails to make such transfer to any
Bank as set forth above, the Agent shall pay to such Bank on demand an amount
equal to the product of (i) the average, computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by such Bank for
funds acquired by such Bank during each day included in such period, times (ii)
the amount equal to such Bank's Line Percentage of such payment, times (iii) a
fraction, the numerator of which is the number of days that elapse from and
including the date of payment to and including the date on which the amount due
to such Bank shall become immediately available to such Bank, and the
denominator of which is 365. A statement of such Bank submitted to the Agent
with respect to any amounts owing
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under this paragraph shall be prima facie evidence of the amount due and owing
to such Bank by the Agent.
(b) Each Bank that is not incorporated or organized under the
laws of the United States of America or a state thereof or the District of
Columbia (a "Non-U.S. Bank") agrees that, prior to the first date on which any
payment is due to it hereunder, it will deliver to the Borrower and the Agent
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Non-U.S. Bank is entitled to receive payments under this Agreement and
the Notes payable to it, without deduction or withholding of any United States
federal income taxes. Each Non-U.S. Bank that so delivers a Form 1001 or 4224
pursuant to the preceding sentence further undertakes to deliver to each of the
Borrower and the Agent two further copies of Form 1001 or 4224 or successor
applicable form, or other manner of certification, as the case may be, on or
before the date that any such letter or form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, and such extensions or renewals
thereof as may reasonably be requested by the Borrower, certifying in the case
of a Form 1001 or 4224 that such Non-U.S. Bank is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Non-U.S. Bank from duly
completing and delivering any such form with respect to it and such Non-U.S.
Bank advises the Borrower that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(c) The Borrower shall not be required to pay any additional
amounts to any Non-U.S. Bank in respect of United States Federal withholding tax
pursuant to this Agreement 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. Bank became a party to this Agreement or, with respect to
payments to a different lending office designated by the Non-U.S. Bank as its
applicable lending office (a "New Lending Office"), the date such Non-U.S. Bank
designated such New Lending Office with respect to a Loan; provided, however,
that this clause (i) shall not apply to any transferee or New Lending Office as
a result of an assignment, transfer or designation made at the request of the
Borrower; and provided further, however, that this clause (i) shall not apply to
the extent the indemnity payment or additional amounts any transferee, or Bank
through a New Lending Office, would be entitled to receive without regard to
this clause (i) do not exceed the indemnity payment or additional amounts that
the Person making the assignment or transfer to such transferee, or Bank making
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, 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. Bank to comply with the provisions of paragraph (b)
above.
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(d) Notwithstanding the foregoing, each Bank agrees to use
reasonable efforts (consistent with legal and regulatory restrictions) to change
its lending office to avoid or to minimize any amounts otherwise payable under
this Agreement in each case solely if such change can be made in a manner so
that such Bank, in its sole determination, suffers no legal, economic or
regulatory disadvantage.
Section 10. MANDATORY REPAYMENTS OF THE LOANS. If at any time
the sum of the outstanding amount of the Loans exceeds the Line, whether by
reduction of the Line or otherwise, then the Borrower shall immediately pay the
amount of such excess to the Agent for application to the Loans subject to
Section 16 hereunder.
Section 11. COMPUTATIONS. Except as otherwise expressly
provided herein, all computations of interest or fees shall be based on a
360-day year and paid for the actual number of days elapsed, except that
computations of the Agent's "prime rate" shall be based on a 365 or 366, as
applicable, day year and paid for the actual number of days elapsed. Whenever a
payment hereunder or any of the other Loan Documents becomes due on a day that
is not a Business Day, the due date for such payment shall be extended to the
next succeeding Business Day, and interest shall accrue during such extension;
provided that, for any Interest Period for any Eurodollar Loan, if such next
succeeding Business Day falls in the next succeeding calendar month or after the
Maturity Date, it shall be deemed to end on the next preceding Business Day.
Section 12. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR
RATE. Notwithstanding any other provision of this Agreement (other than the last
sentence of Section 4) if (a) the introduction of any change in, or any change
in the interpretation of, any law or regulation applicable to any Bank or the
Agent shall make it unlawful, or any central bank or other governmental
authority having jurisdiction thereof shall assert that it is unlawful, for any
Bank or the Agent to perform its obligations in respect of any Eurodollar Loans,
or (b) if any Bank or the Agent, as applicable, shall reasonably determine with
respect to Eurodollar Loans that (i) by reason of circumstances affecting any
Eurodollar interbank market, adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be applicable during any
Interest Period, or (ii) deposits of Dollars in the relevant amount for the
relevant Interest Period are not available to such Bank or the Agent in any
Eurodollar interbank market, or (iii) the Eurodollar Rate does not or will not
accurately reflect the cost to the Bank or the Agent of obtaining or maintaining
the applicable Eurodollar Loans during any Interest Period, then such Bank or
the Agent shall promptly give telephonic, telex or cable notice of such
determination to the Borrower (which notice shall be conclusive and binding upon
the Borrower). Upon such notification by such Bank or the Agent, the obligation
of the Banks and the Agent to make Eurodollar Loans shall be suspended until the
Banks or the Agent, as the case may be, determine that such circumstances no
longer exist, and to the extent permitted by law the outstanding Eurodollar
Loans shall continue to bear interest at the applicable rate based on the
Eurodollar Rate until the end of the applicable Interest Period, and thereafter
shall be deemed converted to Base Rate Loans in equal principal amounts of such
former Eurodollar Loans.
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Section 13. ADDITIONAL COSTS, ETC. If any present or future
applicable law (which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or by
any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank by any central bank or other fiscal, monetary or
other authority, whether or not having the force of law) shall:
(a) subject such Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Agreement, the
other Loan Documents, such Bank's Commitment, or the Loans (other than taxes
based upon or measured by the income or profits of such Bank imposed by the
jurisdiction of its incorporation or organization, or the location of its
lending office); or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits of such Bank imposed by the jurisdiction
of its incorporation or organization, or the location of its lending office) of
payments to such Bank of the principal or of the interest on any Loans or any
other amounts payable to such Bank under this Agreement or the other Loan
Documents; or
(c) except as provided in Section 14 or as otherwise reflected
in the Base Rate or the Eurodollar Rate, impose or increase or render applicable
(other than to the extent specifically provided for elsewhere in this Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against assets
held by, or deposits in or for the account of, or loans by, or commitments of,
an office of any Bank with respect to this Agreement or the other Loan
Documents, such Bank's Commitment, or the Loans; or
(d) impose on such Bank any other conditions or requirements
with respect to this Agreement, the other Loan Documents, the Loans, such Bank's
Commitment, or any class of loans or commitments of which any of the Loans or
such Bank's Commitment, forms a part, and the result of any of the foregoing is:
(i) to increase the cost to such Bank of making,
funding, issuing, renewing, extending or maintaining the Loans or such
Bank's Commitment, as applicable;
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank hereunder on account of such Bank's
Commitment or the Loans; or
(iii) to require such Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
from the Borrower hereunder,
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THEN, and in each such case, the Borrower, will, upon demand made by such Bank
at any time and from time to time as often as the occasion therefore may arise
(which demand shall be accompanied by a statement setting forth the basis of
such demand which shall be conclusive absent manifest error), pay such
reasonable additional amounts as will be sufficient to compensate such Bank for
such additional costs, reduction, payment or foregone interest or other sum.
Section 14. CAPITAL ADEQUACY. If any Bank shall have determined that,
after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or any corporation controlling such
Bank) as a consequence of such Bank's obligations hereunder to a level below
that which such Bank (or any corporation controlling such Bank) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank, the Borrower, shall pay to such Bank such additional amount or
amounts as will, in such Bank's reasonable determination, fairly compensate such
Bank (or any corporation controlling such Bank) for such reduction. Each Bank
shall allocate such cost increases among its customers in good faith and on an
equitable basis.
Section 15. CERTIFICATE. A certificate setting forth the additional
amounts payable pursuant to Section 13 or Section 14 and a reasonable
explanation of such amounts which are due, submitted by any Bank to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing.
Section 16. EURODOLLAR INDEMNITY. The Borrower agrees to indemnify the
Banks and the Agent, and to hold them harmless from and against any reasonable
loss, cost or expense that any such Bank and the Agent may sustain or incur as a
consequence of (a) the default by the Borrower in payment of the principal
amount of or any interest on any Eurodollar Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by any
Bank or the Agent to lenders of funds obtained by it in order to maintain its
Eurodollar Loans, (b) the default by the Borrower in making a borrowing of a
Eurodollar Loan or conversion of a Eurodollar Loan or a prepayment of a
Eurodollar Loan other than pursuant to the terms hereof after the Borrower has
given (or is deemed to have given) notice hereunder, and (c) the making of any
payment of a Eurodollar Loan, or the making of any conversion of any Eurodollar
Loan to a Base Rate Loan, or the reallocation of any Eurodollar Loan on a day
that is not the last day of the applicable Interest Period with respect thereto.
Such loss or reasonable expense shall include an amount equal to the excess, if
any, as reasonably determined by each Bank of (i) its cost of obtaining the
funds for the Eurodollar Loan being paid, prepaid, converted, not converted,
reallocated, or not borrowed, as the case may be (based on the Eurodollar Rate)
for the period from the date of such payment, prepayment, conversion, or failure
to borrow or
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convert, as the case may be, to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for the Loan
which would have commenced on the date of such failure to borrow) over (ii) the
amount of interest (as reasonably determined by such Bank) that would be
realized by such Bank in reemploying the funds so paid, prepaid, converted, or
not borrowed, converted, or prepaid for such period or Interest Period, as the
case may be, which determinations shall be conclusive absent manifest error.
Section 17. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
the Base Rate plus two percentage points, until such amount shall be paid in
full (after as well as before judgment).
Section 18. REASONABLE EFFORTS TO MITIGATE. Each Bank agrees that as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would cause it to be affected under Section
Section 12, 13 or 14, such Bank will give notice thereof to the Borrower, with a
copy to the Agent, and, to the extent so requested by the Borrower and not
inconsistent with such Bank's internal policies, such Bank shall use reasonable
efforts and take such actions as are reasonably appropriate if as a result
thereof the additional moneys which would otherwise be required to be paid to
such Bank pursuant to such sections would be materially reduced, or the
illegality or other adverse circumstances which would otherwise require a
conversion of such Loans or result in the inability to make such Loans pursuant
to such sections would cease to exist, and in each case if, as determined by
such Bank in its sole discretion, the taking such actions would not adversely
affect such Loans or such Bank or otherwise be disadvantageous to such Bank.
Section 19. REPLACEMENT OF BANKS; ADVANCES BY AGENT.
(a) Replacement of Banks. If any Bank (an "Affected Bank") (i)
makes demand upon the Borrower for (or if the Borrower is otherwise required to
pay) amounts pursuant to Section Section 13 or 14, (ii) is unable to make or
maintain Eurodollar Loans as a result of a condition described in Section 12 or
(iii) defaults in its obligation to make Loans in accordance with the terms of
this Agreement (such Bank being referred to as a "Defaulting Bank"), the
Borrower may, within 90 days of receipt of such demand, notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation or causing Section 12 to be applicable), or default, as the case
may be, by notice (a "Replacement Notice") in writing to the Agent and such
Affected Bank (A) request the Affected Bank to cooperate with the Borrower in
obtaining a replacement bank satisfactory to the Agent and the Borrower (the
"Replacement Bank"); (B) request the non-Affected Banks to acquire and assume
all of the Affected Bank's Loans, but none of such Banks shall be
under an obligation to do so; or (C) designate a Replacement Bank reasonably
satisfactory to the Agent. If any satisfactory Replacement Bank shall be
obtained, and/or any of the non-Affected Banks shall agree to acquire and assume
all of the Affected Bank's Loans and Commitment
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then such Affected Bank shall, so long as no Event of Default shall have
occurred and be continuing, assign, in accordance with Section 34, all of its
Commitment, Loans, Notes and other rights and obligations under this Agreement
and all other Loan Documents to such Replacement Bank or non-Affected Banks, as
the case may be, in exchange for payment of the principal amount so assigned and
all interest and fees accrued on the amount so assigned, plus all other
Obligations then due and payable to the Affected Bank; provided, however, that
(x) such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Affected Bank
and such Replacement Bank and/or non-Affected Banks, as the case may be, and (y)
prior to any such assignment, the Borrower shall have paid to such Affected Bank
all amounts properly demanded and unreimbursed under Section Section 13, 14 and
16. Upon the effective date of such assignment, the Borrower shall issue
replacement Notes to such Replacement Bank and/or non-Affected Banks, as the
case may be, and such Replacement Bank shall become a "Bank" for all purposes
under this Agreement and the other Loan Documents.
(b) Advances by Agent. The Agent may (unless earlier notified
to the contrary by any Bank by 12:00 noon (New York time) one (1) Business Day
prior to any Drawdown Date) assume that each Bank has made available (or will
before the end of such Business Day make available) to the Agent the amount of
such Bank's Line Percentage with respect to the Loans to be made on such
Drawdown Date, and the Agent may (but shall not be required to), in reliance
upon such assumption, make available to the Borrower a corresponding amount. If
any Bank makes such amount available to the Agent on a date after such Drawdown
Date, such Bank shall pay the Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average annual interest rate paid by the Agent for federal funds
acquired by the Agent, during each day included in such period times (ii) the
amount equal to such Bank's Line Percentage of such Loan, times (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to but not including the date on which the amount
equal to such Bank's Line Percentage of such Loans shall become immediately
available to the Agent, and the denominator of which is 365. A statement of the
Agent submitted to such Bank with respect to any amounts owing under this
paragraph shall be prima facie evidence of the amount due and owing to the Agent
by such Bank. If such amount is not in fact made available to the Agent by such
Bank within three (3) Business Days of such Drawdown Date, the Agent shall be
entitled to recover such amount from the Borrower, with interest thereon at the
applicable rate per annum.
Section 20. FEES AND EXPENSES.
(a) Whether or not the transactions contemplated herein shall
be consummated, the Borrower hereby promises to reimburse the Agent for all
reasonable out-of-pocket fees and disbursements (including all reasonable
attorneys' fees and expenses) incurred or expended in connection with the
preparation, filing or recording, or interpretation of this Agreement, the other
Loan Documents, or any amendment, modification, approval, consent or waiver
hereof or thereof. The Borrower further promises to reimburse the Agent and the
Banks for all reasonable out-of-pocket fees
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and disbursements (including all reasonable legal fees and the allocable cost of
in-house attorneys' fees) incurred or expended in connection with the
enforcement of any Obligations or the satisfaction of any indebtedness of the
Borrower hereunder or under any other Loan Document, or in connection with any
litigation, proceeding or dispute hereunder in any way related to the credit
hereunder.
(b) The Borrower agrees to pay to the Agent for the account of
the Banks a fee (the "Facility Fee") on the Line equal to the Applicable
Facility Rate multiplied by the Line. The Facility Fee shall be payable for the
period from and after the Closing Date quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter commencing
on April 1, 1998 with a final payment on the Maturity Date (or on the date of
termination in full of the Line, if earlier). The Facility Fee shall be
distributed pro rata among the Banks in accordance with each Bank's Line
Percentage.
(c) In the event that the average outstanding amount of the
Loans (as defined in the Credit Agreement) plus the average Maximum Drawing
Amount of the Letters of Credit (as defined in the Credit Agreement) in any
calendar quarter (collectively, the "Average Quarterly Utilization Amount")
exceeds fifty percent (50%) of the Total Commitment (as defined in the Credit
Agreement) in effect during such calendar quarter, the Borrower agrees to pay to
the Agent for the account of the Banks a fee (the "Utilization Fee") equal to
0.05% per annum on the average utilized portion of the Line. If applicable, the
Utilization Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediate preceding calendar quarter (or such lesser
period of time as has elapsed since the Closing Date), commencing April 1, 1998
with a final payment on the Maturity Date (or on the date of termination in full
of the Line if earlier). The Utilization Fee shall be distributed pro rata among
the Banks in accordance with each Bank's Line Percentage.
Section 21. CHARGES TO BORROWER'S ACCOUNT. All payments to be made by
the Borrower hereunder shall be made in Dollars in immediately available funds
at the Agent's Head Office, without set-off or counterclaim and without any
withholding or deduction whatsoever. The Borrower authorizes the Agent to charge
any of its accounts with the Agent for any amounts due and payable with respect
to the Line. The Borrower may also pay such amounts by wire transfer or other
means of providing good funds to the Agent on the due date thereof.
Section 22 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Banks that:
Section 22.1. CORPORATE AUTHORITY.
(a) Incorporation; Good Standing. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, (ii)
has all requisite corporate power to own its property and conduct its business
as now conducted and as presently contemplated, and (iii) is in good standing as
a foreign corporation and is
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duly authorized to do business in each jurisdiction in which its property or
business as presently conducted or contemplated makes such qualification
necessary, except where a failure to be so qualified would not have a material
adverse effect on the business, assets or financial condition of the Borrower
and its Subsidiaries as a whole.
(b) Authorization. The execution, delivery and performance of
the Loan Documents and the transactions contemplated hereby (i) are within the
corporate authority of the Borrower, (ii) have been duly authorized by all
necessary corporate proceedings on the part of the Borrower, (iii) do not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or any of its Subsidiaries is
subject or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or any of its Subsidiaries so as to materially adversely affect
the assets, business or any activity of the Borrower and its Subsidiaries as a
whole, and (iv) do not conflict with any provision of the corporate charter or
bylaws of the Borrower or any of its Subsidiaries or any agreement or other
instrument binding upon the Borrower or any of its Subsidiaries.
(c) Enforceability. The execution, delivery and performance of
the Loan Documents by the Borrower will result in valid and legally binding
obligations of the Borrower enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
Section 22.2 GOVERNMENTAL APPROVALS. The execution, delivery and
performance of the Loan Documents by the Borrower and the consummation by the
Borrower of the transactions contemplated hereby and thereby do not require any
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained and those required after the date hereof in
connection with the Borrower's and its Subsidiaries' performance of their
covenants contained in Section Section 23, 24 and 25 hereof.
Section 22.3 TITLE TO PROPERTIES; LEASES. The Borrower and its
Subsidiaries own all of the assets reflected in the consolidated balance sheet
as at the Balance Sheet Date or acquired since that date (except property and
assets operated under capital leases or sold or otherwise disposed of in the
ordinary course of business since that date), subject to no mortgages,
Capitalized Leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
Section 22.4 FINANCIAL STATEMENTS; SOLVENCY.
(a) There have been furnished to the Banks (i) consolidated
balance sheets of the Borrower and its Subsidiaries dated the Balance Sheet Date
and consolidated statements of operations for the fiscal periods then ended,
(ii) cash flow statements, consolidated balance sheets and consolidated
statements of income of City
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Management and its Subsidiaries dated June 30, 1997 for the fiscal year then
ended and (iii) with respect to City Management and its Subsidiaries, a "Report
on Audits of Financial Statements for the Consolidated Years Ended June 30,
1996" and a "Report on Audits of Financial Statements for the Consolidated Years
Ended June 30, 1996" (the materials described in clauses (ii) and (iii) referred
to herein as "City Management Financials"), in each case, with the exception of
the materials described in clause (ii), certified by the Accountants. All said
balance sheets, statements of operations and City Management Financials have
been prepared in accordance with GAAP (but, in the case of any of such financial
statements which are unaudited, only to the extent GAAP is applicable to interim
unaudited reports), fairly present the financial condition of the Borrower and
its Subsidiaries or City Management and its Subsidiaries, as applicable, on a
consolidated basis as at the close of business on the dates thereof and the
results of operations for the periods then ended, subject, in the case of
unaudited interim financial statements, to changes resulting from audit and
normal year-end adjustments and to the absence of complete footnotes. There are
no contingent liabilities of the Borrower and its Subsidiaries or City
Management and its Subsidiaries involving material amounts, known to the
officers of the Borrower which have not been disclosed in said balance sheets
and the related notes thereto or otherwise in writing to the Banks.
(b) The Borrower and its Subsidiaries on a consolidated basis
(both before and after giving effect to the transactions contemplated by this
Agreement, including the City Management Acquisition) are solvent (i.e., they
have assets having a fair value in excess of the amount required to pay their
probable liabilities on their existing debts as they become absolute and
matured) and have, and expect to have, the ability to pay their debts from time
to time incurred in connection therewith as such debts mature.
Section 22.5 NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date,
there have occurred no material adverse changes in the consolidated financial
condition, business or assets of the Borrower and its Subsidiaries, taken
together as shown on or reflected in the consolidated balance sheets of the
Borrower and its Subsidiaries as at the Balance Sheet Date, or the consolidated
statements of income for the period then ended other than changes in the
ordinary course of business which have not had any material adverse effect
either individually or in the aggregate on the financial condition, business or
assets of the Borrower and its Subsidiaries, taken together. Since the Balance
Sheet Date, there have not been any Distributions (including Distributions by
the Borrower) other than as permitted by Section 24.5 hereof. Since June 30,
1997 there have occurred no material adverse changes in the consolidated
financial condition, business or assets of City Management and its Subsidiaries
taken together as shown on or reflected in the consolidated balance sheets of
City Management and its Subsidiaries as at June 30, 1997, or the consolidated
statements of income for the period then ended other than changes in the
ordinary course of business which have not had any material adverse effect
either individually or in the aggregate on the financial condition, business or
assets of City Management and its Subsidiaries, taken together.
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Section 22.6 FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and
each of its Subsidiaries possess all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of their business substantially as now
conducted (other than those the absence of which would not have a material
adverse effect on the business, operations or financial condition of the
Borrower and its Subsidiaries as a whole) without known conflict with any rights
of others other than a conflict which would not have a material adverse effect
on the financial condition, business or assets of the Borrower and its
Subsidiaries as a whole.
Section 22.7 LITIGATION. Except as set forth on Schedule 6.7 to the
Credit Agreement, there are no actions, suits, proceedings or investigations of
any kind pending or, to the knowledge of the Borrower or any of its
Subsidiaries, threatened against the Borrower or any of its Subsidiaries before
any court, tribunal or administrative agency or board which, either in any case
or in the aggregate, could reasonably be expected to have a material adverse
effect on the financial condition, business, or assets of the Borrower and its
Subsidiaries, considered as a whole, or materially impair the right of the
Borrower and its Subsidiaries, considered as a whole, to carry on business
substantially as now conducted, or result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet or which question the validity of
any of the Loan Documents to which the Borrower or any of its Subsidiaries is a
party, or any action taken or to be taken pursuant hereto or thereto.
Section 22.8 NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower
nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Borrower's or such Subsidiary's officers has or could reasonably
be expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries, considered
as a whole. Neither the Borrower nor any of its Subsidiaries is a party to any
contract or agreement which in the judgment of the Borrower's or its
Subsidiary's officers has or could reasonably be expected to have any materially
adverse effect on the financial condition, business or assets of the Borrower
and its Subsidiaries, considered as a whole, except as otherwise reflected in
adequate reserves as required by GAAP.
Section 22.9 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is (a) violating any provision of its
charter documents or by-laws or (b) any agreement or instrument to which any of
them may be subject or by which any of them or any of their properties may be
bound or any decree, order, judgment, or any statute, license, rule or
regulation, in a manner which could (in the case of such agreements or such
instruments) reasonably be expected to result in the imposition of substantial
penalties or materially and adversely affect the financial condition, business
or assets of the Borrower and its Subsidiaries, considered as a whole.
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Section 22.10 TAX STATUS. The Borrower and its Subsidiaries have filed
all federal, state, provincial and territorial income and all other tax returns,
reports and declarations (or obtained extensions with respect thereto) required
by applicable law to be filed by them (unless and only to the extent that the
Borrower or such Subsidiary has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes as required by
GAAP); and have paid all taxes and other governmental assessments and charges
(other than taxes, assessments and other governmental charges imposed by
jurisdictions other than the United States, Canada or any political subdivision
thereof which in the aggregate are not material to the financial condition,
business or assets of the Borrower or such Subsidiary on an individual basis or
of the Borrower and its Subsidiaries on a consolidated basis) that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith; and, as required by
GAAP, have set aside on their books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. Except to the extent contested in the
manner permitted in the preceding sentence, there are no unpaid taxes in any
material amount claimed by the taxing authority of any jurisdiction to be due
and owing by the Borrower or any Subsidiary, nor do the officers of the Borrower
or any of its Subsidiaries know of any basis for any such claim.
Section 22.11 NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 22.12 HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower nor any of its Subsidiaries is a "holding Company", or a "subsidiary
Company" of a "holding Borrower", or an "affiliate" of a "holding Company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
any of them a "registered investment Company", or an "affiliated Company" or a
"principal underwriter" of a "registered investment Company", as such terms are
defined in the Investment Company Act of 1940, as amended.
Section 22.13 ABSENCE OF FINANCING STATEMENTS, ETC. Except as permitted
by Sections 24.1 and 24.2 of this Agreement, there is no Indebtedness senior to
the Obligations, and there is no effective financing statement, security
agreement, chattel mortgage, real estate mortgage or other document filed or
recorded with any filing records, registry, or other public office, which
purports to cover, affect or give notice of any present or possible future lien
on, or security interest in, any assets or property of the Borrower or any of
its Subsidiaries or right thereunder.
Section 22.14 EMPLOYEE BENEFIT PLANS.
Section 22.14.1 IN GENERAL. Each Employee Benefit
Plan has been maintained and operated in compliance in all
material respects with the provisions of ERISA, as applicable,
and, to the extent applicable, the Code, including but not
limited to the provisions thereunder respecting prohibited
transactions. Promptly upon the request of any Bank or the
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Agent, the Borrower will furnish to the Agent the most
recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted
under Section 103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
Section 22.14.2 TERMINABILITY OF WELFARE PLANS. Under
each Employee Benefit Plan which is an employee welfare
benefit plan within the meaning of Section 3(1) or Section
3(2)(B) of ERISA, no benefits are due unless the event giving
rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, Part 6 of ERISA) .
The Borrower or an ERISA Affiliate, as appropriate, may
terminate each such Plan at any time (or at any time
subsequent to the expiration of any applicable bargaining
agreement) in the discretion of the Borrower or such ERISA
Affiliate without liability to any Person.
Section 22.14.3 GUARANTEED PENSION PLANS. Each
contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions
of Section 302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with
respect to any Guaranteed Pension Plan. No liability to the
PBGC (other than required insurance premiums, all of which
have been paid) has been incurred by the Borrower or any ERISA
Affiliate with respect to any Guaranteed Pension Plan and
there has not been any ERISA Reportable Event, or any other
event or condition which presents a material risk of
termination of any Guaranteed Pension Plan by the PBGC. Based
on the latest valuation of each Guaranteed Pension Plan (which
in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of
Section 4001 of ERISA did not exceed the aggregate value of
the assets of all such Guaranteed Pension Plans, disregarding
for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit
liabilities.
Section 22.14.4 MULTIEMPLOYER PLANS. Neither the
Borrower nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result
of a sale of assets described in Section 4204 of ERISA.
Neither the Borrower nor any ERISA Affiliate has been notified
that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of Section 4241 or Section 4245
of ERISA or that any Multiemployer Plan intends to terminate
or has been terminated under Section 4041A of ERISA.
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Section 22.15 ENVIRONMENTAL COMPLIANCE. The Borrower and its
Subsidiaries have taken all necessary steps to investigate the past and present
condition and usage of the Real Property and the operations conducted by the
Borrower and its Subsidiaries and, based upon such diligent investigation, have
determined that, except as set forth on Schedule 6.15 to the Credit Agreement:
(a) Neither the Borrower, its Subsidiaries, nor any operator
of their properties, is in violation, or alleged violation, of any judgment,
decree, order, law, permit, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
United States or Canadian federal, state, provincial, territorial or local
statute, regulation, ordinance, order or decree relating to health, safety,
waste transportation or disposal, or the environment (the "Environmental Laws"),
which violation would have a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries on a consolidated
basis.
(b) Except as described on Schedule 6.15 to the Credit
Agreement, neither the Borrower nor any of its Subsidiaries has received notice
from any third party including, without limitation: any federal, state,
provincial, territorial or local governmental authority, (i) that any one of
them has been identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X; (ii) that
any hazardous waste, as defined by 42 U.S.C. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substance, oil
or hazardous materials or other chemicals or substances regulated by any
Environmental Laws, excluding household hazardous waste ("Hazardous
Substances"), which any one of them has generated, transported or disposed of,
has been found at any site at which a federal, state, provincial, territorial or
local agency or other third party has conducted or has ordered that the Borrower
or any of its Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, legal or
administrative proceeding arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
Release of Hazardous Substances.
(c) (i) No portion of the Real Property or other assets of the
Borrower and its Subsidiaries has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with applicable
Environmental Laws, except as would not reasonably be expected to have a
material adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries on a consolidated basis; and no underground tank
or other underground storage receptacle for Hazardous Substances is located on
such properties; (ii) in the course of any
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activities conducted by the Borrower, its Subsidiaries, or operators of the Real
Property or other assets of the Borrower and its Subsidiaries, no Hazardous
Substances have been generated or are being used on such properties except in
accordance with applicable Environmental Laws, except for occurrences that would
not have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries on a consolidated basis; (iii)
there have been no unpermitted Releases or threatened Releases of Hazardous
Substances on, upon, into or from the Real Property or other assets of the
Borrower or its Subsidiaries, which Releases would have a material adverse
effect on the value of such properties; (iv) to the best of the Borrower's and
its Subsidiaries' knowledge, there have been no Releases on, upon, from or into
any real property in the vicinity of the Real Property or other assets of the
Borrower or its Subsidiaries which, through soil or groundwater contamination,
may have come to be located on, and which would reasonably be expected to have a
material adverse effect on the value of, such properties; and (v) in addition,
any Hazardous Substances that have been generated on the Real Property or other
assets of the Borrower or its Subsidiaries have been transported offsite only by
carriers having an identification number issued by the EPA, treated or disposed
of only by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and facilities
have been and are, to the best of the Borrower's and its Subsidiaries'
knowledge, operating in compliance with such permits and applicable
Environmental Laws.
(d) None of the Real Property or other assets of the Borrower
or its Subsidiaries or any of the stock (or assets) being acquired with proceeds
of Loans is or shall be subject to any applicable environmental clean-up
responsibility law or environmental restrictive transfer law or regulation, by
virtue of the transactions set forth herein and contemplated hereby.
Section 22.16 TRUE COPIES OF CHARTER AND CITY MANAGEMENT ACQUISITION
DOCUMENTS. The Borrower has furnished the Agent copies, in each case true and
complete as of the Closing Date, of (a) all charter and other incorporation
documents (together with any amendments thereto) and by-laws (together with any
amendments thereto) or (b) a certificate certifying that such documents have not
changed since August 7, 1997. The Borrower has heretofore furnished to the Agent
true, complete and correct copies of the City Management Acquisition Documents
(including all schedules, exhibits and annexes thereto). The City Management
Acquisition Documents have not subsequently been amended, supplemented, or
modified and constitute the complete understanding among the parties thereto in
respect of the matters and transactions covered thereby.
Section 22.17 DISCLOSURE. No representation or warranty made by the
Borrower in this Agreement or in any agreement, instrument, document,
certificate, statement or letter furnished to the Banks or the Agent by or on
behalf of or at the request of the Borrower in connection with any of the
transactions contemplated by the Loan Documents contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances in
which they are made.
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Section 22.18 PERMITS AND GOVERNMENTAL AUTHORITY. All permits (other
than those the absence of which would not have a material adverse effect on the
business, operations or financial condition of the Borrower and its Subsidiaries
as a whole) required for the construction and operation of all landfills
currently owned or operated by the Borrower or any of its Subsidiaries have been
obtained and remain in full force and effect and are not subject to any appeals
or further proceedings or to any unsatisfied conditions that may allow material
modification or revocation. Neither the Borrower nor any of its Subsidiaries,
nor, to the knowledge of the Borrower and its Subsidiaries, the holder of such
permits is in violation of any such permits, except for any violation which
would not have a material adverse effect on the business, operations or
financial condition of the Borrower and its Subsidiaries as a whole.
Section 23 AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation is outstanding or the Banks have any obligation
to make Loans hereunder, it shall, and shall cause its Subsidiaries to, comply
with the following covenants:
Section 23.1 PUNCTUAL PAYMENT. The Borrower will duly and
punctually pay or cause to be paid the principal and interest on the
Loans, fees and other amounts provided for in this Agreement and the
other Loan Documents, all in accordance with the terms of this
Agreement and such other Loan Documents.
Section 23.2 MAINTENANCE OF U.S. OFFICE. The Borrower will
maintain its chief executive offices at Houston, Texas, or at such
other place in the United States of America as the Borrower shall
designate upon 30 days' prior written notice to the Agent.
Section 23.3 RECORDS AND ACCOUNTS. The Borrower will, and will
cause each of its Subsidiaries to, keep true and accurate records and
books of account in which full, true and correct entries will be made
in accordance with GAAP and with the requirements of all regulatory
authorities and maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation, depletion, obsolescence and
amortization of its properties, all other contingencies, and all other
proper reserves.
Section 23.4 FINANCIAL STATEMENTS, CERTIFICATES AND
INFORMATION. The Borrower will deliver to the Banks:
(a) as soon as practicable, but, in any event not
later than 92 days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such year, consolidated
statements of cash flows, and the related consolidated
statements of operations, each setting forth in comparative
form the figures for the previous fiscal year, all such
consolidated financial statements to be in reasonable detail,
prepared, in accordance with GAAP and, with respect to the
consolidated financial statements, certified by
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Coopers & Xxxxxxx LLP or by other independent auditors
selected by the Borrower and reasonably satisfactory to the
Banks (the "Accountants"). In addition, simultaneously
therewith, the Borrower shall provide the Banks with a written
statement from such Accountants to the effect that they have
read a copy of this Agreement, and that, in making the
examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or,
if such Accountants shall have obtained knowledge of any then
existing Default or Event of Default they shall disclose in
such statement any such Default or Event of Default;
(b) as soon as practicable, but in any event not
later than 47 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, copies of
the consolidated balance sheet and statement of operations of
the Borrower and its Subsidiaries as at the end of such
quarter, subject to year-end adjustments, and the related
consolidated statement of cash flows, all in reasonable detail
and prepared in accordance with GAAP (to the extent GAAP is
applicable to interim unaudited financial statements) with a
certification by the principal financial or accounting officer
of the Borrower (the "CFO or the CAO") that the consolidated
financial statements are prepared in accordance with GAAP (to
the extent GAAP is applicable to interim unaudited financial
statements) and fairly present the consolidated financial
condition of the Borrower and its Subsidiaries on a
consolidated basis as at the close of business on the date
thereof and the results of operations for the period then
ended, it being understood that no such statement need be
accompanied by complete footnotes;
(c) simultaneously with the delivery of the financial
statements referred to in (a) and (b) above, a certificate in
the form of Exhibit C hereto (the "Compliance Certificate")
signed by the CFO or the CAO or the Borrower's corporate
treasurer, stating that the Borrower and its Subsidiaries are
in compliance with the covenants contained in Section 23, 24
and 25 hereof as of the end of the applicable period and
setting forth in reasonable detail computations evidencing
such compliance with respect to the covenants contained in
Sections 24.1(f), 24.3, 24.4, 24.5, and 25 hereof and
that no Default or Event of Default exists, provided that if
the Borrower shall at the time of issuance of such Compliance
Certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrower shall include in
such certificate or otherwise deliver forthwith to the Banks a
certificate specifying the nature and period of existence
thereof and what action the Borrower proposes to take with
respect thereto;
(d) contemporaneously with, or promptly following,
the filing or mailing thereof, copies of all material of a
financial nature filed with the Securities and Exchange
Commission or sent to the Borrower's and its Subsidiaries'
stockholders generally; and
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(e) from time to time such other financial data and
other information as the Banks may reasonably request.
The Borrower hereby authorizes each Bank to disclose any
information obtained pursuant to this Agreement to all appropriate
governmental regulatory authorities where required by law; provided,
however, this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Banks of any such information
which the Borrower has or may have under the federal Right to Financial
Privacy Act of 1978, as in effect from time to time, except as to
matters specifically permitted therein.
Section 23.5 CORPORATE EXISTENCE AND CONDUCT OF BUSINESS. The
Borrower will, and will cause each Subsidiary, to do or cause to be
done all things necessary to preserve and keep in full force and effect
its corporate existence, corporate rights and franchises; and effect
and maintain its foreign qualifications (except where the failure of
the Borrower or any Subsidiary to remain so qualified would not
materially adversely impair the financial condition, business or assets
of the Borrower and its Subsidiaries on a consolidated basis),
licensing, domestication or authorization except as terminated by its
Board of Directors in the exercise of its reasonable judgment; provided
that such termination would not have a material adverse effect on the
financial condition, business or assets of the Borrower and its
Subsidiaries on a consolidated basis. The Borrower will not, and will
cause its Subsidiaries not to, become obligated under any contract or
binding arrangement which, at the time it was entered into, would
materially adversely impair the financial condition, business or assets
of the Borrower and its Subsidiaries, on a consolidated basis. The
Borrower will, and will cause each Subsidiary to, continue to engage
primarily in the businesses now conducted by it and in related
businesses.
Section 23.6 MAINTENANCE OF PROPERTIES. The Borrower will, and
will cause its Subsidiaries to, cause all material properties used or
useful in the conduct of their businesses to be maintained and kept in
good condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment and cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower and its
Subsidiaries may be necessary so that the businesses carried on in
connection therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this section shall
prevent the Borrower or any of its Subsidiaries from discontinuing the
operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Borrower or such Subsidiary,
desirable in the conduct of its or their business and which does not in
the aggregate materially adversely affect the financial condition,
business or assets of the Borrower and its Subsidiaries on a
consolidated basis.
Section 23.7 INSURANCE. The Borrower will, and will cause its
Subsidiaries to, maintain with financially sound and reputable
insurance companies, funds or underwriters, insurance of the kinds,
covering the risks (other than risks
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arising out of or in any way connected with personal liability of any
officers and directors thereof) and in the relative proportionate
amounts usually carried by reasonable and prudent companies conducting
businesses similar to that of the Borrower and its Subsidiaries, in
amounts substantially similar to the existing coverage policies
maintained by the Borrower and its Subsidiaries, copies of which have
been provided to the Agent. In addition, the Borrower will furnish from
time to time, upon any Bank's request, a summary of the insurance
coverage of the Borrower and its Subsidiaries, which summary shall be
in form and substance satisfactory to the Banks and, if requested by
any of the Banks, will furnish to the Agent and such Bank copies of the
applicable policies.
Section 23.8 TAXES. The Borrower will, and will cause its
Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges (other than taxes,
assessments and other governmental charges imposed by jurisdictions
other than the United States, Canada or any political subdivision
thereof, which in the aggregate are not material to the business,
financial conditions, or assets of the Borrower and its Subsidiaries on
a consolidated basis) imposed upon it and its real properties, sales
and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies,
which if unpaid might by law become a lien or charge upon any of its
property; provided, however, that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if
the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto as required by GAAP; and
provided, further, that the Borrower or such Subsidiary will pay all
such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien which may have
attached as security therefor.
Section 23.9 INSPECTION OF PROPERTIES, BOOKS AND CONTRACTS.
The Borrower will, and will cause its Subsidiaries to, permit the Agent
or any Bank or any of their designated representatives, upon reasonable
notice, to visit and inspect any of the properties of the Borrower and
its Subsidiaries, to examine the books of account of the Borrower and
its Subsidiaries, or contracts (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the
Borrower and its Subsidiaries with, and to be advised as to the same
by, their officers, all at such times and intervals as may be
reasonably requested.
Section 23.10 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND
PERMITS; MAINTENANCE OF MATERIAL LICENSES AND PERMITS. The Borrower
will, and will cause each Subsidiary to, (i) comply with the provisions
of its charter documents and by-laws; (ii) comply in all material
respects with all agreements and instruments by which it or any of its
properties may be bound; (iii) comply with all applicable laws and
regulations (including Environmental Laws), decrees, orders, judgments,
licenses and permits, including, without limitation, all environmental
permits ("Applicable Requirements"), except where
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noncompliance with such Applicable Requirements would not reasonably be
expected to have a material adverse effect in the aggregate on the
consolidated financial condition, properties or businesses of the
Borrower and its Subsidiaries; and (iv) maintain all material operating
permits for all landfills now owned or hereafter acquired; and (v)
dispose of hazardous waste only at licensed disposal facilities
operating, to the best of the Borrower's or such Subsidiary's knowledge
after reasonable inquiry, in compliance with Environmental Laws. If at
any time any authorization, consent, approval, permit or license from
any officer, agency or instrumentality of any government shall become
necessary or required in order that the Borrower or any Subsidiary may
fulfill any of its obligations hereunder or under any other Loan
Document, the Borrower will immediately take or cause to be taken all
reasonable steps within the power of the Borrower or such Subsidiary to
obtain such authorization, consent, approval, permit or license and
furnish the Banks with evidence thereof.
Section 23.11 ENVIRONMENTAL INDEMNIFICATION. The Borrower
covenants and agrees that it will indemnify and hold the Banks and the
Agent and their respective affiliates, and each of the representatives,
agents and officers of each of the foregoing, harmless from and against
any and all claims, expense, damage, loss or liability incurred by the
Banks or the Agent (including all costs of legal representation
incurred by the Banks or the Agent) relating to (a) any Release or
threatened Release of Hazardous Substances on the Real Property; (b)
any violation of any Environmental Laws or Applicable Requirements with
respect to conditions at the Real Property or other assets of the
Borrower or its Subsidiaries, or the operations conducted thereon; or
(c) the investigation or remediation of offsite locations at which the
Borrower, any of its Subsidiaries, or their predecessors are alleged to
have directly or indirectly Disposed of Hazardous Substances. It is
expressly acknowledged by the Borrower that this covenant of
indemnification shall survive the payment of the Loans and satisfaction
of all other Obligations hereunder and shall inure to the benefit of
the Banks, the Agent and their affiliates, successors and assigns.
Section 23.12 FURTHER ASSURANCES. The Borrower will cooperate
with the Agent and execute such further instruments and documents as
the Agent shall reasonably request to carry out to the Banks'
satisfaction the transactions contemplated by this Agreement.
Section 23.13 NOTICE OF POTENTIAL CLAIMS OR LITIGATION. The
Borrower shall deliver to the Banks, within 30 days of receipt thereof,
written notice of the initiation of any action, claim, complaint, or
any other notice of dispute or potential litigation against the
Borrower or any of its Subsidiaries wherein the potential liability is
in excess of $10,000,000 together with a copy of each such notice
received by the Borrower or any of its Subsidiaries.
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Section 23.14 NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE
AND ENVIRONMENTAL CLAIMS.
(a) The Borrower will provide the Banks with written notice as
to any material cancellation or material adverse change in any
insurance of the Borrower or any of its Subsidiaries within ten (10)
Business Days after the Borrower's or any of its Subsidiary's receipt
of any notice (whether formal or informal) of such material
cancellation or material change by any of its insurers.
(b) The Borrower will promptly notify the Banks in writing of
any of the following events:
(i) upon the Borrower's or any Subsidiary's
obtaining knowledge of any violation of any
Environmental Law regarding the Real Property or the
Borrower's or any Subsidiary's operations which
violation could have a material adverse effect on the
business, financial condition, or assets of the
Borrower and its Subsidiaries on a consolidated
basis;
(ii) upon the Borrower's or any Subsidiary's
obtaining knowledge of any potential or known
Release, or threat of Release, of any Hazardous
Substance at, from, or into the Real Property which
could materially affect the business, financial
condition, or assets of the Borrower and its
Subsidiaries on a consolidated basis;
(iii) upon the Borrower's or any
Subsidiary's receipt of any notice of any material
violation of any Environmental Law or of any Release
or threatened Release of Hazardous Substances,
including a notice or claim of liability or potential
responsibility from any third party (including any
federal, state, provincial, territorial or local
governmental officials) and including notice of any
formal inquiry, proceeding, demand, investigation or
other action with regard to (A) the Borrower's, any
Subsidiary's or any Person's operation of the Real
Property, (B) contamination on, from, or into the
Real Property, or (C) investigation or remediation of
offsite locations at which the Borrower, any
Subsidiary, or its predecessors are alleged to have
directly or indirectly Disposed of Hazardous
Substances, and with respect to which the liability
associated therewith could be reasonably expected to
exceed $10,000,000; or
(iv) upon the Borrower's or any Subsidiary's
obtaining knowledge that any expense or loss which
individually or in the aggregate exceeds $10,000,000
has been incurred by such governmental authority in
connection with the assessment, containment, removal
or remediation of any Hazardous Substances with
respect to which the Borrower or any Subsidiary may
be liable or for which a lien may be imposed on the
Real Property.
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Section 23.15 NOTICE OF DEFAULT. The Borrower will promptly
notify the Banks in writing of the occurrence of any Default or Event
of Default. If any Person shall give any notice or take any other
action in respect of a claimed default (whether or not constituting an
Event of Default) under this Agreement or any other note, evidence of
indebtedness, indenture or other obligation evidencing indebtedness in
excess of $10,000,000 as to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal or surety, the
Borrower shall forthwith upon obtaining actual knowledge thereof give
written notice thereof to the Banks, describing the notice of action
and the nature of the claimed default.
Section 23.16 USE OF PROCEEDS. The proceeds of the Loans shall
be used for general corporate purposes and to refinance certain
existing debt of the Borrower and City Management in connection with
the Borrower's acquisition of City Management. No proceeds of the Loans
shall be used in any way that will violate Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System.
Section 23.17 CERTAIN TRANSACTIONS. Except as disclosed in
filings made by the Borrower under the Securities Exchange Act of 1934
prior to the Closing Date, and except for arm's length transactions
pursuant to which the Borrower or any Subsidiary makes payments in the
ordinary course of business upon terms no less favorable than the
Borrower or such Subsidiary could obtain from third parties, none of
the officers, directors, or employees of the Borrower or any Subsidiary
are presently or shall be a party to any transaction with the Borrower
or any Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the
knowledge of the Borrower or any Subsidiary, any corporation,
partnership, trust or other entity in which any officer, director, or
any such employee has a substantial interest or is an officer,
director, trustee or partner.
Section 24 CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
agrees that, so long as any Obligation is outstanding or the Banks have any
obligation to make Loans hereunder, it shall, and shall cause its Subsidiaries
to, comply with the following covenants:
Section 24.1 RESTRICTIONS ON INDEBTEDNESS. Neither the
Borrower nor any of its Subsidiaries shall become or be a guarantor or
surety of, or otherwise create, incur, assume, or be or remain liable,
contingently or otherwise, with respect to any Indebtedness, or become
or be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance
any funds, assets, goods or services or otherwise) with respect to any
Indebtedness of any other Person, or incur any Indebtedness other than:
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(a) Indebtedness of the Borrower and Guarantors under
the Credit Agreement;
(b) Indebtedness arising under this Agreement or the
other Loan Documents;
(c) Existing Indebtedness of the Borrower and its
Subsidiaries listed on Schedule 8.1(b) to the Credit Agreement
on the terms and conditions in effect as of the date hereof,
including extensions, renewals and refinancing of such
Indebtedness in amounts no greater than and on terms no more
restrictive than existed on August 7, 1997;
(d) (i) Indebtedness incurred by the Borrower or any
Subsidiary with respect to any suretyship or performance bond
incurred in the ordinary course of its business (other than
landfill closure bonds); and
(ii) Guarantees of the Subsidiaries' obligations
to governmental authorities in lieu of the posting of any
landfill closure bonds;
(e) Unsecured Indebtedness of the Borrower, including
commercial paper, which is pari passu or subordinated to the
Obligations; provided that there does not exist a Default or
Event of Default at the time of the incurrence of such
Indebtedness and no Default or Event of Default would be
created by incurrence of such Indebtedness;
(f) (i) Indebtedness of the Borrower's Subsidiaries,
(ii) secured Indebtedness of the Borrower, (iii) Indebtedness
with respect to landfill closure bonds of the Borrower's
Subsidiaries, and (iv) Indebtedness with respect to Permitted
Receivables Transactions; provided that the aggregate amount
of all such Indebtedness in this 24.1(f) shall not exceed 7.5%
of Consolidated Tangible Assets at any time;
(g) Indebtedness of Sanifill with respect to the
Sanifill Convertible Subordinated Debt;
(h) Other Indebtedness of the Canadian Subsidiaries
of the Borrower in an aggregate amount outstanding not in
excess of $50,000,000; and
(i) Indebtedness of United with respect to the United
Indenture.
Section 24.2 RESTRICTIONS ON LIENS. The Borrower will not, and
will cause its Subsidiaries not to, create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon
any property or assets of any character, whether now owned or hereafter
acquired, or upon the income or profits therefrom; or
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transfer any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to
payment of its general creditors; or acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or
other title retention or purchase money security agreement, device or
arrangement; or suffer to exist for a period of more than 30 days after
the same shall have been incurred any Indebtedness or claim or demand
against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its
general creditors; or sell, assign, pledge or otherwise transfer any
accounts, contract rights, general intangibles or chattel paper, with
or without recourse, except as follows (the "Permitted Liens"):
(a) Liens listed on Schedule 8.2(a) of the Credit
Agreement;
(b) Liens securing Indebtedness permitted by Section
24.1(d)(i) hereof; provided that the assets subject to such
liens and security interests shall be limited to those
contracts to which such guaranty, suretyship or
indemnification obligations relate and the rights to payment
thereunder;
(c) Liens securing Indebtedness permitted under
Section 24.1(f) (provided that Liens created pursuant to a
Permitted Receivables Transaction are only on the receivables
so transferred and secure only the obligations with respect
thereto) and Section 24.1(h);
(d) Liens to secure taxes, assessments and other
government charges in respect of obligations not overdue;
(e) Deposits or pledges made in connection with, or
to secure payment of, workmen's compensation, unemployment
insurance, old age pensions or other social security
obligations;
(f) Liens in respect of judgments or awards which
have been in force for less than the applicable period for
taking an appeal so long as execution is not levied thereunder
or in respect of which the Borrower (or any Subsidiary) shall
at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of
execution shall have been obtained pending such appeal or
review and in respect of which the Borrower maintains adequate
reserves;
(g) Liens of carriers, warehousemen, mechanics and
materialmen, and other like liens, in existence less than 120
days from the date of creation thereof in respect of
obligations not overdue, provided that such liens may continue
to exist for a period of more than 120 days if the validity or
amount thereof shall currently be contested by the Borrower
(or any Subsidiary) in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books adequate
reserves with respect thereto as required by GAAP and provided
further that the
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Borrower (or any Subsidiary) will pay any such claim forthwith
upon commencement of proceedings to foreclose any such lien;
and
(h) Encumbrances consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the
Borrower or any Subsidiary is a party, and other minor liens
or encumbrances none of which in the opinion of the Borrower
interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrower or any of
its Subsidiaries, which defects do not individually or in the
aggregate have a material adverse effect on the business of
the Borrower or any Subsidiary individually or of the Borrower
and its Subsidiaries on a consolidated basis.
The Borrower covenants and agrees that if it or any of its
Subsidiaries shall create or assume any lien upon any of their
respective properties or assets, whether now owned or hereafter
acquired, other than Permitted Liens (unless prior written consent
shall have been obtained from the Banks), the Borrower will make or
cause to be made effective provision whereby the Obligations will be
secured by such lien equally and ratably with any and all other
Indebtedness thereby secured so long as such other Indebtedness shall
be so secured; provided, that the covenants of the Borrower contained
in this sentence shall only be in effect for so long as the Borrower
shall be similarly obligated under any other Indebtedness; provided,
further, that an Event of Default shall occur for so long as such other
Indebtedness becomes secured notwithstanding any actions taken by the
Borrower to ratably secure the Obligations hereunder.
Section 24.3 RESTRICTIONS ON INVESTMENTS. Except to the extent
provided in Section 24.4, neither The Borrower nor any Subsidiary may
make or permit to exist or to remain outstanding any Investment, unless
both before and after giving effect thereto (i) the Borrower and its
Subsidiaries are in compliance with the covenants set forth in Sections
23, 24 and 25 hereof; (ii) there does not exist a Default or Event of
Default and no Default or Event of Default would be created by the
making of such Investment; and (iii) the aggregate amount of all
Investments (excluding Investments in (A) direct obligations of the
United States of America or any agency thereof having maturities of
less than one (1) year, (B) certificates of deposit having maturities
of less than one (1) year, issued by commercial banks in the United
States or Canada having capital and surplus of not less than
$100,000,000, and (C) wholly owned Subsidiaries) does not exceed 15% of
Consolidated Tangible Assets; provided, that the ability of the
Borrower and its Subsidiaries to incur any Indebtedness in connection
with any Investment permitted by this Section 24.3 shall be governed by
Section 24.1.
Section 24.4 MERGERS, CONSOLIDATIONS, SALES.
(a) Neither the Borrower nor any Subsidiary shall be
a party to any merger, consolidation or exchange of stock
unless the Borrower shall be the surviving entity with respect
to any such transaction to which the Borrower is a party or a
Subsidiary shall be the surviving entity (and
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continue to be a Subsidiary) with respect to any such
transactions to which one or more Subsidiaries is a party (and
the conditions set forth below are satisfied), or purchase or
otherwise acquire all or substantially all of the assets or
stock of any class of, or any partnership, membership or joint
venture or other interest in, any other Person except as
otherwise provided in Section 24.3 or this Section 24.4.
Notwithstanding the foregoing, The Borrower and its
Subsidiaries may purchase or otherwise acquire all or
substantially all of the assets or stock of any class of, or
joint venture or other interest in, any Person if the
following conditions have been met: (i) the proposed
transaction will not otherwise create a Default or an Event of
Default hereunder; (ii) the business to be acquired
predominantly involves the collection, transfer, hauling,
disposal or recycling of solid waste (excluding hazardous
waste as that term is defined in RCRA) or thermal soil
remediation; (iii) the business to be acquired operates
predominantly (A) in North America or (B) outside North
America, provided, that the aggregate amount of such
acquisitions under this clause (B) does not exceed five
percent (5%) of Consolidated Tangible Assets; and (iv) the
board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be
acquired has approved such acquisition. Notwithstanding
anything herein to the contrary, the ability of the Borrower
and its Subsidiaries to incur any Indebtedness in connection
with any transaction permitted pursuant to this Section 24.4
shall be governed by Section 24.1.
(b) Neither the Borrower nor any Subsidiary shall
sell, transfer, convey or lease any assets or group of assets
including the sale or transfer of any property owned by the
Borrower or any Subsidiary in order then or thereafter to
lease such property or lease other property which the Borrower
or such Subsidiary intends to use for substantially the same
purpose as the property being sold or transferred (except (1)
transfers of personal property among Subsidiaries of the
Borrower which are wholly owned by the Borrower and (2) so
long as no Default or Event of Default has occurred and is
continuing, or would result therefrom, sales of assets in the
ordinary course of business between the date hereof and the
Maturity Date with an aggregate value not greater than ten
percent (10%) of Consolidated Total Assets, as set forth in
the most recent financial statements delivered to the Banks
pursuant to Section 23.4 hereof) or sell or assign, with or
without recourse, any receivables (except accounts receivable
more than sixty (60) days past due sold or assigned in the
ordinary course of collecting past due accounts, or pursuant
to a Permitted Receivables Transaction).
Section 24.5 RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. Neither
the Borrower nor any of its Subsidiaries will (a) declare or pay any
Distributions, or (b) redeem, convert, retire or otherwise acquire
shares of any class of its capital stock (other than in connection with
a merger permitted by Section 24.4 hereof or conversion into another
form of equity of any preferred shares of the Borrower existing as of
the Closing Date pursuant to the terms thereof); provided that the
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Borrower and its Subsidiaries may pay cash dividends and redeem stock
in an aggregate amount not to exceed (x) $25,000,000 plus (y) on a
cumulative basis, 50% of positive Consolidated Net Income after
December 31, 1995. Notwithstanding the above, any Subsidiary may make
Distributions to the Borrower and the Borrower agrees that neither the
Borrower nor any Material Subsidiary will enter into any agreement
restricting Distributions from such Material Subsidiary to the
Borrower.
Section 24.6 EMPLOYEE BENEFIT PLANS. None of the Borrower, any
of its Subsidiaries, or any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the
meaning of 9406 of ERISA or Section 4975 of the Code which
could result in a material liability for the Borrower on a
consolidated basis; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, whether or not such deficiency is or may
be waived; or
(c) fail to contribute to any Guaranteed Pension Plan
to an extent which, or terminate any Guaranteed Pension Plan
in a manner which, could result in the imposition of a lien or
encumbrance on the assets of the Borrower pursuant to Section
302(f) or Section 4068 of ERISA; or
(d) permit or take any action which would result in
the aggregate benefit liabilities (within the meaning of
Section 4001 of ERISA) of all Guaranteed Pension Plans
exceeding the value of the aggregate assets of such Plans,
disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit
liabilities; or
The Borrower and its Subsidiaries will (i) promptly upon the
request of any Bank or the Agent, furnish to the Banks a copy of the
most recent actuarial statement required to be submitted under Section
103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (ii)
promptly upon receipt or dispatch, furnish to the Banks any notice,
report or demand sent or received in respect of a Guaranteed Pension
Plan under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and
4068 of ERISA, or in respect of a Multiemployer Plan, under Sections
4041A, 4202, 4219, 4242 or 4245 of ERISA.
Section 25 FINANCIAL COVENANTS OF THE BORROWER. The Borrower agrees
that, so long as any Obligation is outstanding or the Banks have any obligation
to make Loans hereunder, it shall, and shall cause its Subsidiaries to, comply
with the following covenants:
Section 25.1 INTEREST COVERAGE RATIO. As of the end of any
fiscal quarter of the Borrower, the ratio of (a) EBIT for the period of
four consecutive fiscal
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quarters ending on that date to (b) Consolidated Total Interest Expense
for such period shall not be less than 3.00:1.
Section 25.2 DEBT TO TOTAL CAPITALIZATION.
(a) The ratio of (i) Funded Debt to (ii) Consolidated
Total Capitalization shall not exceed 0.58:1 at any time; and
(b) The ratio of (i) Funded Debt to (ii) Consolidated
Total Capitalization shall not exceed 0.55:1 at the end of any
two consecutive fiscal quarters of the Borrower.
Section 26 CONDITIONS PRECEDENT.
Section 26.1 CONDITIONS TO EFFECTIVENESS. The
effectiveness of this Agreement and the obligations of the Banks to
make any Loans and otherwise be bound by the terms of this Agreement
shall be subject to the satisfaction of each of the following
conditions precedent:
Section 26.1.1 CORPORATE ACTION. All corporate action
necessary for the valid execution, delivery and performance by
the Borrower of the Loan Documents shall have been duly and
effectively taken, and evidence thereof certified by
authorized officers of the Borrower and satisfactory to the
Agent shall have been provided to the Agent.
Section 26.1.2 LOAN DOCUMENTS, ETC. Each of the Loan
Documents and other documents listed on the closing agenda
shall have been duly and properly authorized, executed and
delivered by the respective parties thereto and shall be in
full force and effect in a form satisfactory to the Agent.
Section 26.1.3 CERTIFIED COPIES OF CHARTER DOCUMENTS.
The Agent shall have received from the Borrower (a) a copy,
certified by a duly authorized officer of the Borrower to be
true and complete on the Closing Date, of its charter or other
incorporation documents as in effect on such date of
certification and its by-laws as in effect on such date, or
(b) a certificate of a duly authorized officer of the Borrower
certifying that such documents have not changed since August
7, 1997.
Section 26.1.4 INCUMBENCY CERTIFICATE. The Agent
shall have received an incumbency certificate, dated as of the
Closing Date, signed by duly authorized officers giving the
name and bearing a specimen signature of each individual who
shall be authorized: (a) to sign the Loan Documents on behalf
of the Borrower and Sanifill; and (b) to give notices, make
Loan Requests and to take other action on the Borrower's
behalf under the Loan Documents.
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Section 26.1.5 CERTIFICATES OF INSURANCE. The Agent
shall have received (i) a certificate of insurance from an
independent insurance broker dated as of the Closing Date, or
within 15 days prior thereto, identifying insurers, types of
insurance, insurance limits, and policy terms, and otherwise
describing the insurance obtained in accordance with the
provisions of the Loan Documents and (ii) copies of all
policies evidencing such insurance (or certificates therefor
signed by the insurer or an agent authorized to bind the
insurer).
Section 26.1.6 OPINIONS OF COUNSEL. The Agent shall
have received favorable legal opinions from counsel to the
Borrower addressed to the Agent, dated the Closing Date, in
form and substance satisfactory to the Agent.
Section 26.1.7 SATISFACTORY FINANCIAL CONDITION. No
material adverse change, in the judgment of the Agent, shall
have occurred in the financial condition, results of
operations, business, properties or prospects of the Borrower
and its Subsidiaries, taken as a whole, since the most recent
financial statements and projections provided to the Agent.
Section 26.1.8 CITY MANAGEMENT ACQUISITION. The City
Management Acquisition shall have been successfully completed
on terms no less favorable to the Borrower than the terms set
forth in the City Management Acquisition Agreement, and
evidence thereof satisfactory to the Agent, including, without
limitation, a legal opinion as to the completion of the City
Management Acquisition, shall have been furnished to the
Agent.
Section 26.1.9 LIEN SEARCH RESULTS. The
Administrative Agent shall have received the results of UCC
lien searches with respect to City Management and its
Subsidiaries indicating no liens or encumbrances other than
Permitted Liens.
Section 26.2 PAYMENT OF CLOSING FEES. The Borrower shall have paid all
closing fees as required under the Commitment Letter, dated as of December 12,
1997 from Xxxxxx to the Borrower.
Section 27 CONDITIONS TO ALL LOANS. The obligations of the Banks to
make any Loan at the time of and subsequent to the Closing Date is subject to
the following conditions precedent:
Section 27.1 REPRESENTATIONS TRUE. Each of the representations
and warranties of the Borrower contained in this Agreement or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Loan
with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted
by this Agreement and changes occurring in the
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ordinary course of business which singly or in the aggregate are not
materially adverse to the business, assets or financial condition of
the Borrower and its Subsidiaries as a whole, and to the extent that
such representations and warranties relate expressly and solely to an
earlier date).
Section 27.2 PERFORMANCE; NO EVENT OF DEFAULT. The Borrower
shall have performed and complied with all terms and conditions herein
required to be performed or complied with by them prior to or at the
time of the making of any Loan, and at the time of the making of any
Loan, there shall exist no Default or Event of Default or condition
which would result in a Default or an Event of Default upon
consummation of such Loan. Each request for a Loan shall constitute
certification by the Borrower that the conditions specified in Sections
27.1 and 27.2 will be duly satisfied on the date of such Loan.
Section 27.3 NO LEGAL IMPEDIMENT. No change shall have
occurred in any law or regulations thereunder or interpretations
thereof which in the reasonable opinion of the Banks would make it
illegal for the Banks to make Loans hereunder.
Section 27.4 GOVERNMENTAL REGULATION. The Banks shall have
received from the Borrower and its Subsidiaries such statements in
substance and form reasonably satisfactory to the Banks as they shall
require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System or the Office of the Superintendent of Financial
Institutions.
Section 27.5 PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Agreement and all
documents incident thereto shall have been delivered to the Banks as of
the date of the making of any extension of credit in substance and in
form satisfactory to the Banks, including without limitation a Loan
Request in the form attached hereto as Exhibit A, and the Banks shall
have received all information and such counterpart originals or
certified or other copies of such documents as the Banks may reasonably
request.
Section 28. EVENTS OF DEFAULT; ACCELERATION; TERMINATION REMEDIES.
Section 28.1. EVENTS OF DEFAULT.
If any of the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
and/or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
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(b) the Borrower shall fail to pay any interest or fees or
other amounts owing hereunder (other than those specified in subsection (a)
above) within (5) Business Days after the same shall become due and payable
whether at the Maturity Date or any accelerated date of maturity or at any other
date fixed for payment;
(c) the Borrower shall fail to comply with the provisions of
Sections 23, 24 or 25;
(d) the Borrower shall fail to perform any term, covenant or
agreement contained herein or any of the other Loan Documents (other than those
specified in subsections (a), (b) and (c) above) and such failure shall not be
remedied within 30 days after written notice of such failure shall have been
given to the Borrower by the Agent or any of the Banks;
(e) if any representation or warranty contained in this
Agreement or in any document or instrument delivered pursuant to or in
connection with this Agreement shall prove to have been false in any material
respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to
pay when due, or within any applicable period of grace, any Indebtedness in an
aggregate amount greater than $25,000,000, or fail to observe or perform any
material term, covenant or agreement contained in any one or more agreements by
which it is bound, evidencing or securing any Indebtedness in an aggregate
amount greater than $25,000,000 for such period of time as would, or would have
permitted (assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof or terminate its commitment with respect thereto;
(g) there shall be an "Event of Default" under the Credit
Agreement or the Credit Agreement shall be cancelled or terminated;
(h) if the Borrower or any Material Subsidiary makes an
assignment for the benefit of creditors, or admits in writing its inability to
pay or generally fails to pay its debts as they mature or become due, or
petitions or applies for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any Material Subsidiary or of any
substantial part of the assets of the Borrower or any Material Subsidiary or
commences any case or other proceeding relating to the Borrower or any Material
Subsidiary under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or takes any action to authorize or in
furtherance of any of the foregoing, or if any such petition or application is
filed or any such case or other proceeding is commenced against the Borrower or
any Material Subsidiary or the Borrower or any Material Subsidiary indicates its
approval thereof, consent thereto or acquiescence therein;
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(i) if a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower or any
Material Subsidiary bankrupt or insolvent, or approving a petition in any such
case or other proceeding, or a decree or order for relief is entered in respect
of the Borrower or any Material Subsidiary in an involuntary case under federal
bankruptcy laws of any jurisdiction as now or hereafter constituted, and such
decree or order remains in effect for more than 30 days, whether or not
consecutive;
(j) if there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days, whether or not consecutive, any final
judgment against the Borrower or any Subsidiary which, with other outstanding
final judgments against the Borrower and its Subsidiaries exceeds in the
aggregate $10,000,000 after taking into account any undisputed insurance
coverage;
(k) if, with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Banks shall have determined in
their reasonable discretion that such event reasonably could be expected to
result in liability of the Borrower or any Subsidiary to the PBGC or the Plan in
an aggregate amount exceeding $10,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the partial or complete
termination of such Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Plan; or a trustee
shall have been appointed by the appropriate United States District Court to
administer such Plan; or the PBGC shall have instituted proceedings to terminate
such Plan;
(l) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its stockholders, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof; or
(m) if any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of 25% or more of the
outstanding shares of common voting stock of the Borrower; or, during any period
of twelve consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period shall cease to constitute a majority of
the board of directors of the Borrower;
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THEN, or at any time thereafter:
so long as the same may be continuing, the Agent may, and upon the request of
the Majority Banks shall, by notice in writing to the Borrower, declare all
amounts owing with respect to this Agreement, the Notes and the other Loan
Documents to be, and they shall thereupon forthwith become, immediately due and
payable without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration to the extent permitted by law or other notice of any
kind, all of which are hereby expressly waived by the Borrower; provided that in
the event of any Event of Default specified in Sections 28.1(h) or
28.1(i) hereof, all such amounts shall become immediately due And payable
automatically and without any requirement of notice from the Agent or any Bank.
Section 28.2. TERMINATION OF COMMITMENTS. If any Event of Default
pursuant to Section 28.1(h) or 28.1(i) hereof shall occur, any unused
portion of the Line hereunder shall forthwith terminate and the Banks and the
Agent shall be relieved of all obligations to make Loans hereunder; or if any
other Event of Default shall occur, the Majority Banks may by notice to the
Borrower terminate the unused portion of the Line hereunder, and, upon such
notice being given, such unused portion of the Line hereunder shall terminate
immediately and the Banks and the Agent shall be relieved of all further
obligations to make Loans hereunder. No termination of any portion of the Line
hereunder shall relieve the Borrower of any of its existing obligations
hereunder to the Banks or the Agent hereunder or elsewhere.
Section 28.3. REMEDIES. In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans and other Obligations pursuant
to 28.1, each Bank, upon notice to the other Banks, if owed any amount with
respect to the Loans, may proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations to such
Bank are evidenced, including, without limitation, as permitted by applicable
law the obtaining of the ex parte appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any legal or equitable right of such Bank, any recovery being
subject to the terms of Section 42 hereof. No remedy herein conferred upon any
Bank or the Agent or the holder of any Note is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
Section 29. SETOFF. Regardless of the adequacy of any collateral,
during the continuance of an Event of Default, any deposits or other sums
credited by or due from any Bank to the Borrower and any securities or other
property of the Borrower in the possession of such Bank may be applied to or set
off against the payment of the Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to the Banks or the Agent. Any amounts set
off pursuant to this Section 29 shall be distributed ratably
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among all of the Banks by the Bank setting off such amounts. If any Bank fails
to share such setoff ratably, the Agent shall have the right to withhold such
Bank's share of any payments until each of the Banks shall have, in the
aggregate, received a pro rata repayment.
Section 30. THE AGENT.
Section 30.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby
irrevocably appoints and authorizes Xxxxxx to act as Agent hereunder, provided,
however, the Agent is hereby authorized to serve only as agent for the Banks and
to exercise such powers as are reasonably incidental thereto and as are set
forth in this Agreement and the other Loan Documents. The Agent hereby
acknowledges that it does not have the authority to negotiate any agreement
which would bind the Banks or agree to any amendment, waiver or modification of
any of the Loan Documents or bind the Banks except as set forth in this
Agreement or the other Loan Documents. Except as provided in this Agreement and
the other Loan Documents, the Agent shall take action or refrain from acting
only upon instructions of the Banks. The Agent shall not have any duties or
responsibilities or any fiduciary relationship with any Bank except those
expressly set forth in this Agreement and the other Loan Documents. Neither the
Agent nor any of its affiliates shall be responsible to the Banks for any
recitals, statements, representations or warranties made by the Borrower or any
other Person whether contained herein or otherwise or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
other Loan Documents or any other document referred to or provided for herein or
for any failure by the Borrower or any other Person to perform its obligations
hereunder or thereunder or in respect of the Notes. The Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Agent nor any of its directors, officers, employees
or agents shall be responsible for any action taken or omitted to be taken by it
or them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct. The Agent in its separate capacity as a Bank
shall have the same rights and powers hereunder as any other Bank.
Section 30.2. ACTIONS BY AGENT. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement as reasonably deemed
appropriate unless it shall first have received the consent of the Majority
Banks (or, when expressly required hereby, all of the Banks), and shall be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
of the other Loan Documents in accordance with the instruction of the Majority
Banks (or, when expressly required hereby or thereby, all of the Banks), and
such instruction and any action taken or failure to act pursuant thereto shall
be binding upon the Banks and all future holders of the Notes.
Section 30.3. INDEMNIFICATION. Without limiting the obligations of the
Borrower hereunder or under any of the other Loan Documents, the Banks agree to
indemnify the Agent, its affiliates and its respective directors, officers,
agents and employees (to
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the extent not reimbursed by the Borrower), ratably in accordance with their
respective Line Percentages, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of this
Agreement or any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or the enforcement of any of the terms hereof or thereof or of any such other
documents; provided, that no Bank shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Agent (or any agent thereof), IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL
SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE OR
CONTRIBUTORY NEGLIGENCE.
Section 30.4 REIMBURSEMENT. Without limiting the provisions of Sections
9(a), 19(b), and 29, the Agent shall not be obliged to make available to
any Person any sum which the Agent is expecting to receive for the account of
that Person until the Agent has determined that it has received that sum. The
Agent may, however, disburse funds prior to determining that the sums which the
Agent expects to receive have been finally and unconditionally paid to the
Agent, if the Agent wishes to do so. If and to the extent that the Agent does
disburse funds and it later becomes apparent that the Agent did not then receive
a payment in an amount equal to the sum paid out, then any Person to whom the
Agent made the funds available shall, on demand from the Agent, refund to the
Agent the sum paid to that Person. If, in the opinion of the Agent, the
distribution of any amount received by it in such capacity hereunder or under
any of the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
Section 30.5. NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank
represents that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of the financial condition and affairs of
the Borrower and the decision to enter into this Agreement and the other Loan
Documents and agrees that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own appraisals and decisions
in taking or not taking action under this Agreement or any of the other Loan
Documents. Except as herein expressly provided to the contrary, the Agent shall
not be required to keep informed as to the performance or observance by the
Borrower of this Agreement, the other Loan Documents or any other document
referred to or provided for herein or therein or by any other Person of any
other agreement or to make inquiry of, or to inspect the properties or books of,
any Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not
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have any duty or responsibility to provide any Bank with any credit or other
information concerning any person which may come into the possession of the
Agent or any of their affiliates. Each Bank shall have access to all documents
relating to the Agent's performance of its duties hereunder at such Bank's
request. Unless any Bank shall promptly object to any action taken by the Agent
hereunder of which such Bank has actual knowledge (other than actions which
require the prior consent of such Bank in accordance with the terms hereof or to
which the provisions of Section 30.7 are applicable and other than actions which
constitute gross negligence or willful misconduct by the Agent), such Bank shall
be presumed to have approved the same.
Section 30.6. RESIGNATION OF AGENT. The Agent may resign at any time by
giving 60 days' prior written notice thereof to the Banks and the Borrower. Upon
any such resignation, the Banks (other than the resigning Agent) shall have the
right to appoint a successor Agent from among the Banks. If no successor to the
Agent shall have been so appointed by the Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent from among the remaining Banks, which shall be a financial
institution having a combined capital and surplus in excess of $1,000,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation, the provisions of this Agreement 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.
Section 30.7. ACTION BY THE BANKS, CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any action to be taken (including the giving of notice) may be taken, any
consent or approval required or permitted by this Agreement or any other Loan
Documents to be given by the Banks may be given, any term of this Agreement or
any other Loan Document or any other instrument, document or agreement related
to this Agreement or the other Loan Documents or mentioned therein may be
amended, and the performance or observance by the Borrower or any other Person
of any of the terms thereof and any Default or Event of Default (as defined in
any of the above-referenced documents or instruments) may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Majority Banks; provided,
however, that no such consent or amendment which affects the rights, duties or
liabilities of the Agent shall be effective without the written consent of the
Agent. Notwithstanding the foregoing, no amendment, waiver or consent shall do
any of the following unless in writing and signed by ALL of the Banks (a)
increase the principal amount of the Line (or subject any Bank to any additional
obligations), (b) reduce the principal of or interest on the Notes (including,
without limitation, interest on overdue amounts) or any fees payable hereunder,
(c) postpone any date fixed for any payment in respect of principal or interest
(including, without limitation, interest on overdue amounts) on the Notes, or
any fee hereunder; (d) change the definition of "Majority Banks" or number of
Banks which shall be required for the Banks or any of them to take any action
under the Loan Documents; (e) amend this Section 30.7; or (f) change the Line
Percentage of any Bank, except as permitted under Section 34 hereof.
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Section 30.8 DOCUMENTS. The Agent will forward to each Bank, promptly
after receipt thereof, a copy of each notice or other document furnished to the
Agent for such Bank hereunder.
Section 31. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Banks and the Agent and their affiliates, as well as the Banks' and
the Agent's and their affiliates' shareholders, directors, agents, officers,
subsidiaries and affiliates, from and against all damages, losses, settlement
payments, obligations, liabilities, claims, suits, penalties, assessments,
citations, directives, demands, judgments, actions or causes of action, whether
statutorily created or under the common law, and reasonable costs and expenses
incurred, suffered, sustained or required to be paid by an indemnified party by
reason of or resulting from the transactions contemplated hereby and relating to
any Environmental Laws or Applicable Requirements, except any of the foregoing
which result from the gross negligence or willful misconduct of any indemnified
party. In any investigation, enforcement matter, proceeding or litigation, or
the preparation therefor, the Banks and the Agent shall be entitled to select
their own counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel. In the
event of the commencement of any such proceeding or litigation against the Banks
or Agent by third parties, the Borrower shall be entitled to participate in such
proceeding or litigation with counsel of its choice at its expense, provided
that such counsel shall be reasonably satisfactory to the Banks or Agent. The
covenants of this Section 31 shall survive payment or satisfaction of payment of
amounts owing with respect to any Note or other Loan Document and satisfaction
of all of the Obligations, IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL
SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE OR
CONTRIBUTORY NEGLIGENCE.
Section 32 WITHHOLDING TAXES. The Borrower hereby agrees that:
(a) Any and all payments made by the Borrower hereunder shall
be made free and clear of, and without deduction for, any and all
present or future taxes, levies, fees, duties, imposts, deductions,
charges or withholdings of any nature whatsoever, excluding, in the
case of the Agent or the Banks or any holder of the Notes, (i) taxes
imposed on, or measured by, its net income or profits, (ii) franchise
taxes imposed on it, (iii) taxes imposed by any jurisdiction as a
direct consequence of it, or any of its affiliates, having a present or
former connection with such jurisdiction, including, without
limitation, being organized, existing or qualified to do business,
doing business or maintaining a permanent establishment or office in
such jurisdiction, and (iv) taxes imposed by reason of its failure to
comply with any applicable certification, identification, information,
documentation or other reporting requirement (all such non-excluded
taxes being hereinafter referred to as "Indemnifiable Taxes"). In the
event that any withholding or deduction from any payment to be made by
the Borrower hereunder is required in respect of any Indemnifiable
Taxes pursuant to any applicable law, or governmental rule or
regulation, then the Borrower will (i) direct to the relevant taxing
authority the full amount required to be so withheld or deducted, (ii)
forward to the Agent for delivery to the applicable
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Bank an official receipt or other documentation satisfactory to the
Agent and the applicable Bank evidencing such payment to such taxing
authority, and (iii) direct to the Agent for the account of the
relevant Banks such additional amount or amounts as is necessary to
ensure that the net amount actually received by each relevant Bank will
equal the full amount such Bank would have received had no such
withholding or deduction (including any Indemnifiable Taxes on such
additional amounts) been required. Moreover, if any Indemnifiable Taxes
are directly asserted against the Agent or any Bank with respect to any
payment received by the Agent or such Bank by reason of the Borrower's
failure to properly deduct and withhold such Indemnifiable Taxes from
such payment, the Agent or such Bank may pay such Indemnifiable Taxes
and the Borrower will promptly pay all such additional amounts
(including any penalties, interest or reasonable expenses) as is
necessary in order that the net amount received by such Person after
the payment of such Indemnifiable Taxes (including any Indemnifiable
Taxes on such additional amount) shall equal the amount such Person
would have received had not such Indemnifiable Taxes been asserted. Any
such payment shall be made promptly after the receipt by the Borrower
from the Agent or such Bank, as the case may be, of a written statement
setting forth in reasonable detail the amount of the Indemnifiable
Taxes and the basis of the claim.
(b) The Borrower shall pay any present or future stamp or
documentary taxes or any other excise or any other similar levies which
arise from any payment made hereunder 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 hereby indemnifies and holds harmless the
Agent and each Bank for the full amount of Indemnifiable Taxes or Other
Taxes (including, without limitation, any Indemnifiable Taxes or Other
Taxes imposed on amounts payable under this Section 32) paid by the
Agent or such Bank, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with
respect thereto, by reason of the Borrower's failure to properly deduct
and withhold Indemnifiable Taxes pursuant to paragraph (a) above or to
properly pay Other Taxes pursuant to paragraph (b) above. Any
indemnification payment from the Borrower under the preceding sentence
shall be made promptly after receipt by the Borrower from the Agent or
Bank of a written statement setting forth in reasonable detail the
amount of such Indemnifiable Taxes or such Other Taxes, as the case may
be, and the basis of the claim.
(d) If the Borrower pays any amount under this Section 32 to
the Agent or any Bank and such payee knowingly receives a refund of any
taxes with respect to which such amount was paid, the Agent or such
Bank, as the case may be, shall pay to the Borrower the amount of such
refund promptly following the receipt thereof by such payee.
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(e) In the event any taxing authority notifies the Borrower
that it has improperly failed to deduct or withhold any taxes (other
than Indemnifiable Taxes) from a payment made hereunder to the Agent or
any Bank, the Borrower shall timely and fully pay such taxes to such
taxing authority.
(f) The Agent or the Banks shall, upon the request of the
Borrower, take reasonable measures to avoid or mitigate the amount of
Indemnifiable Taxes required to be deducted or withheld from any
payment made hereunder if such measures can be taken without such
Person in its sole judgment suffering any legal, regulatory or economic
disadvantage.
(g) Without prejudice to the survival of any other agreement
of the parties hereunder, the agreements and obligations of the
Borrower contained in this Section 32 shall survive the payment in full
of the Obligations.
Section 33. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
all covenants, agreements, representations and warranties made herein, in the
other Loan Documents or in any documents or other papers delivered by or on
behalf of the Borrower pursuant hereto or referenced herein shall be deemed to
have been relied upon by the Banks and the Agent, notwithstanding any
investigation heretofore or hereafter made by them, and shall survive the making
by the Banks of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement, any Obligation
or any Note remains outstanding and unpaid or any Bank has any obligation to
make any Loans hereunder. All statements contained in any certificate or other
paper delivered by or on behalf of the Borrower pursuant hereto or in connection
with the transactions contemplated hereby shall constitute representations and
warranties by the Borrower hereunder.
Section 34. ASSIGNMENT AND PARTICIPATION. It is understood and agreed
that each Bank shall have the right to assign at any time all or a portion of
its Line Percentage, and interests in the risk relating to the Loans hereunder
in an amount equal to or greater than the lesser of (a) $5,000,000 or (b) such
Bank's entire Commitment to additional banks or other financial institutions
with the prior written approval of the Agent, and, so long as no Event of
Default has occurred and is continuing, the Borrower, which approvals shall not
be unreasonably withheld. Any Bank may at any time, and from time to time,
assign to any branch, lending office, or affiliate or such Bank all or any part
of its rights and obligations under the Loan Documents by notice to the Agent
and the Borrower. It is further agreed that each bank or other financial
institution which executes and delivers to the Agent, and the Borrower hereunder
an Assignment and Acceptance substantially in the form of Exhibit D hereto (an
"Assignment and Acceptance") together with an assignment fee in the amount of
$2,500 payable by the assigning Bank to the Agent, shall, on the date specified
in such Assignment and Acceptance, become a party to this Agreement and the
other Loan Documents for all purposes of this Agreement and the other Loan
Documents, and its portion of the Commitment and the Loans shall be as set forth
in such Assignment and Acceptance. The Bank assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations
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under this Agreement and the other Loan Documents. Upon the execution and
delivery of such Assignment and Acceptance, (a) the Borrower shall issue to the
bank or other financial institution a Note in the amount of such bank's or other
financial institution's Commitment dated the date of the assignment or such
other date as may be specified by the Agent, and otherwise completed in
substantially the form of Exhibit A, and to the extent any assigning Bank has
retained a portion of its obligations hereunder, a replacement Note to the
assigning Bank reflecting its assignment; and (b) this Agreement shall be deemed
to be appropriately amended to reflect (i) the status of the bank or financial
institution as a party hereto and (ii) the status and rights of the Banks
hereunder.
Each Bank shall also have the right to grant participations to one or
more banks or other financial institutions in its Commitment and the Loans. The
documents evidencing any such participation shall limit such participating
bank's or financial institution's voting rights with respect to this Agreement
to the matters set forth in Section 30.7 which require the approval of all
Banks.
Notwithstanding the foregoing, no assignment or participation shall
operate to increase the Line hereunder or otherwise alter the substantive terms
of this Agreement, and no Bank which retains a Commitment hereunder shall have a
Commitment of less than $10,000,000, as such amount may be reduced upon
reductions of the Line pursuant to Section 2(d) hereof.
Anything contained in this Section 34 to the contrary notwithstanding,
any Bank may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or under any of the
other Loan Documents.
Section 35. PARTIES IN INTEREST. All the terms of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto
and thereto; provided, that the Borrower shall not assign or transfer its rights
or obligations hereunder or thereunder without the prior written consent of each
of the Banks.
Section 36. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the other Loan Documents shall be in writing
and shall be delivered in hand, mailed by United States first class mail, as
applicable, postage prepaid, or sent by telegraph, telex or facsimile and
confirmed by letter, addressed as follows:
(a) if to the Borrower at the address specified in Section 21
of the Credit Agreement; or
(b) if to Xxxxxx or the Agent, at the address specified in
Section 21 of the Credit Agreement; or
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(c) if to any other Bank, at the address set forth next to
such Bank's name on Schedule 1 hereto;
or such other address for notice as shall have last been furnished in writing to
the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer, (b) if sent by registered or certified first-class mail,
postage prepaid, five Business Days after the posting thereof, and (c) if sent
by telex, facsimile, or cable, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
Section 37. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Banks and the Agent
would otherwise have. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof. This
Agreement and any amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
instrument. In proving this Agreement it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
Section 38. CONSENTS, ETC. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in this
Section 38, subject to the provisions of Section 30.7. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement to be given by the Banks may
be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower, and the Majority Banks. To the
extent permitted by law, no course of dealing or delay or omission on the part
of any of the Banks or the Agent in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
Section 39. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS
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PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENT AND
THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BECAUSE OF, AMONG OTHER THINGS, THE BORROWER'S WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SECTION 40. GOVERNING LAW. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN
GENERAL OBLIGATIONS LAW SECTION 5-1401). THE BORROWER CONSENTS TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF THE BANKS OR THE AGENT UNDER
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 41. SEVERABILITY. The provisions of this Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
42. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein,
each payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari passu
among the Banks, in accordance with the aggregate outstanding principal amount
of the Obligations owing to each Bank divided by the aggregate outstanding
principal amount of all Obligations.
(b) Following the occurrence and during the continuance of any
Event of Default, each Bank agrees that if it shall, through the exercise of a
right of banker's lien, setoff or counterclaim against the Borrower (pursuant to
Section 29 or otherwise),
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including a secured claim under Section 506 of the Bankruptcy Code or other
security or interest arising from or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or other similar law or
otherwise, obtain payment (voluntary or involuntary) in respect of the Notes,
Loans and other Obligations held by it (other than pursuant to Section 13,
Section 14 or Section 16) as a result of which the unpaid principal portion of
the Notes and the Obligations held by it shall be proportionately less than the
unpaid principal portion of the Notes and Obligations held by any other Bank, it
shall be deemed to have simultaneously purchased from such other Bank a
participation in the Notes and Obligations held by such other Bank, so that the
aggregate unpaid principal amount of the Notes, Obligations and participations
in Notes and Obligations held by each Bank shall be in the same proportion to
the aggregate unpaid principal amount of the Notes and Obligations then
outstanding as the principal amount of the Notes and other Obligations held by
it prior to such exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Notes and other Obligations outstanding prior to such
exercise of banker's lien, setoff or counterclaim; provided, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 42 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 adjustments restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Person holding such a participation in the Notes and the
Obligations 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 to such Person as fully as if such Person had made a Loan
directly to the Borrower in the amount of such participation.
SECTION 43. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first above written.
USA WASTE SERVICES, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President & Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, individually and as Agent
By: /s/ XXXXXXXXXXX X. XXXXXXXX
-------------------------------------
Name: XXXXXXXXXXX X. XXXXXXXX
Title: VICE PRESIDENT
