EXHIBIT 10.1(m)
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FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
This FIRST AMENDMENT TO INTERCREDITOR AGREEMENT (this "First
Amendment") is dated as of April 1, 2002 and entered into by and among COVANTA
ENERGY CORPORATION, a Delaware corporation ("Company"), and THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "Borrowers" and each a "Borrower"), THE
SUBSIDIARIES OF COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS SUBSIDIARY
GUARANTORS (each a "Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"), the financial institutions parties hereto, BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders ("Administrative Agent"), and DEUTSCHE
BANK AG, NEW YORK BRANCH, as Documentation Agent for the Lenders ("Documentation
Agent"), and is made with reference to that certain Intercreditor Agreement
dated as of March 14, 2001 (as in effect on the date hereof, the "Intercreditor
Agreement"), by and among Company and the subsidiaries of Company party thereto,
as borrowers, the financial institutions listed on the signature pages thereof
as lenders, Administrative Agent, and Documentation Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Intercreditor Agreement (as amended by this First Amendment).
RECITALS
WHEREAS, on April 1, 2002 (the "Petition Date"), Borrowers
filed a voluntary petition for relief under the Bankruptcy Code with the United
States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court") (such proceedings are hereinafter referred to as the "Chapter 11
Cases"), and each Borrower continues to operate its businesses and manage its
properties as a debtor-in-possession pursuant to Sections 1107 and 1108 of the
Bankruptcy Code; and
WHEREAS, Borrowers have requested Pooled Facility Lenders to
provide, and Pooled Facility Lenders have agreed to provide, on the terms and
conditions set forth in that certain Debtor-In-Possession Credit Agreement dated
as of April 1, 2002 (as amended, restated, supplemented or otherwise modified,
the "DIP Credit Agreement") by and among Company and the subsidiaries of Company
party thereto, as borrowers, DIP Lenders and DIP Agents, debtor-in-possession
credit facilities consisting of (i) a revolving loan and letter of credit
facility of up to $115,000,000, and (ii) an additional letter of credit facility
of up to $367,853,962.13; and
WHEREAS, it is a condition precedent to the obligations of DIP
Lenders to make loans and issue letters of credit under the DIP Credit Agreement
that Borrowers, Subsidiary Guarantors, DIP Lenders and DIP Agents shall have
entered into this First Amendment;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE INTERCREDITOR AGREEMENT
1.1. Provisions Relating to Defined Terms.
Section 1.1 of the Intercreditor Agreement is hereby amended
by deleting the definitions of "Borrower", "Creditor Parties", "Ratable
Paydown", "Realized Deficiency", and "Realized Ratable Share" contained therein
and inserting the following new definitions in the appropriate alphabetical
order:
"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the Southern District of New York.
"Borrower" shall have the meaning assigned to that term in the
introduction to this Agreement and shall also include each Subsidiary
of Company listed on the signature pages of the First Amendment as a
Borrower and each New Borrower.
"Borrowing Order Entry Date" shall mean the day an order
substantially in the form of Exhibit IX to the DIP Credit Agreement
(with any modifications thereto approved by DIP Agents and Requisite
DIP Lenders (or such other number of DIP Lenders as is required under
the DIP Credit Agreement) in their sole discretion) is entered by the
Bankruptcy Court in the Chapter 11 Cases after a final hearing under
Bankruptcy Rule 4001(c)(2); provided that as of such day such order (x)
is in full force and effect without amendment, supplement or other
modification (other than amendments, supplements or modifications made
with the express written consent or joinder of DIP Agents and Requisite
DIP Lenders (or such other number of DIP Lenders as is required under
the DIP Credit Agreement) and approved by the Bankruptcy Court), and
(y) has not been reversed or stayed by the Bankruptcy Court or any
other court of competent jurisdiction.
"Creditor Parties" shall mean Lenders, Existing Opt-Out
Facility Agents, Existing Pooled Facility Agents, Credit Agent,
Collateral Agent and DIP Agents.
"DIP Agents" shall mean the "Agents" as such term is defined
in the DIP Credit Agreement.
"DIP Closing Date" shall mean the "Closing Date" as such term
is defined in the DIP Credit Agreement.
"DIP Credit Agent" shall mean the "Administrative Agent" as
such term is defined in the DIP Credit Agreement.
"DIP Credit Agreement" shall mean that certain
Debtor-In-Possession Credit Agreement dated as of April 1, 2002, by and
among certain Borrowers and certain other domestic Subsidiaries of
Company, DIP Lenders and DIP Agents, as such agreement may be amended,
supplemented or otherwise modified time to time.
"DIP Lenders" shall mean the financial institutions which are
"Lenders" as defined in the DIP Credit Agreement.
"DIP Loan Documents" shall mean the "Loan Documents" as such
term is defined in the DIP Credit Agreement.
"DIP Obligations" shall mean the "Obligations" as such term is
defined in the DIP Credit Agreement.
"First Amendment" shall mean that certain First Amendment to
Intercreditor Agreement dated as of April 1, 2002 by and among
Borrowers, the Subsidiary Guarantors, the Lenders party thereto, Bank
of America, N.A., as administrative agent for such Lenders, and
Deutsche Bank AG, New York Branch, as documentation agent for such
Lenders.
"Interim Borrowing Order" shall mean the "Interim Borrowing
Order" as such term is defined in the DIP Credit Agreement.
"New Borrower" shall mean each Subsidiary of Company that is
not a party to the Credit Agreement that is a borrower under the DIP
Credit Agreement.
"Ratable Paydown" shall mean, with respect to any Opt-Out
Lender at any time that a Realized Deficiency exists with respect to
such Opt-Out Lender, the aggregate sum of such Opt-Out Lender's
Realized Ratable Shares calculated with respect to each permanent
prepayment of principal of the Pooled Facility Loans, each permanent
principal reimbursement payment made in respect of honored drawings
under the Pooled Letters of Credit, each permanent reduction of
Revolving Loan Commitments and each permanent principal reimbursement
payment made in respect of honored drawings under the Tranche B Letters
of Credit described in clauses (i), (ii), (iii) and (iv) of the
definition of Realized Ratable Share; provided, however, that the
amount of the Ratable Paydown of any Opt-Out Lender shall be reduced
pro rata by the amount of any financing needs for the project directly
relating to the relevant Opt-Out Facility which is funded by the
Borrowers after the Closing Date and is not recovered by the Borrowers
from the sale price of such project (and reflected as a reduction in
the Realized Deficiencies of Opt-Out Lenders relating to the relevant
Opt-Out Facility) or through distributions from such project; and
provided further, however, that the Ratable Paydown (and amounts owed
with respect to the Ratable Paydown Indemnity) of any Opt-Out Lender
with respect to the Anaheim Pond arena Opt-Out Facility shall not
exceed, in any event, the Realized Deficiency of such Opt-Out Lender
with respect to such Opt-Out Facility determined without giving effect
to the last sentence of the definition of "Realized Deficiency".
"Realized Deficiency" shall mean, with respect to any Opt-Out
Lender under a particular Opt-Out Facility, the total amount of such
Opt-Out Lender's deficiency claim (including, without limitation, any
interest, fees or other costs, to the extent reimbursable pursuant to
the applicable Opt-Out Facility Documents as in effect on the date
hereof) against Company under Company's guaranty of such Opt-Out
Facility and/or under the Class A Palladium Put Agreement, Class B
Palladium Put Agreement or Class II Senators Put Agreement (in each
case, if any), determined after any disputes with respect thereto have
been resolved by settlement agreement, by liquidation of such Opt-Out
Lender's claim (including liquidation of the relevant Opt-Out Lender
Collateral or, as the case may be, application of any Excluded
Collateral) or by the judgment of a court of competent jurisdiction
(including a bankruptcy court pursuant to Section 502(c) of the
Bankruptcy Code or otherwise in any case under the Bankruptcy Code
concerning Company or its Subsidiaries). In order to establish a
Realized Deficiency (or the amount thereof) for purposes of this
Agreement, an Opt-Out Lender shall not be required to take any action
against any Person other than Company or its applicable Subsidiary,
except to the extent expressly required by the applicable Opt-Out
Facility Documents. Subject to the last proviso to the definition of
"Ratable Paydown", for purposes of this Agreement a Realized Deficiency
in the aggregate amount of $60,000,000 shall be deemed to exist with
respect to the Anaheim Pond arena Opt-Out Facility during the period
from the first issuance of a Tranche B Letter of Credit until the date
on which a Realized Deficiency exists with respect to such Opt-Out
Facility without giving effect to this sentence.
"Realized Ratable Share" shall mean, for any Opt-Out Lender
under any Opt-Out Facility, with respect to (i) any repayment of
principal on the Pooled Facility Loans on or after the Closing Date,
(ii) any principal reimbursement payments made in respect of honored
drawings under the Pooled Letters of Credit on or after the Closing
Date (in each case under clause (i) and (ii), to the extent that such
repayment does not result in an equal increase in the Revolving Loan
Commitments or any other commitments in effect), (iii) any permanent
reduction of the Revolving Loan Commitments, and (iv) any principal
reimbursement payments made in respect of honored drawings under the
Tranche B Letters of Credit on or after the Petition Date, as the case
may be, the product of (a) the total amount of such Opt-Out Lender's
Realized Deficiency multiplied by (b) the ratio obtained by dividing
(x) the amount of such repayment of principal on the Pooled Facility
Loans or the amount of such principal reimbursement payments made in
respect of honored drawings under the Pooled Letters of Credit or such
permanent reduction of the Revolving Loan Commitments or the amount of
such principal reimbursement payments made in respect of honored
drawings under the Tranche B Letters of Credit, as the case may be, by
(y) the sum of the total Pooled Facility Exposure and the total
Revolving Loan Exposure of all Lenders and the total Tranche B Loan
Exposure, to be measured as of the time of any such repayment of
principal on the Pooled Facility Loans or any such reimbursement of
principal made in respect of honored drawings under the Pooled Letters
of Credit or any such permanent reduction of the Revolving Loan
Commitments or any such reimbursement of principal made in respect of
honored drawings under the Tranche B Letters of Credit (without giving
effect to such prepayment or reduction).
"Requisite DIP Lenders" shall mean the "Requisite Lenders" as
such term is defined in the DIP Credit Agreement.
"Tranche A Facility" shall mean the revolving loan and letter
of credit facility in the original principal amount of up to
$115,000,000 established under the DIP Credit Agreement.
"Tranche A Lender" shall mean a Lender in its capacity as a
holder of Tranche A Loan Exposure.
"Tranche A Letters of Credit" shall mean letters of credit
issued under the Tranche A Facility.
"Tranche A Loan Exposure" shall mean, with respect to any
Lender, as of any date of determination (i) prior to the termination of
such Lender's commitments to extend credit under the Tranche A
Facility, the amount of such commitment, and (ii) after the termination
of the such commitment, the sum of (a) the aggregate outstanding
principal amount of the loans made by that Lender under the Tranche A
Facility plus (b) in the event that Lender is an issuer of Tranche A
Letters of Credit, the maximum amount available to be drawn under
Tranche A Letters of Credit issued by that Lender and the amount of any
unreimbursed drawings under such Tranche A Letters of Credit (in each
case net of any participations purchased by other Lenders in such
Tranche A Letters of Credit or in such unreimbursed drawings) plus (c)
the aggregate amount of all participations purchased by that Lender in
any outstanding Tranche A Letters of Credit or any unreimbursed
drawings under any Tranche A Letters of Credit.
"Tranche B Facility" shall mean the letter of credit facility
of up to $367,853,962.13 established under the DIP Credit Agreement to
replace certain Pooled Letters of Credit and other letters of credit
issued and outstanding under the Credit Agreement as of the date of the
DIP Credit Agreement.
"Tranche B Lender" shall mean a Lender in its capacity as a
holder of Tranche B Loan Exposure.
"Tranche B Letters of Credit" shall mean letters of credit
issued under the Tranche B Facility.
"Tranche B Loan Exposure" shall mean with respect to any
Lender, as of any date of determination (i) prior to the termination
such Lender's commitments to extend credit under the Tranche B
Facility, the amount of such commitment, and (ii) after the termination
of such commitment, the sum of (a) the aggregate outstanding principal
amount of the loans made by that Lender under the Tranche B Facility
plus (b) in the event that Lender is an Issuing Lender of Tranche B
Letters of Credit, the maximum amount available to be drawn under
Tranche B Letters of Credit issued by that Lender and the amount of any
unreimbursed drawings under such Tranche B Letters of Credit (in each
case net of any participations purchased by other Lenders in such
Tranche B Letters of Credit or in any such unreimbursed drawings
thereunder) plus (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Tranche B Letters of Credit
or any unreimbursed drawings under any Tranche B Letters of Credit.
1.2. Certain References to Pooled Facility Lenders and
Collateral Agent.
Section 1 of the Intercreditor Agreement is hereby amended by
inserting the following new Section 1.3 at the end thereof:
"Section 1.3 Certain References.
(a) Each reference to "Collateral Agent" in Section 6.1
(other than paragraph (g) thereof) shall be deemed to include the DIP
Credit Agent.
(b) Each reference to a "Pooled Facility Lender" or the
"Pooled Facility Lenders" in the definition of "Lenders" contained in
this Agreement and each reference to a "Pooled Facility Lender" or the
"Pooled Facility Lenders" in Section 4.1 of this Agreement shall be
deemed to include each such Pooled Facility Lender in its capacity as a
DIP Lender, if applicable. Notwithstanding anything to the contrary
contained herein, no obligations owed to DIP Lenders or DIP Agents
under the DIP Loan Documents shall constitute "Subordinated
Obligations"."
1.3. Provisions Relating to Information.
Section 4.1 of the Intercreditor Agreement is hereby amended
by deleting it in its entirety and substituting therefor the following:
"Section 4.1 Information. In the event Collateral Agent
proceeds to foreclose upon, collect, sell or otherwise dispose of or
take any other action with respect to the Collateral, or any portion
thereof, or to enforce any Collateral Document, or in the event
Collateral Agent or DIP Credit Agent proposes to take any other action
pursuant to this Agreement or requests instructions from the Secured
Parties as provided herein, upon the request of Collateral Agent,
Credit Agent or DIP Credit Agent, each of the following Parties agrees
to promptly provide to Collateral Agent, Credit Agent or DIP Credit
Agent, as applicable, the information described below:
(a) Credit Agent on behalf of Pooled Facility Lenders and
Revolving Lenders agrees to promptly from time to time notify
Collateral Agent and DIP Credit Agent of (i) the aggregate amount of
principal of and interest on the Obligations as at such date as
Collateral Agent or DIP Credit Agent may specify, (ii) the current
Revolving Loan Commitment of each Revolving Lender under the Credit
Agreement, the aggregate amount of all funded and unfunded
participations under the Credit Agreement, the amounts due and payable
under the Ratable Paydown Indemnity (upon notification from the
relevant Opt-Out Lenders of a Realized Deficiency) and the amount of
the Preferred Distribution, in each case as at such date as Collateral
Agent or DIP Credit Agent may specify, and (iv) any payment received by
Credit Agent to be applied to the principal of or interest on the
Obligations. Credit Agent shall certify as to such amounts and
Collateral Agent and DIP Credit Agent shall be entitled to rely
conclusively upon such certification.
(b) DIP Credit Agent on behalf of DIP Lenders agrees to
promptly from time to time notify Collateral Agent and Credit Agent of
(i) the aggregate amount of principal of and interest on the DIP
Obligations, the current commitments of each DIP Lender under the DIP
Credit Agreement, and the aggregate amount of all funded and unfunded
participations under the DIP Credit Agreement, in each case as at such
date as Collateral Agent or Credit Agent may specify, and (ii) any
payment received by DIP Credit Agent to be applied to the principal of
or interest on the DIP Obligations. DIP Credit Agent shall certify as
to such amounts and Collateral Agent and Credit Agent shall be entitled
to rely conclusively upon such certification.
(c) Each Opt-Out Lender and Existing Opt-Out Facility Agent
agrees to promptly from time to time notify Collateral Agent and DIP
Credit Agent of (i) the aggregate amount of principal of and interest
on the relevant Obligations arising under the relevant Opt-Out Facility
as at such date as Collateral Agent or DIP Credit Agent may specify,
(ii) the aggregate amount of all unfunded participations and
commitments, and (iii) any payment received by such Opt-Out Lender or
Existing Opt-Out Facility Agent to be applied to the principal of or
interest on the Obligations. Each Opt-Out Lender and Existing Opt-Out
Facility Agent shall certify as to such amounts and Collateral Agent
and DIP Credit Agent shall be entitled to rely conclusively upon such
certification.
(d) The Senior Debenture Trustee agrees, by acceptance of the
benefits hereof, to promptly from time to time notify Collateral Agent
of the outstanding principal amount of the Senior Debentures and the
amount of accrued but unpaid interest thereon, at such date as
Collateral Agent may specify. The Senior Debenture Trustee shall, or
shall cause the registrar for the Senior Debentures to, certify as to
such amount as reflected in the register maintained for such purpose by
the Senior Debenture Trustee or such registrar, as the case may be, and
Collateral Agent shall be entitled to rely conclusively upon such
certification."
1.4. Provision Relating to Ratable Paydown Indemnity.
Section 5.2 of the Intercreditor Agreement is hereby amended
by deleting it in its entirety therefrom and substituting therefor the
following:
"Section 5.2 Ratable Paydown Indemnity. Borrowers and the
relevant Opt-Out Lenders (or the relevant Existing Opt-Out Facility
Agent) shall notify Collateral Agent and DIP Credit Agent of the
existence and the amount of any Realized Deficiency as soon as
Borrowers and such Opt-Out Lenders become aware of it. Upon receipt of
such notice, Collateral Agent shall calculate the Realized Ratable
Shares and Ratable Paydowns (if any) of the relevant Opt-Out Lenders
(which calculations shall be delivered by the Collateral Agent to each
other Creditor Party (with a copy to the Company) and unless the
Collateral Agent shall have been notified by any Creditor Party in
writing within five Business Days of receipt of such notice, such
calculations shall be conclusive and binding) and Borrowers shall
immediately be obligated to pay and indemnify each Opt Out Lender in
the amount of such Opt-Out Lender's Ratable Paydown. It is understood
and agreed that the Borrowers' obligation to pay the Ratable Paydown
Indemnity as set forth herein shall only be due and payable if (i) a
Realized Deficiency exists and (ii) the Pooled Facility Lenders and/or
the Revolving Lenders have received a permanent cash paydown (which
shall occur at any time the Pooled Facility Lenders and/or the
Revolving Lenders receive cash in repayment of outstanding Obligations
and there is no dollar for dollar increase in the Revolving Loan
Commitments or at any time there is a permanent dollar for dollar
reduction in the Revolving Loan Commitments) and/or the DIP Lenders
have received a permanent cash paydown of funded amounts of Tranche B
Facility Exposure (which shall occur at any time the DIP Lenders
receive cash in repayment of outstanding honored drawings under Tranche
B Letters of Credit). Notwithstanding anything to the contrary
contained in this Agreement, (x) the Canadian Loss Sharing Lenders
shall not at any time be entitled to any Ratable Paydown or any claim
arising under the Ratable Paydown Indemnity, (y) no Opt-Out Lender
shall be entitled to payments on account of the Opt-Out Facility
Obligations if and to the extent that the sum of all such payments on
account of the Opt-Out Facility Obligations to such Opt-Out Lender and
all payments on account of the Ratable Paydown Indemnity to such
Opt-Out Lender would exceed the aggregate Opt-Out Facility Exposure of
such Opt-Out Lender, and (z) each Opt-Out Lender under the Anaheim Pond
arena Opt-Out Facility hereby agrees to repay to the applicable Persons
entitled to the same any payment made to such Opt-Out Lender that is
subsequently determined to be contrary to the terms of the last proviso
to the definition of "Ratable Paydown". Assuming the aggregate amount
of the Pooled Facilities at such time is $469,264,742 and the aggregate
amount of the Revolving Facility at such time is $19,297,717,
immediately upon availability of the Tranche B Facility for the
issuance of Tranche B Letters of Credit and after giving effect to the
First Amendment the aggregate amount owed to the Opt-Out Lenders with
respect to the Anaheim Pond arena Opt-Out Facility under the Ratable
Paydown Indemnity would be $13,600,000."
1.5. Miscellaneous Provisions.
Section 7.1(f) of the Intercreditor Agreement is hereby
amended by deleting it in its entirety and substituting therefor the following:
"(f) The Collateral Agent may deem and treat the
Secured Parties executing and delivering this Agreement, the First
Amendment and the Senior Debenture Trustee as the "Secured Parties" for
all purposes hereof unless and until (i) a notice of the assignment or
transfer of any interest held by such Party shall have been filed with
the Collateral Agent in accordance with the terms of the Credit
Agreement, (ii) with respect to the Opt-Out Lenders, the Existing
Opt-Out Facility Agents shall have so notified the Collateral Agent, or
(iii) with respect to the DIP Lenders, the DIP Credit Agent shall have
so notified the Collateral Agent. Company agrees that it will advise
the Collateral Agent of any transfer by any Creditor Party of any
Pooled Facility Exposure, Opt-Out Facility Exposure, Tranche A Loan
Exposure or Tranche B Loan Exposure held by such Creditor Party and
will, from time to time upon request of the Collateral Agent, deliver a
list to the Collateral Agent (which shall be distributed by the
Collateral Agent to each Creditor Party) setting forth, for the Pooled
Facility Exposure, the Opt-Out Facility Exposure, the Tranche A Loan
Exposure and the Tranche B Loan Exposure, the unpaid principal amount
and holder thereof. The Collateral Agent may rely on such list unless,
after the distribution thereof, the Collateral Agent is notified by a
Secured Party that such information as set forth on such list is
inaccurate."
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this First
Amendment and to amend the Intercreditor Agreement in the manner provided
herein, Borrowers represent and warrant to each Lender that the following
statements are true, correct and complete:
2.1. Corporate Power and Authority. Each Loan Party has all
requisite corporate power and authority to enter into this First Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Intercreditor Agreement as amended by this First Amendment (the
"Amended Agreement").
2.2. Authorization of Agreements. The execution and delivery
of this First Amendment has been duly authorized by all necessary corporate
action on the part of each Loan Party and the performance of the Amended
Agreement has been duly authorized by all necessary corporate action on the part
of each Borrower.
2.3. No Conflict. The execution and delivery by each Loan
Party of this First Amendment and the performance by each Borrower of the
Amended Agreement do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to any Loan Party or any of its
Subsidiaries, or the Certificate or Articles of Incorporation or Certificate of
Formation or Bylaws or Operating Agreement of any Loan Party or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on any Loan Party or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, mortgage, deed of trust, Intercreditor
Agreement or loan agreement, or any other material agreement, contract or
instrument to which any Loan Party or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be subject
(each such indenture, mortgage, deed of trust, Intercreditor Agreement, loan
agreement, material agreement, contract or instrument, a "Contractual
Obligation"), (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Loan Party or any of its
Subsidiaries, or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Loan Party or any
of its Subsidiaries.
2.4. Governmental Consents. The execution and delivery by each
Loan Party of this First Amendment and the performance by each Borrower of the
Amended Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
2.5. Binding Obligation. This First Amendment has been duly
executed and delivered by each Loan Party, and each of this First Amendment and
the Amended Agreement is the legally valid and binding obligations of each Loan
Party enforceable against each Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
3.1. Loan Party Acknowledgements. Each Borrower and Subsidiary
Guarantor hereby acknowledges that such Loan Party has read this First Amendment
and consents to the terms hereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this First Amendment, the obligations of
such Loan Party under each of the Loan Documents to which such Loan Party is a
party shall not be impaired and each of the Loan Documents to which such Loan
Party is a party are, and shall continue to be, in full force and effect and are
hereby confirmed and ratified in all respects.
3.2. Borrower and Loan Party Acknowledgements. Borrowers and
Lenders hereby acknowledge that the obligations of Borrowers arising under
Sections 5.2 and 5.3 of the Amended Agreement are and shall be pre-Petition Date
secured obligations of the relevant Borrowers.
3.3. New Borrowers. Each New Borrower hereby acknowledges and
agrees that by executing and delivering this First Amendment it shall become a
Borrower under the Intercreditor Agreement and hereafter shall have the rights
and obligations of a Borrower thereunder. Each New Borrower agrees to be bound
by all of the terms of the Intercreditor Agreement as fully as if such New
Borrower was one of the original Borrowers party thereto.
SECTION 4. MISCELLANEOUS
4.1. Reference to and Effect on the Intercreditor Agreement
and the Other Loan Documents.
A. On and after the effective date of any of the
amendments contained herein, each reference in the Intercreditor
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Intercreditor Agreement, and each
reference in the other Loan Documents to the "Intercreditor Agreement",
"thereunder", "thereof" or words of like import referring to the
Intercreditor Agreement shall mean and be a reference to the Amended
Agreement.
B. Except as specifically amended by this First
Amendment, the Intercreditor Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and
confirmed.
C. The execution, delivery and performance of this First
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent, any DIP Agent, Collateral Agent, Credit Agent
or any Lender, under the DIP Loan Documents, the Intercreditor
Agreement or any of the other Loan Documents.
4.2. Fees and Expenses. Each Borrower acknowledges that all
costs, fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent, Documentation Agent or Lenders and their
respective counsel (including, without limitation, O'Melveny & Xxxxx LLP and
Ernst & Young Corporate Finance LLC) with respect to this First Amendment and
the documents and transactions contemplated hereby shall be for the account of
Borrowers.
4.3. Headings. Section and subsection headings in this First
Amendment are included herein for convenience of reference only and shall not
constitute a part of this First Amendment for any other purpose or be given any
substantive effect.
4.4. Applicable Law. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.5. Counterparts; Effectiveness. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This First Amendment shall become
effective upon (i) the execution of a counterpart hereof by Requisite Lenders,
(ii) receipt by Company, Credit Agent and DIP Agent of written or telephonic
notification of such execution and authorization of delivery thereof, and (iii)
receipt by Credit Agent, for distribution (as appropriate) to DIP Agents and DIP
Lenders, of all reasonable and documented costs and expenses (including legal
fees and other out-of-pocket expenses) of DIP Agents and DIP Lenders incurred in
connection with this First Amendment and the transactions contemplated hereby,
including such fees and expenses of (a) O'Melveny & Xxxxx LLP, counsel to DIP
Agents, (b) Ernst & Young Corporate Finance LLC, and (c) counsel to DIP Lenders
to the extent invoiced to Company prior to the DIP Closing Date.
4.6. Notice Addresses. For the purposes of the Intercreditor
Agreement, the addresses of the parties thereto (until notice of a change
thereof is delivered as provided in Section 7.1(a) of the Intercreditor
Agreement) shall be as set forth under each party's name on the signature pages
attached hereto.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
COVANTA ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Esq.
Title: Authorized Officer
Each of the entities listed on Schedule A annexed
hereto
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Esq.
Title: Authorized Officer
Each of the entities listed on Schedule B annexed
hereto
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Officer
Notice Address for each Borrower:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
SUBSIDIARY GUARANTORS::
Each of the entities listed on Schedule C annexed
hereto
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Esq.
Title: Authorized Officer
Notice Address for each Subsidiary Guarantor:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Each of the entities named on Schedule D annexed
hereto
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Notice Address for each Subsidiary Guarantor:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.
as Administrative Agent and Collateral Agent and
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Notice Address:
Attention: Xxxxx Xxxxx
1 Independence Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
DEUTSCHE BANK AG, NEW YORK BRANCH
As Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx, Managing Director
Title: Head of Workout
Notice Address:
Attention: Xxxxx X. Xxxxx
Deutsche Bank AG
New York Branch
00 Xxxx 00xx Xx., 0xx xxxxx
Xxx Xxxx, XX 00000
ABN AMRO BANK N.V.
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
Notice Address:
Attention: Credit Administration
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
BANK OF AMERICA SECURITIES LLC,
as agent for BANK OF AMERICA, N.A.
as a Lender
By: /s/ Xxxxxxx Xxxx
-----------------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
By:
-----------------------------------------------
Notice Address:
Attention: Xxx Xxxxxx
Bank of America
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
BANK OF MONTREAL,
as a Lender
By: /s/ Xxxxxxx X. Turf
-----------------------------------------------
Name: Xxxxxxx X. Turf
Title: Director
Notice Address:
Attention: Xxxxxxx Turf
Bank of Montreal
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxxxxxx, Xx 00000
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx, Xx.
Title: Director
Notice Address:
Attention: Xxxxxx X. Xxxxxxxxxxx, Xx.
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
BAYERISHCE HYPO-UND VEREINSBANK AG,
as a Lender
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ C. Xxxxxxxx Xxxx
-----------------------------------------------
Name: C. Xxxxxxxx Xxxx
Title: Director
Notice Address:
Attention: Xxxxxxxxx Xxxxxxxx
Bayerische Hypo-und Vereinsbank AG
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
BNP PARIBAS,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxxx Xxxxxxxx
BNP Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxx Xxxxxxx
Commerzbank AG
2 World Financial Center
Xxx Xxxx, XX 00000
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxxxxx
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
MIZUHO CORPORATION BANK, LTD., NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
Notice Address:
Attention: Xxxxx X. Xxx
Mizuho Corporate Bank, Ltd.
New York Branch
0000 Xxxxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Notice Address:
Attention: Xxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
XX BANK NATIONAL ASSOCIATION (formerly known as
Firstar Bank, N.A.),
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Notice Address:
Attention: Xxxx X. Xxxxxxx
Firstar Bank, N.A.
7th Floor - Special Assets
Xxx Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxxx
Xx. Xxxxx, XX 00000
FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President
Notice Address:
Attention: Xxxxxxx X. X'Xxxxx
Fleet National Bank
000 Xxxxxxx Xxxxxx
Mail Stop: MA DE 10006A
Xxxxxx, XX 00000
HSBC BANK USA,
as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxxx
HSBC Bank USA
000 Xxxxxxxx
Xxx Xxxx, XX 00000
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxx X. Xxxxxx
The Huntington National Bank
000 Xxxxxx Xxxxxx, XX00
Xxxxxxxxx, XX 00000
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender
By: /s/ Takuya Honjo
-----------------------------------------------
Name: Takuya Honjo
Title: Deputy General Manager
Notice Address:
Attention: Xxxx Xxxxxx
The Industrial Bank of Japan Trust
Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Corporate Finance Division
Structured Finance Department
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Corporate Finance Division
Structured Finance Department
Notice Address:
Attention: Xxxxx X. Xxxxx
Landesbank Hessen-Thuringen Girozentrale
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE ROYAL BANK OF SCOTLAND, plc,
as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Specialized
Lending Services
Notice Address:
Attention: Xxxxxx Xxxxxx
Specialized Lending Services
10th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
NATIONAL WESTMINISTER BANK PLC, New York and/or
Nassau Branch,
as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Specialized
Lending Services
Notice Address:
Attention: Xxxxxx Xxxxxx
Specialized Lending Services
00xx Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SANPAOLO IMI S.p.A.,
as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: GM
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: SVP
Notice Address:
Attention: Xxxxxx Xxxxxxx
San Paolo IMI S.p.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
UFJ BANK LIMITED,
NEW YORK BRANCH
(formerly knows as The Sanwa Bank,Limited), as a
Lender
By: /s/ Nobuo Harima
-----------------------------------------------
Name: Nobuo Harima
Title: Vice President
THE SUMITOMO TRUST & BANKING CO., LTD.
NY BRANCH,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxxxxx X. Xxxxx
The Sumitomo Trust & Banking Co., Ltd.
NY Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
SUNTRUST BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
Notice Address:
Attention: Xxxxx Xxxxxxxxxx
SunTrust Bank
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxx
Bank of New York
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
JPMORGAN CHASE BANK
(formerly known as the Chase Manhattan Bank),
as a Lender
By: /s/ Xxxxxxx Lancia
-----------------------------------------------
Name: Xxxxxxx Lancia
Title: Vice President
Notice Address:
Attention: Xxxxxxx Lancia
JPMorgan Chase Bank
000 Xxxxxxx Xxxxxx
Special Loan - 9
Xxx Xxxx, XX 00000
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Manager Credit Administration
Notice Address:
Attention: Xxxx X. Xxxxx
Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
Recovery Management
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Director
Recovery Management
Notice Address:
Attention: Xxxxx Xxxxxx
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH,
as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx III
-----------------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Associate Director
Notice Address:
Attention: Xxxxxx X. Xxxxx III
Westdeutsche Landesbank Girozentrale
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
