Execution Copy
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AMENDED AND RESTATED
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
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Dated as of October 10, 2003
among
IESI CORPORATION (the "Parent")
and its Subsidiaries listed on Schedule 2 hereto
(collectively, the "Borrowers"),
THE LENDERS LISTED ON SCHEDULE 1 HERETO,
FLEET NATIONAL BANK, as Administrative Agent
and
LASALLE BANK NATIONAL ASSOCIATION, as Syndication Agent
with
FLEET SECURITIES, INC., as Arranger
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.........................................................1
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1.1. Definitions..........................................................................1
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1.2. Rules of Interpretation..............................................................23
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2. THE REVOLVING CREDIT FACILITY...................................................................24
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2.1. Commitment to Lend...................................................................24
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2.2. Increase in Total Revolving Credit Commitment........................................25
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2.3. Commitment Fee.......................................................................25
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2.4. Reduction of Total Revolving Credit Commitment.......................................26
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2.5. Evidence of Debt; Revolving Credit Notes.............................................26
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2.6. Interest on Revolving Credit Loans...................................................27
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2.7. Requests for Revolving Credit Loans..................................................28
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2.8. Conversion Options...................................................................28
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2.8.1. Conversion to Different Type of Revolving Credit Loan.....................28
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2.8.2. Continuation of Type of Revolving Credit Loan.............................28
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2.8.3. Eurodollar Rate Loans.....................................................29
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2.9. Funds for Revolving Credit Loans.....................................................29
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2.9.1. Funding Procedures........................................................29
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2.9.2. Advances by Administrative Agent..........................................29
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2.10. Swing Line Loans; Settlements.......................................................30
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2.11. Repayment of the Revolving Credit Loans.............................................32
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2.11.1. Maturity.................................................................32
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2.11.2. Mandatory Repayment of the Revolving Credit Loans........................33
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2.11.3. Optional Prepayment of the Revolving Credit Loans........................33
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3. THE TERM LOAN...................................................................................34
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3.1. Initial Funding......................................................................34
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3.2. Increase in Term Loan Amount.........................................................34
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3.3. Evidence of Debt; The Term Notes.....................................................34
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3.4. Schedule of Installment Payments of Principal of Term Loan...........................35
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3.5. Optional Prepayment of Term Loan.....................................................36
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3.6. Mandatory Prepayments of the Term Loan...............................................36
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3.6.1. Asset Sales...............................................................36
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3.6.2. Debt Issuance.............................................................37
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3.6.3. Equity Issuance...........................................................37
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3.6.4. Excess Operating Cash Flow................................................37
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3.6.5. Payment Provisions........................................................37
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3.7. Interest on Term Loan................................................................38
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3.7.1. Interest Rates............................................................38
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3.7.2. Notification by Borrowers.................................................38
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3.7.3. Amounts, etc..............................................................38
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4. LETTERS OF CREDIT...............................................................................39
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4.1. Letter of Credit Commitments.........................................................39
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4.1.1. Commitment to Issue Letters of Credit.....................................39
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4.1.2. Letter of Credit Applications.............................................39
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4.1.3. Terms of Letters of Credit................................................39
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4.1.4. Reimbursement Obligations of Revolving Credit Lenders.....................40
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4.1.5. Participations of Revolving Credit Lenders................................40
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4.2. Reimbursement Obligation of the Borrowers............................................40
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4.3. Letter of Credit Payments............................................................41
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4.4. Obligations Absolute.................................................................42
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4.5. Reliance by Issuer...................................................................42
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4.6. Letter of Credit Fee.................................................................43
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5. CERTAIN GENERAL PROVISIONS......................................................................43
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5.1. Fees.................................................................................43
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5.2. Funds for Payments...................................................................43
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5.2.1. Payments to Administrative Agent..........................................43
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5.2.2. No Offset, etc............................................................44
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5.2.3. Non-U.S. Lenders..........................................................44
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5.3. Computations.........................................................................45
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5.4. Inability to Determine Eurodollar Rate...............................................45
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5.5. Illegality...........................................................................46
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5.6. Additional Costs, etc................................................................46
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5.7. Capital Adequacy.....................................................................47
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5.8. Certificate..........................................................................48
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5.9. Indemnity............................................................................48
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5.10. Default Interest....................................................................48
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5.11. Concerning Joint and Several Liability of the Borrowers.............................49
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ss.5.12. Interest Limitation.................................................................52
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6. COLLATERAL SECURITY.............................................................................52
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7. REPRESENTATIONS AND WARRANTIES..................................................................52
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7.1. Corporate Authority..................................................................52
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7.1.1. Incorporation; Good Standing..............................................53
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7.1.2. Authorization.............................................................53
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7.1.3. Enforceability............................................................53
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7.2. Governmental Approvals...............................................................53
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7.3. Title to Properties; Leases..........................................................53
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7.4. Financial Statements and Projections.................................................53
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7.4.1. Fiscal Year...............................................................54
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7.4.2. Financial Statements......................................................54
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7.4.3. Solvency..................................................................54
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7.5. No Material Adverse Changes, etc.....................................................54
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7.6. Franchises, Patents, Copyrights, etc.................................................54
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7.7. Litigation...........................................................................54
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7.8. No Materially Adverse Contracts, etc.................................................54
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7.9. Compliance with Other Instruments, Laws, etc.........................................55
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7.10. Tax Status..........................................................................55
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7.11. No Event of Default.................................................................55
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7.12. Holding Company and Investment Company Acts.........................................55
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7.13. Absence of Financing Statements, etc................................................55
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7.14. Perfection of Security Interest.....................................................55
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7.15. Certain Transactions................................................................56
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7.16. Employee Benefit Plans..............................................................56
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7.16.1. In General...............................................................56
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7.16.2. Terminability of Welfare Plans...........................................56
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7.16.3. Guaranteed Pension Plans.................................................56
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7.16.4. Multiemployer Plans......................................................57
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7.17. Use of Proceeds.....................................................................57
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7.17.1. General..................................................................57
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7.17.2. Regulations U and X......................................................57
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7.17.3. Ineligible Securities....................................................57
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7.18. Environmental Compliance............................................................58
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7.19. Subsidiaries, etc...................................................................59
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7.20. Disclosure..........................................................................59
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7.21. Capitalization......................................................................59
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7.22. Foreign Assets Control Regulations, Etc.............................................60
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7.23. Obligations Constitute "Senior Indebtedness"........................................60
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7.24. Guarantees of De Minimis Subsidiaries...............................................60
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8. AFFIRMATIVE COVENANTS...........................................................................61
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8.1. Punctual Payment.....................................................................61
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8.2. Maintenance of Office................................................................61
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8.3. Records and Accounts.................................................................61
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8.4. Financial Statements, Certificates and Information...................................61
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8.5. Notices..............................................................................63
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8.5.1. Defaults..................................................................63
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8.5.2. Environmental Events......................................................63
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8.5.3. Notification of Claim against Collateral..................................64
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8.5.4. Notice of Litigation and Judgments........................................64
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8.5.5 . Notices Concerning Tax Treatment..........................................64
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8.6. Legal Existence; Maintenance of Properties...........................................64
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8.7. Insurance............................................................................65
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8.8. Taxes................................................................................65
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8.9. Inspection of Properties and Books, etc..............................................65
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8.9.1. General...................................................................65
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8.9.2. Communications with Accountants...........................................65
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8.10. Compliance with Laws, Contracts, Licenses, and Permits..............................66
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8.11. Employee Benefit Plans..............................................................66
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8.12. Use of Proceeds.....................................................................66
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8.13. Interest Rate Protection............................................................66
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8.14. New Borrowers.......................................................................67
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8.15. Subsidiaries........................................................................67
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8.16. Closure and Post Closure Liabilities................................................67
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8.17. Further Assurances..................................................................67
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8.18. Environmental Indemnification.......................................................67
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8.19. Seneca Xxxxxxx Financials...........................................................68
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9. CERTAIN NEGATIVE COVENANTS......................................................................68
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9.1. Restrictions on Indebtedness. ......................................................68
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9.2. Restrictions on Liens................................................................69
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9.3. Restrictions on Investments..........................................................71
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9.4. Restricted Payments; Amendments to Documents.........................................72
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9.5. Merger, Consolidation and Disposition of Assets......................................73
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9.5.1. Mergers and Acquisitions..................................................73
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9.5.2. Disposition of Assets.....................................................74
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9.6. Sale and Leaseback...................................................................74
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9.7. Subordinated Debt....................................................................74
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9.8. Employee Benefit Plans...............................................................75
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9.9. Business Activities..................................................................76
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9.10. Fiscal Year.........................................................................76
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9.11. Transactions with Affiliates........................................................76
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9.12. New Franchise Agreements............................................................76
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10. FINANCIAL COVENANTS............................................................................76
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10.1. Leverage Ratio......................................................................76
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10.2. Senior Leverage Ratio...............................................................76
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10.3. Interest Coverage...................................................................76
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10.4. Consolidated Net Worth..............................................................77
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10.5. Capital Expenditures................................................................77
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11. CLOSING CONDITIONS.............................................................................77
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11.1. Loan Documents......................................................................77
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11.2. Certified Copies of Governing Documents.............................................77
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11.3. Corporate or Other Action...........................................................77
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11.4. Incumbency Certificate..............................................................78
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11.5. Validity of Liens...................................................................78
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11.6. Perfection Certificates and UCC Search Results......................................78
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11.7. Certificates of Insurance...........................................................78
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11.8. Leverage Ratio and Senior Leverage Ratio............................................78
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11.9. Receipt of the Preferred Stock Proceeds.............................................78
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11.10. Subordinated Debt..................................................................79
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11.11. Financial Statements and Projections...............................................79
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11.12. Projections. .....................................................................79
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11.13. Opinions of Counsel................................................................79
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11.14. Environmental Permit Certificate...................................................80
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11.15. Seneca Xxxxxxx Acquisition.........................................................80
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11.16. Environmental Assessment of Seneca Xxxxxxx Landfill................................80
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11.17. Payment of Fees....................................................................80
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11.18. Payoff.............................................................................80
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11.19. Patriot Act........................................................................80
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12. CONDITIONS TO ALL BORROWINGS...................................................................80
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12.1. Representations True; No Event of Default...........................................80
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12.2. No Legal Impediment.................................................................81
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12.3. Proceedings and Documents...........................................................81
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12.4. Subordinated Debt Compliance Certificate............................................81
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13. EVENTS OF DEFAULT; ACCELERATION; ETC...........................................................81
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13.1. Events of Default and Acceleration..................................................81
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13.2. Termination of Commitments..........................................................84
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13.3. Remedies............................................................................85
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13.4. Distribution of Collateral Proceeds.................................................85
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14. THE AGENTS.....................................................................................86
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14.1. Authorization.......................................................................86
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14.2. Employees and Administrative Agent..................................................87
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14.3. No Liability........................................................................87
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14.4. No Representations..................................................................87
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14.4.1. General..................................................................87
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14.4.2. Closing Documentation, etc...............................................87
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14.5. Payments............................................................................88
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14.5.1. Payments to Administrative Agent.........................................88
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14.5.2. Distribution by Administrative Agent.....................................88
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14.5.3. Delinquent Lenders.......................................................88
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14.6. Holders of Notes....................................................................89
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14.7. Indemnity...........................................................................89
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14.8. Administrative Agent as Lender......................................................89
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14.9. Resignation.........................................................................89
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14.10. Notification of Defaults and Events of Default.....................................90
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14.11. Duties in the Case of Enforcement..................................................90
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14.12. Administrative Agent May File Proofs of Claim......................................90
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14.13. Duties of Syndication Agent........................................................91
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15. ASSIGNMENT AND PARTICIPATION...................................................................91
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15.1. General Conditions..................................................................91
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15.2 . Assignments.........................................................................92
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15.3. Register............................................................................93
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15.4. Participations......................................................................93
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15.5. Payments to Participants............................................................93
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15.6. Miscellaneous Assignment Provisions.................................................94
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15.7. Assignee or Participant Affiliated with the Borrowers...............................94
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15.8. Special Purpose Funding Vehicle.....................................................94
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16. PROVISIONS OF GENERAL APPLICATIONS.............................................................95
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16.1. Setoff..............................................................................95
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16.2. Expenses............................................................................96
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16.3. Indemnification.....................................................................97
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16.4. Treatment of Certain Confidential Information.......................................97
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16.4.1. Confidentiality..........................................................97
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16.4.2. Prior Notification.......................................................98
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16.4.3. Other....................................................................99
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16.5. Survival of Covenants, Etc..........................................................99
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16.6. Notices.............................................................................99
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16.7. Governing Law.....................................................................100
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16.8. Headings............................................................................101
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16.9. Counterparts........................................................................101
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16.10. Entire Agreement, Etc..............................................................101
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16.11. Waiver of Jury Trial...............................................................101
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16.12. Consents, Amendments, Waivers, Etc.................................................101
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16.13. Borrowers' Representative..........................................................103
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16.14. Severability.......................................................................103
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17. PARI PASSU TREATMENT...........................................................................103
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18. PRIOR CREDIT AGREEMENT.........................................................................104
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Exhibits
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Exhibit A Form of Loan Request
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Exhibit B Form of Swingline Note
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Exhibit C Form of Compliance Certificate
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Exhibit D Form of Joinder Agreement
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Exhibit E Form of Environmental Permit Certificate
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Exhibit F Form of Assignment and Acceptance
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Exhibit G Form(s) of Subordinated Debt
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Exhibit H Form of Subordinated Debt Compliance Certificate
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Schedules
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Schedule 1 Lenders and Commitments
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Schedule 2 Subsidiaries of the Parent
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Schedule 4.1.1 Existing Letters of Credit
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Schedule 7.3 Title to Properties; Leases
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Schedule 7.7 Litigation
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Schedule 7.15 Certain Transactions
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Schedule 7.18 Environmental Compliance
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Schedule 7.21 Capitalization
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Schedule 8.7 Insurance
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Schedule 9.1 Existing Indebtedness
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Schedule 9.2 Existing Liens
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Schedule 9.3 Existing Investments
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Schedule 9.11 Transactions With Affiliates
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AMENDED AND RESTATED
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
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This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is
made as of October 10, 2003, by and among (a) IESI CORPORATION, a Delaware
corporation (the "Parent"), and the subsidiaries of the Parent (other than the
De Minimis Subsidiaries) identified on Schedule 2 hereto (the "Subsidiaries,"
and collectively with the Parent, the "Borrowers"), (b) the lenders listed on
Schedule 1 hereto (collectively, the "Lenders"), (c) FLEET NATIONAL BANK
("Fleet"), as administrative agent for itself and the other Lenders (in such
capacity, the "Administrative Agent") and (d) LASALLE BANK NATIONAL ASSOCIATION
as syndication agent (in such capacity, the "Syndication Agent").
WHEREAS, pursuant to a Fourth Amended and Restated Revolving Credit
Agreement, dated as of September 14, 2001 (as amended and in effect from time to
time, the "Prior Credit Agreement"), by and among the Borrowers, Fleet and the
other lenders identified on Schedule 1 thereto as Banks (the "Prior Banks"), and
Fleet as the Administrative Agent thereunder, the Prior Banks made revolving
credit loans and other extensions of credit to the Borrowers for general
corporate and working capital purposes, capital expenditures and to fund certain
acquisitions permitted thereunder; and
WHEREAS, the Borrowers have requested, among other things, to amend and
restate the Prior Credit Agreement on the terms and conditions set forth herein
and the Lenders and the Administrative Agent are willing to amend and restate
the Prior Credit Agreement on the terms and conditions set forth herein;
NOW THEREFORE, the Borrowers, the Lenders and the Administrative Agent
agree that, as of the Closing Date, the Prior Credit Agreement is hereby amended
and restated in its entirety as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accountants. Ernst & Young, LLP or such other independent certified
public accountants satisfactory to the Administrative Agent.
Acknowledgement and Consent. The Acknowledgment and Consent, dated as
of September 14, 2001 and as the same may be amended and in effect from time to
time, by and among certain Borrowers and the Administrative Agent and in form
and substance satisfactory to the Administrative Agent.
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Adjustment Date. The first Business Day immediately following the date
on which a Compliance Certificate is to be delivered by the Borrowers pursuant
to ss.8.4(d).
Administrative Agent. Fleet National Bank, acting as administrative
agent for the Lenders, and each other Person appointed as the successor
Administrative Agent in accordance with ss.14.9.
Administrative Agent Fee. The fee payable by the Borrowers to the
Administrative Agent in consideration of its acting as Administrative Agent for
the Lenders, on terms agreed to by the Borrowers and the Administrative Agent.
Administrative Agent's Office. The Administrative Agent's office
located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other
location as the Administrative Agent may designate from time to time.
Administrative Agent's Special Counsel. Xxxxxxx XxXxxxxxx LLP or such
other counsel as may be approved by the Administrative Agent.
Administrative Questionnaire. An Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate. Any Person that would be considered to be an affiliate of
the Borrowers or any Lender, as the case may be, under Rule 144(a) of the Rules
and Regulations of the Securities and Exchange Commission, as in effect on the
date hereof, if the Borrowers or such Lender, as the case may be, were issuing
securities.
Applicable Commitment Fee Rate. As set forth in the table in the
definition of "Applicable Margin" under the heading "Applicable Commitment Fee
Rate".
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Leverage Ratio, as determined for the Reference
Period of the Borrowers ending on the fiscal quarter ended immediately prior to
the applicable Rate Adjustment Period:
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------------ ---------------- ------------------------------ -------------------------------- ---------------------
REVOLVING CREDIT LOANS TERM LOAN
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
EURODOLLAR RATE EURODOLLAR RATE APPLICABLE
LEVEL LEVERAGE RATIO BASE RATE LOANS BASE RATE LOANS COMMITMENT FEE RATE
LOANS LOANS
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
I => 4.00:1 1.25% 3.25% 1.00% 3.00% 0.500%
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
II => 3.50:1 and 1.00% 3.00% 1.00% 3.00% 0.500%
< 4.00:1
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
III => 3.00:1 and 0.75% 2.75% 1.00% 3.00% 0.500%
< 3.50:1
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
IV => 2.50:1 and 0.50% 2.50% 1.00% 3.00% 0.500%
< 3.00:1
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
V < 2.50:1 0.25% 2.25% 1.00% 3.00% 0.375%
------------ ---------------- ----------- ------------------ ------------- ------------------ ---------------------
Notwithstanding the foregoing, (i) for the Loans outstanding, the
Letter of Credit Fees and the Commitment Fee payable during the period
commencing on the Closing Date through the delivery of the Compliance
Certificate for the second full fiscal quarter following the Closing Date, the
Applicable Margin shall be the Applicable Margin set forth in Level I in the
table above, and (ii) if the Borrowers fail to deliver any Compliance
Certificate pursuant to ss.8.4(d) hereof then, for the period commencing on the
next Adjustment Date to occur subsequent to such failure through the date
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the highest Applicable Margin set
forth in the table above.
Applicable Pension Legislation. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrowers.
Approved Fund. Any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
Arranger. Fleet Securities, Inc.
Assignment and Acceptance. An assignment and acceptance entered into by
a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by ss.15.2), and accepted by the Administrative Agent, in
substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
Balance Sheet Date. December 31, 2002.
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Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by Fleet as its "prime rate", such rate being a
reference rate and not necessarily representing the lowest or best rate being
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charged to any customer, and (b) one-half of one percent (0.5%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent. Changes in the Base Rate resulting from any changes in
Fleet's "prime rate" shall take place immediately without notice or demand of
any kind.
Base Rate Loans. Revolving Credit Loans and all or any portion of the
Term Loan bearing interest calculated by reference to the Base Rate.
Benefit Amount. Seess.5.11(f).
Bethlehem Adjustment Amount. For each fiscal quarter referenced in the
table below, the amount set forth opposite such fiscal quarter in such table:
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Fiscal Quarter Ending Amount
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9/30/03 $2,400,000
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12/31/03 $1,200,000
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Borrowers. As defined in the preamble.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated over
a useful life of twelve (12) months or less in accordance with GAAP or (b) any
item obtained through an acquisition permitted by ss.9.5.1.
Capital Expenditures. Amounts paid or Indebtedness incurred by any
Person in connection with (a) the purchase or lease by such Person of Capital
Assets that would be required to be capitalized and shown on the balance sheet
of such Person in accordance with GAAP or (b) the lease of any assets by such
Person as lessee under any Synthetic Lease to the extent that such assets would
have been Capital Assets had the Synthetic Lease been treated for accounting
purposes as a Capitalized Lease, but excluding capital expenditures required to
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service any Franchise Agreement which are incurred within a sliding four month
period prior to or after commencement of service for such Franchise Agreement.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
Capitalized Leases. Leases under which any Borrower 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 ss.7.18(a).
CFO. Chief Financial Officer.
Change of Control. An event or series of events by which any Person or
group of Persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act), directly or indirectly, of twenty percent (20%) or more of the
outstanding shares of Capital Stock of the Parent; or, during any period of
twelve (12) consecutive calendar months, individuals who were directors of the
Parent on the first day of such period shall cease to constitute a majority of
the board of directors of the Parent or, the occurrence of any 'Change of
Control' under and as defined in the 2002 Subordinated Note Indenture.
Closing Date. The first date on which the conditions set forth in ss.11
have been satisfied and any Revolving Credit Loans and the initial Term Loan are
to be made or any Letter of Credit is to be issued hereunder.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Borrowers
that are or are intended to be subject to the Liens created by the Security
Documents.
Commitment Fee. Seess.2.3.
Compliance Certificate. Seess.8.4(d).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrowers,
consolidated in accordance with GAAP.
Consolidated Adjusted Net Income (or Deficit). For any period, the
Consolidated Net Income (or Deficit) of the Borrowers determined in accordance
with GAAP, plus to the extent deducted and without duplication, (a) impairment
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charges for the closing of the Borrowers' asbestos transfer station in an amount
not to exceed $5,000,000, (b) FAS 143 historic, non-cash accounting adjustments
in an amount not to exceed $2,000,000, (c) the Bethlehem Adjustment Amount
applicable for such fiscal quarter, and (d) the Seneca Xxxxxxx Adjustment Amount
applicable for such fiscal quarter.
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any Reference Period (without duplication), the
Consolidated Adjusted Net Income of the Borrowers plus (a) interest expense for
such period, plus (b) income taxes for such period, plus (c) depreciation
expense and amortization expense for such period, to the extent that each was
deducted in determining Consolidated Adjusted Net Income (or Deficit),
determined in accordance with GAAP. For all purposes other than calculating the
covenant set forth in ss.10.3, the Borrowers may include in EBITDA (i) with the
consent of the Administrative Agent, the pro forma projected EBITDA from a new
contract with a municipality for exclusive waste management services which first
became effective within the twelve (12) month period prior to the date of such
calculation, such projections to include the period beginning on the day after
the date of such calculation and ending on the date which is one year following
the date on which such contract first became effective on terms and conditions
satisfactory to the Administrative Agent and (ii) the EBITDA for the prior
twelve (12) months of companies acquired by the Borrowers during the respective
reporting period (without duplication with respect to the adjustments set forth
above) only if (A) the financial statements of such acquired Borrowers have been
audited for the period sought to be included by an independent accounting firm
satisfactory to the Administrative Agent, or (B) the Administrative Agent
consents to such inclusion after being furnished with other acceptable financial
statements. Such acquired EBITDA may be further adjusted to add-back
non-recurring private company expenses which are discontinued upon acquisition
(such as owner's compensation), as approved by the Administrative Agent.
Simultaneously with the delivery of the financial statements referred to in (A)
and (B) above, the CFO of the Parent shall deliver to the Administrative Agent a
Compliance Certificate and appropriate documentation certifying the historical
operating results, adjustments and balance sheet of the acquired company.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrowers, after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP.
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includable in the
computations of Consolidated Net Worth, any subscriptions receivable.
Consolidated Senior Funded Debt. As at any date of determination, an
amount equal to Consolidated Total Funded Debt minus Subordinated Debt.
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Consolidated Total Assets. The sum of all assets ("consolidated balance
sheet assets") of the Borrowers determined on a consolidated basis in accordance
with GAAP.
Consolidated Total Funded Debt. With respect to the Borrowers, the sum,
without duplication, of (a) the aggregate amount of Indebtedness of the
Borrowers on a consolidated basis, relating to (i) the borrowing of money or the
obtaining of credit, including the issuance of notes, bonds, debentures or
similar debt instruments, (ii) in respect of any Capitalized Leases and
Synthetic Leases, (iii) the deferred purchase price of assets and companies
(typically known as holdbacks) other than short-term trade credit incurred in
the ordinary course of business, and (iv) any unpaid reimbursement obligation
under letters of credit outstanding, but excluding any contingent obligation
with respect to letters of credit outstanding; plus (b) Indebtedness of the type
referred to in clause (a) of another Person guaranteed by the Borrowers.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrowers during such
period on all Indebtedness of the Borrowers outstanding during all or any part
of such period, whether such interest was or is required to be reflected as an
item of expense or capitalized, including payments consisting of interest in
respect of any Capitalized Lease or any Synthetic Lease, and including
commitment fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of money but excluding (a) the
non-cash amortization of debt issuance costs, (b) Series C Convertible Preferred
Stock non-cash dividends that are classified as interest under GAAP, (c) Series
D Convertible Preferred Stock non-cash dividends that are classified as interest
under GAAP and (d) Series E Convertible Preferred Stock non-cash dividends that
are classified as interest under GAAP.
Consolidated Total Liabilities. All liabilities of the Borrowers
determined on a consolidated basis in accordance with GAAP and classified as
such on the consolidated balance sheet of the Borrowers.
Consulting Engineer. An environmental consulting firm acceptable to the
Administrative Agent.
Conversion Request. A notice given by the Borrowers to the
Administrative Agent of the Borrowers' election to convert or continue a Loan in
accordance withss.2.8.
Credit Agreement. This Amended and Restated Revolving Credit and Term
Loan Agreement, including the Schedules and Exhibits hereto, as the same may be
amended, supplemented and otherwise modified and in effect from time to time.
Default. See ss.13.1.
Delinquent Lender. Seess.14.5.3.
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De Minimis Subsidiaries. Any Subsidiary whose assets, liabilities and
annual gross revenues do not, in each case, exceed $1,000,000; provided that the
aggregate assets, liabilities and annual gross revenues of all such Subsidiaries
taken as a whole shall not exceed $2,000,000.
Disposal (or Disposed). See definition of "Release".
Distribution. (a) The declaration or payment of any dividend on or in
respect of any shares of any class of Capital Stock of any Borrower, other than
dividends payable solely in shares of common stock of such Borrower; (b) the
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of Capital Stock of any Borrower, directly or indirectly through a
Subsidiary of such Borrower or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose); (c) the
return of capital by any Borrower to its shareholders as such; or any other
distribution on or in respect of any shares of any class of Capital Stock of any
Borrower.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan or any Term
Loan is made or is to be made, and the date on which any Revolving Credit Loan
is converted or continued in accordance with ss.2.8 or all or any portion of the
Term Loan is converted or continued in accordance with ss.3.7.2.
EBITDA. See definition of "Consolidated Earnings Before Interest,
Taxes, Depreciation and Amortization".
Eligible Assignee. Any of (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and (ii) unless a Default or an Event
of Default has occurred and is continuing, the Borrowers (each such approval not
to be unreasonably withheld or delayed).
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. Seess.7.18(a).
EPA. See ss.7.18(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
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ERISA Affiliate. Any Person which is treated as a single employer with
the Borrowers under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any bank 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 Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the rate per annum for the
Administrative Agent (rounded upwards to the nearest 1/16 of one percent) at
which the Administrative Agent's Eurodollar Lending Office is offered Dollar
deposits two (2) Eurodollar Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange 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 to which such Interest Period applies, divided by
(b) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion of
the Term Loan bearing interest calculated by reference to the Eurodollar Rate.
Event of Default. Seess.13.1.
Excess Consolidated Operating Cash Flow. For the period (A) from
October 1, 2003 through December 31, 2003 and (B) of each fiscal year
thereafter, an amount equal to the sum of (a) Consolidated EBITDA plus or minus
(b) Net Working Capital Changes plus or minus (c) extraordinary cash items minus
(d) the sum of (i) to the extent not already deducted in the determination of
Consolidated EBITDA, Capital Expenditures made during such period to the extent
permitted by ss.10.4, plus (ii) cash purchase price of any acquisitions
permitted under ss.9.5 during such period, plus (iii) cash payments for all
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taxes paid during such period, plus (iv) cash payments of interest during such
period, plus (v) scheduled principal repayments of Indebtedness during such
period.
Fees. Collectively, the Commitment Fee, the Letter of Credit Fees, the
Administrative Agent Fee, and any other fees payable hereunder or under the
other Loan Documents.
Financial Affiliate. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by ss.4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
ss.1843).
Financial Letter of Credit. A letter of credit where the event which
triggers payment is financial, such as the failure to pay money, and not
performance-related, such as failure to ship a product or provide a service, as
set forth in greater detail in the letter dated March 30, 1995 from the Board of
Governors of the Federal Reserve System or in any applicable directive or letter
ruling of the Board of Governors of the Federal Reserve System issued subsequent
thereto.
Fleet. Fleet National Bank, a national banking association, in its
individual capacity.
Franchise Agreement. A contract providing for exclusive waste
management services between a municipality and a Borrower.
Fuel Derivatives Obligations. See 9.1(l).
Fund. Any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of business.
GAAP or generally accepted accounting principles. (a) When used in
ss.10, whether directly or indirectly through reference to a capitalized term
used therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect as of the Closing Date, and (b) when used in general,
other than as provided above, means principles that are (i) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, as in effect from time to time, and (ii) consistently
applied with past financial statements of the Borrowers adopting the same
principles, provided that in each case referred to in this definition of "GAAP"
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 GAAP) as to financial
statements in which such principles have been properly applied.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
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Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower 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.
Hazardous Substances. Seess.7.18(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including (i) secured
royalty payments and (ii) securities repurchase agreements, but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or which are being
contested in good faith),
(e) every obligation of such Person under any Capitalized
Lease or Synthetic Lease,
(f) all sales by such Person of (i) accounts or general
intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
(g) every obligation of such Person (an "equity related
purchase obligation") to purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock issued by such Person or any
rights measured by the value of such Capital Stock,
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(h) every obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement
or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices (a
"derivative contract"),
(i) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor and such terms are
enforceable under applicable law,
(j) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (a) through (i) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the
payment of such primary obligation, or (iii) to maintain working
capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to
pay such primary obligation, and
(k) any Indebtedness of such Person of a type described in any
of clauses (a) through (j) above which is 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 on (or
other right of recourse to or against) property owned or acquired by
such Person.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (A) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (B) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (C) any Synthetic Lease shall
be the stipulated loss value, termination value or other equivalent amount, (D)
any sale of receivables shall be the amount of unrecovered capital or principal
investment of the purchaser (other than the Borrowers) thereof, excluding
amounts representative of yield or interest earned on such investment, (E) any
derivative contract shall be the maximum amount of any termination or loss
payment required to be paid by such Person if such derivative contract were, at
the time of determination, to be terminated by reason of any event of default or
early termination event thereunder, whether or not such event of default or
early termination event has in fact occurred, (F) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price thereof
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inclusive of any accrued and unpaid dividends to be comprised in such redemption
or purchase price, and (G) any guaranty or other contingent liability referred
to in clause (j) shall be an amount equal to the stated or determinable amount
of the primary obligation in respect of which such guaranty or other contingent
obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. ss.24, Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of
the calendar quarter with respect to interest accrued during such calendar
quarter, including, without limitation, the calendar quarter which includes the
Drawdown Date of such Base Rate Loan; and (b) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (i) three (3) months or less, the last
day of such Interest Period and (ii) more than three (3) months, the date that
is three (3) months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or
any relevant portion of the Term 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 Borrowers in a Loan Request or as otherwise
required by the terms of this Credit Agreement (i) for any Base Rate Loan, the
last day of the calendar quarter; and (ii) for any Eurodollar Rate Loan, one
(1), two (2), three (3) or six (6) months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Revolving Credit Loan or all or such portion of the Term Loan and ending on
the last day of one of the periods set forth above, as selected by the Borrowers
in a Conversion Request; provided that all of the foregoing provisions relating
to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall be extended to the next succeeding
Eurodollar Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(B) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(C) if the Borrowers shall fail to give notice as provided in
ss.2.8, the Borrowers shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the
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continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date (if comprising a Revolving Credit
Loan) or the Term Loan Maturity Date (if comprising the Term Loan or a
portion thereof) shall end on the Revolving Credit Loan Maturity Date
or (as the case may be) the Term Loan Maturity Date.
Interim Balance Sheet Date. June 30, 2003.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock 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 Person. 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 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.
L/C Supported IRBs. Industrial revenue bonds or solid waste disposal
bonds issued by or at the request of the Borrowers which are backed by direct
pay Letters of Credit issued hereunder.
Lender Affiliate. With respect to any Lender, (a) an Affiliate of such
Lender or (b) any Approved Fund.
Lenders. Collectively, the Revolving Credit Lenders and the Term
Lenders.
Letter(s) of Credit. See ss.4.1.1.
Letter of Credit Application. Seess.4.1.1.
Letter of Credit Fee. Seess.4.6.
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Letter of Credit Participation. Seess.4.1.4.
Leverage Ratio. As at any date of determination, the ratio of (a)
Consolidated Total Funded Debt outstanding on such date to (b) EBITDA for the
Reference Period ending on such date.
Lien. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any Synthetic Lease, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC or comparable
law of any jurisdiction).
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, and the Security Documents.
Loan Request. Seess.2.7.
Loans. Collectively, the Revolving Credit Loans, the Swing Line Loans
and the Term Loan.
Material Acquisition. Any acquisition or series of related acquisitions
permitted under ss.9.5.1 for which the aggregate cash consideration (including
the aggregate amount of all Indebtedness assumed or incurred) exceeds
$5,000,000.
Material Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a material adverse effect on the business, properties,
prospects, condition (financial or otherwise), assets, operations or
income of the Borrowers;
(b) an adverse effect on the ability of any of the Borrowers
to perform any of its respective Obligations under any of the Loan
Documents to which such Borrower is a party; or
(c) any impairment of the validity, binding effect or
enforceability of this Credit Agreement or any of the other Loan
Documents, any impairment of the rights, remedies or benefits available
to the Administrative Agent or any Lender under any Loan Document or
any impairment of the attachment, perfection or priority of any Lien of
the Administrative Agent under the Security Documents.
In determining whether any individual event could reasonably be expected to
result in a Material Adverse Effect, notwithstanding that such event does not of
itself have such effect, a Material Adverse Effect shall be deemed to have
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occurred if the cumulative effect of such event and all other then existing
events could reasonably be expected to result in a Material Adverse Effect.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Membership Interest Pledge Agreement. The Membership Interest Pledge
Agreement, dated as of October 10, 2003 and as the same may be amended and in
effect from time to time, by and among certain limited liability company
Subsidiaries and the Administrative Agent.
Xxxxx'x. Xxxxx'x Investors Services, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate.
Net Cash Proceeds. With respect to any issuance of Subordinated Debt or
equity, the excess of the gross cash proceeds received by such Person from such
issuance after deduction of reasonable and customary transaction expenses
(including without limitation, underwriting discounts and commissions) actually
incurred in connection with such issuance.
Net Cash Sales Proceeds. The net cash proceeds received by a Person in
respect of any disposition of assets, less the sum of (a) all reasonable
out-of-pocket fees, commissions and other reasonably and customary direct
expenses actually incurred in connection with such disposition of assets,
including the amount of any transfer or documentary taxes required to be paid by
such Person in connection with such disposition of assets, and (b) the aggregate
amount of cash so received by such Person which is required to be used to retire
(in whole or in part) any Indebtedness (other than under the Loan Documents) of
such Person permitted by this Credit Agreement that was secured by a lien or
security interest permitted by this Credit Agreement having priority over the
liens and security interests (if any) of the Administrative Agent (for the
benefit of the Administrative Agent and the Lenders) with respect to such assets
transferred and which is required to be repaid in whole or in part (which
repayment, in the case of any other revolving credit arrangement or multiple
advance arrangement, reduces the commitment thereunder) in connection with such
disposition of assets.
Net Working Capital Changes. With respect to the Borrowers, for any
fiscal period and without duplication, the difference (expressed as a positive
or a negative number) of (a) the sum of (i) both billed and unbilled accounts
receivable, plus (ii) inventory of the Borrowers and other current assets
considered part of working capital in accordance with GAAP, minus (iii) current
accounts payable of the Borrowers, minus (iv) current accruals and accretions
(exclusive of interest accruals and accretions) of the Borrowers, in each case,
for such fiscal period, minus (b) the sum of (i) both billed and unbilled
accounts receivable, plus, (ii) inventory of the Borrowers and other current
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assets considered part of working capital in accordance with GAAP, minus (iii)
current accounts payable of the Borrowers, minus (iv) current accruals and
accretions (exclusive of interest accruals and accretions) of the Borrowers, in
each case, for the fiscal period of equal duration immediately prior to such
fiscal period.
Non-U.S. Lender. See ss.5.2.3.
Notes. The Revolving Credit Notes, the Term Notes and the Swing Line
Note.
Obligations. All Indebtedness, obligations and liabilities of any of
the Borrowers to any of the Lenders and the Administrative Agent, individually
or collectively, existing on the date of this Credit 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, arising or incurred under this
Credit Agreement or any of the other Loan Documents or Fuel Derivatives
Obligations or under any Swap Contract between the Borrowers and any Lender (or
affiliate thereof) or in respect of any of the Loans made or Reimbursement
Obligations incurred, Letter of Credit Application, Letter of Credit or other
instruments at any time evidencing any thereof.
Omnibus Amendment. Omnibus Amendment dated as of the Closing Date among
the Administrative Agent and the Borrowers.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Parent. As defined in the preamble.
Participant. See ss.15.5.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreement.
Performance Letter of Credit. A letter of credit where the event which
triggers payment is performance-related, such as failure to ship a product or
provide a service, and not a Financial Letter of Credit.
Permitted Liens. Liens permitted byss.9.2.
Person. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental Authority.
-18-
Pledge Agreement. The Amended and Restated Collateral Assignment of
Partnership Interests, dated as of September 14, 2001 and as the same may be
amended and in effect from time to time, by and among certain Borrowers and the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent.
Prior Banks. As defined in the preamble hereto.
Prior Credit Agreement. As defined in the preamble hereto.
RCRA. See ss.7.18(a).
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by any Borrower.
Record. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
Reference Period. As of any date of determination, the period of four
(4) consecutive fiscal quarters of the Borrowers ending on such date, or if such
date is not a fiscal quarter end date, the period of four (4) consecutive fiscal
quarters most recently ended (in each case treated as a single accounting
period).
Register. See ss.15.3.
Reimbursement Obligation. The Borrowers' obligation to reimburse the
Administrative Agent and the Revolving Credit Lenders on account of any drawing
under any Letter of Credit as provided in ss.4.2.
Related Parties. With respect to any specified Person, such Person's
Affiliates and their respective directors, officers, employees, agents, trustees
and advisors of such Person and such Person's Affiliates.
Release. As such term is defined in the CERCLA and the term "Disposal"
(or "Disposed") shall have the meaning specified in 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 a state wherein the property lies
establishes a meaning for "Release" or "Disposal" which is broader than
specified in either CERCLA or RCRA, such broader meaning shall apply.
Required Lenders. As of any date, any combination of Lenders the sum of
whose aggregate Revolving Credit Commitments and outstanding principal amount of
the Term Loan constitute at least fifty-one percent (51%) of the sum of the
Total Revolving Credit Commitment and the total outstanding principal amount of
the Term Loan or, if the Total Revolving Credit Commitment has been terminated
or if the Revolving Credit Loan Maturity Date has occurred, any combination of
Lenders holding at least fifty-one percent (51%) of the total outstanding
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principal amount of the Loans and the Maximum Drawing Amount of outstanding
Letters of Credit on such date.
Restricted Payment. In relation to the Borrowers and the De Minimis
Subsidiaries, any (a) Distribution, (b) payment or prepayment by any Borrower or
any Subsidiary to (i) such Borrowers' or such Subsidiaries shareholders (or
other equity holders), in each case, other than to another Borrower, or (ii) to
any Affiliate of such Borrower or such Subsidiary or any Affiliate of such
Borrower's or such Subsidiary's shareholders (or other equity holders), in each
case, other than to another Borrower or (c) derivatives or other transactions
with any financial institution, commodities or stock exchange or clearinghouse
(a "Derivatives Counterparty") obligating such Borrower or such Subsidiary to
make payments to such Derivatives Counterparty as a result of any change in
market value of any capital stock of such Borrower or such Subsidiary.
Revolving Credit Commitment. With respect to each Revolving Credit
Lender, the amount set forth on Schedule 1 hereto as the amount of such
Revolving Credit Lender's commitment to make Revolving Credit Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrowers, as the same may be increased or reduced from time to
time in accordance with this Credit Agreement; or if such commitment is
terminated pursuant to the provisions hereof, zero.
Revolving Credit Commitment Percentage. With respect to each Revolving
Credit Lender, the percentage set forth on Schedule 1 hereto as such Revolving
Credit Lender's percentage of the Total Revolving Credit Commitment.
Revolving Credit Lenders. Each of the Lenders with a Revolving Credit
Commitment as set forth on Schedule 1 hereto, and any other Person who becomes
an assignee of any rights and obligations of a Revolving Credit Lender pursuant
to ss.15.
Revolving Credit Loan Maturity Date. September 30, 2008.
Revolving Credit Loans. Revolving credit loans made or to be made by
the Revolving Credit Lenders to the Borrowers pursuant to ss.2.
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
Revolving Credit Notes. Seess.2.5.2.
XXXX. See ss.7.18(a).
Security Agreement. The Fourth Amended and Restated Security Agreement,
dated as of September 14, 2001 and as the same may be amended and in effect from
time to time, by and among the Borrowers and the Administrative Agent and in
form and substance satisfactory to the Administrative Agent.
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Security Documents. The Security Agreement, the Stock Pledge Agreement,
the Pledge Agreement, the Membership Interest Pledge Agreement, the
Acknowledgment and Consent, the Omnibus Amendment and all other instruments and
documents, including without limitation Uniform Commercial Code financing
statements, required to be executed or delivered pursuant to any Security
Document.
Seneca Xxxxxxx. Seneca Xxxxxxx, Inc., a New York corporation.
Seneca Xxxxxxx Acquisition. The Parent's purchase of one hundred
percent (100%) of the outstanding common stock of Seneca Xxxxxxx as described in
the Stock Purchase Agreement dated as of May 22, 2003 among IESI NY Corporation,
Xxxxx Xxxxxx, Seneca Xxxxxxx, Inc. and Macedon Homes Incorporated.
Seneca Xxxxxxx Adjustment Amount. For each fiscal quarter referenced in
the table below, the amount set forth opposite such fiscal quarter in such
table:
---------------------------------------------- ---------------------------------------------
Fiscal Quarter Ending Amount
---------------------------------------------- ---------------------------------------------
12/31/03 $27,225,000
---------------------------------------------- ---------------------------------------------
3/31/04 $18,475,000
---------------------------------------------- ---------------------------------------------
6/30/04 $9,725,000
---------------------------------------------- ---------------------------------------------
9/30/04 $975,000
---------------------------------------------- ---------------------------------------------
Senior Leverage Ratio. As at any date of determination, the ratio of
(a) Consolidated Senior Funded Debt outstanding on such date to (b) EBITDA for
the Reference Period ending on such date.
Series C Convertible Preferred Stock. The 55,000 shares of Series C
Convertible Preferred Stock of the Parent sold in June and July 1999 in a
private placement to four (4) existing stockholders, or affiliates thereof, of
the Parent for aggregate gross proceeds of $55,000,000.
Series D Convertible Preferred Stock. The 55,000 shares of Series D
Convertible Preferred Stock of the Parent sold in September 2001 in a private
placement to four (4) existing stockholders of the Parent for aggregate gross
proceeds of $55,000,000.
Series E Convertible Preferred Stock. The 55,000 shares of Series E
Convertible Preferred Stock of the Parent sold (a) on or before the Closing Date
in a private placement for minimum net proceeds of $47,000,000 and (b) following
the Closing Date in a private placement for minimum net proceeds of $1,000,000.
-21- Settlement. The making or receiving of payments, in immediately
available funds, by the Revolving Credit Lenders to or from the Administrative
Agent in accordance with ss.2.10 hereof to the extent necessary to cause each
such Revolving Credit Lender's actual share of the outstanding amount of the
Swing Line Loans to be equal to such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the outstanding amount of such Swing Line Loans, in any
case when, prior to such action, the actual share is not so equal.
Settlement Amount. Seess.2.10(b).
Settlement Date. Seess.2.10(b).
Settling Lender. Seess.2.10(b).
S&P. Standard & Poor's Ratings Group.
Stock Pledge Agreement. The Fourth Amended and Restated Stock Pledge
Agreement, dated as of September 14, 2001 and as the same may be amended and in
effect from time to time, by and among certain of the Borrowers and the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent.
Subordinated Debt. (a) Unsecured Indebtedness of the Borrowers with
respect to promissory notes issued by any Borrower to a seller in connection
with an acquisition permitted by ss.9.5.1 hereof that is expressly subordinated
and made junior to the payment and performance in full of the Obligations, and
evidenced as such by a written instrument provided to the Administrative Agent
containing subordination provisions in substantially the form of Exhibit G or
other terms reasonably acceptable to the Administrative Agent and the Required
Lenders, (b) unsecured Indebtedness of the Parent (and subordinated unsecured
guarantees thereof by its Subsidiaries) issued or to be issued pursuant to a
debt offering or offerings, either pursuant to a public offering of debt
securities or a private placement of debt securities; provided that such
Subordinated Debt shall (i) include terms no less favorable to the Lenders than
terms of "market" senior subordinated unsecured debt, (ii) be unsecured, (iii)
mature and require no principal repayments prior to six months after the later
of the Revolving Credit Loan Maturity Date or the Term Loan Maturity Date, (iv)
have a yield not to exceed twelve percent (12%) per year and (v) be on terms and
conditions acceptable to the Administrative Agent, and (c) unsecured
Indebtedness of the Parent incurred pursuant to, and in accordance with, the
2002 Subordinated Note Indenture and the 2002 Subordinated Notes, and the
unsecured guarantees thereof by the Subsidiaries of the Parent.
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 (by number
of votes) of the outstanding Voting Stock.
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Swap Contracts. Any agreement (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or other similar agreement (including any
option to enter into any of the foregoing).
Swing Line Loans. Seess.2.10(a).
Swing Line Note. Seess.2.10(a).
Syndication Agent. As defined in the preamble hereto.
Synthetic Lease. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
Term Lenders. Each of the Lenders holding a portion of the Term Loan as
set forth on Schedule 1 hereto, and any other Person who becomes an assignee of
any rights and obligations of a Term Lender pursuant to ss.15.
Term Loan. Collectively, the term loan made or to be made by the Term
Lenders to the Borrowers on the Closing Date in the aggregate principal amount
of $200,000,000 pursuant to ss.3.1 and any increase or new Term Loan made in
accordance with ss.3.2, as each may be increased or reduced from time to time in
accordance with this Credit Agreement.
Term Loan Amount. (a) individually, with respect to each Term Lender,
the amount set forth on Schedule 1 hereto as the amount of such Term Lender's
portion of the Term Loan and (b) collectively, the outstanding principal amount
of the Term Loan at any time.
Term Loan Maturity Date. September 30, 2010.
Term Loan Percentage. With respect to each Term Lender, the percentage
set forth on Schedule 1 hereto as such Term Lender's percentage of the aggregate
Term Loan Amount of all the Term Lenders.
Term Notes. Seess.3.3.
Term Note Record. A Record with respect to a Term Note.
Total Facility Amount. The sum of the Total Revolving Credit Commitment
plus the Term Loan Amount, which shall equal $400,000,000 on the Closing Date,
as the same may be increased or reduced from time to time in accordance with
this Credit Agreement.
-23-
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Revolving Credit Lenders, which shall equal $200,000,000 on
the Closing Date, as the same may be increased or reduced from time to time in
accordance with this Credit Agreement.
Type. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrowers do not reimburse the Administrative Agent and the Revolving Credit
Lenders on the date specified in, and in accordance with, ss.4.2.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
2002 Subordinated Note Indenture. The Indenture dated as of June 12,
2002, entered into by the Parent, the 'Subsidiary Guarantors' defined therein
and The Bank of New York, as trustee thereunder, with respect to the 2002
Subordinated Notes, as the same may be supplemented, amended or modified from
time to time in accordance with the terms hereof (including without limitation
ss.9.7 hereof).
2002 Subordinated Notes. Any and all Notes Due 2012 issued by the
Parent under and pursuant to the 2002 Subordinated Note Indenture.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or 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 Credit
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 not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
-24-
(g) All terms not specifically defined herein or by GAAP,
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, with
the term "instrument" being that defined under Article 9 of the Uniform
Commercial Code.
(h) Reference to a particular "ss." refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to,
among others, the Administrative Agent and the Borrowers and are the
product of discussions and negotiations among all parties. Accordingly,
this Credit Agreement and the other Loan Documents are not intended to
be construed against the Administrative Agent or any of the Lenders
merely on account of the Administrative Agent's or any Lender's
involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
-----------------------------
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Revolving Credit Lenders severally agrees
to lend to the Borrowers and the Borrowers may borrow, repay, and reborrow from
time to time from the Closing Date up to but not including the Revolving Credit
Loan Maturity Date upon notice by the Borrowers to the Administrative Agent
given in accordance with ss.2.7, such sums as are requested by the Borrowers up
to a maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Revolving Credit Lender's Revolving
Credit Commitment minus such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations, provided that the sum of the outstanding amount of
the Revolving Credit Loans (after giving effect to all amounts requested) plus
the outstanding amount of the Swing Line Loans (after giving effect to all
amounts requested) plus the Maximum Drawing Amount and all Unpaid Reimbursement
-25-
Obligations shall not at any time exceed the Total Revolving Credit Commitment
at such time. The Revolving Credit Loans shall be made pro rata in accordance
with each Revolving Credit Lender's Revolving Credit Commitment Percentage. Each
request for a Revolving Credit Loan hereunder shall constitute a representation
and warranty by the Borrowers that the conditions set forth in ss.11 and ss.12,
in the case of the initial Revolving Credit Loans to be made on the Closing
Date, and ss.12, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.
2.2. INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT Unless a Default or
Event of Default has occurred and is continuing, the Borrowers may request, on
one or more occasions at any time prior to the Revolving Credit Loan Maturity
Date, that the Total Revolving Credit Commitment in effect on the date of such
request be increased by an amount such that Total Facility Amount does not
exceed $450,000,000; provided that (i) no Revolving Credit Lender shall have an
obligation to the Borrowers, the Administrative Agent or any other Lender to
increase its Revolving Credit Commitment or its Revolving Credit Commitment
Percentage, (ii) in the event that it becomes necessary to include one or more
new Revolving Credit Lenders to provide additional funding under this ss.2.2 in
order to enable such increase in the Total Revolving Credit Commitment to occur,
such new Revolving Credit Lenders shall be acceptable to the Administrative
Agent, (iii) such new Revolving Credit Lender(s) shall have executed and
delivered to the Administrative Agent an instrument of accession in form and
substance satisfactory to the Administrative Agent, (iv) the Revolving Credit
Lenders' Revolving Credit Commitment Percentages shall be correspondingly
adjusted, (v) each new Revolving Credit Lender shall make all (if any) such
payments to the other Revolving Credit Lenders as may be necessary to result in
the sum of the Revolving Credit Loans to be made by such new Revolving Credit
Lender plus such new Revolving Credit Lender's proportionate share of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations being equal to
such new Revolving Credit Lender's Revolving Credit Commitment Percentage of the
aggregate principal amount of the sum of all Revolving Credit Loans outstanding
to the Borrowers as of such date plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations as of such date, and (vi) Revolving Credit Notes shall
be issued or amended and such other changes shall be made to the Loan Documents,
as shall be necessary to reflect any such increase in the Total Revolving Credit
Commitment. Any such increase in the Total Revolving Credit Commitment shall
require, among other things, the satisfaction of such conditions precedent as
the Administrative Agent may require, including, without limitation, the
Administrative Agent's receipt of evidence of applicable corporate authorization
and other corporate documentation from the Borrowers and the legal opinion of
counsel to the Borrowers, each in form and substance satisfactory to the
Administrative Agent and such Revolving Credit Lenders as are participating in
such increase.
2.3. COMMITMENT FEE. The Borrowers jointly and severally agree to pay
to the Administrative Agent for the accounts of the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitment Percentages a
commitment fee (the "Commitment Fee") equal to the Applicable Commitment Fee
-26-
Rate multiplied by the amount of the average daily unused portion of the Total
Revolving Credit Commitment during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Maturity Date (or to the date of
termination in full of the Total Revolving Credit Commitment, if earlier);
provided however, outstanding Swing Line Loans shall not be considered usage for
the purposes of calculating the Commitment Fee. The Commitment Fee shall be
payable quarterly in arrears on the first Business Day of each calendar quarter
for the immediately preceding calendar quarter commencing on January 1, 2004,
with a final payment on the Revolving Credit Maturity Date or any earlier date
on which the Total Revolving Credit Commitment shall terminate.
2.4. REDUCTION OF TOTAL REVOLVING CREDIT COMMITMENT. The Borrowers
shall have the right at any time and from time to time upon five (5) Business
Days prior written notice to the Administrative Agent to reduce by $5,000,000 or
an integral multiple of $1,000,000 in excess thereof or to terminate entirely
the Total Revolving Credit Commitment, whereupon the Revolving Credit
Commitments of the Revolving Credit Lenders shall be reduced pro rata in
accordance with their respective Revolving Credit Commitment Percentages of the
amount specified in such notice or, as the case may be, terminated. Promptly
after receiving any notice of the Borrowers delivered pursuant to this ss.2.4,
the Administrative Agent will notify the Revolving Credit Lenders of the
substance thereof. Upon the effective date of any such reduction or termination,
the Borrowers shall pay to the Administrative Agent for the respective accounts
of the Revolving Credit Lenders the full amount of any Commitment Fee then
accrued on the amount of the reduction. No reduction or termination of the
Commitments may be reinstated.
2.5. EVIDENCE OF DEBT; REVOLVING CREDIT NOTES.
2.5.1. LOAN ACCOUNTS. Each Revolving Credit Lender shall
maintain in accordance with its usual practice an account or
accounts evidencing Indebtedness of the Borrowers to such
Revolving Credit Lender resulting from such Revolving Credit
Lender's Revolving Credit Loan Percentage of the Revolving
Credit Loans from time to time, including the amounts of
principal and interest payable and paid to such Revolving
Credit Lender from time to time under this Credit Agreement.
The Administrative Agent shall maintain accounts in which it
shall record (a) the amount of the Revolving Credit Loans made
hereunder, the Type thereof and each Interest Period
applicable thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the
Borrowers to each Revolving Credit Lender hereunder and (c)
both the amount of any sums received by the Administrative
Agent hereunder for the account of the Revolving Credit
Lenders and each Revolving Credit Lender's share thereof (if
any). The entries made by each Revolving Credit Lender in the
accounts maintained pursuant to this ss.2.5.1 (or any
Revolving Credit Note Record referred to below) shall, to the
extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrowers
therein recorded; provided, however, that the failure of any
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Lender to maintain any such accounts, or any error therein,
shall not in any manner affect the obligation of the Borrowers
to repay (with applicable interest) the Revolving Credit Loan
made in accordance with the terms of this Credit Agreement.
2.5.2. REVOLVING CREDIT NOTES. The Borrowers agree that, upon
the request of any Revolving Credit Lender, they shall execute
a promissory note in form and substance satisfactory to the
Administrative Agent, dated as of the Closing Date (or such
other date on which a Revolving Credit Lender may become a
party hereto in accordance with ss.15 hereof) and completed
with appropriate insertions. The Revolving Credit Note shall
be payable to the order of such Revolving Credit Lender in a
principal amount equal to such Revolving Credit Lender's
Revolving Credit Loan Percentage of the Revolving Credit Loans
and representing the obligation of the Borrowers to pay to
such Revolving Credit Lender such principal amount or, if
less, the outstanding amount of such Revolving Credit Lender's
Revolving Credit Loan Percentage of the Revolving Credit
Loans, plus interest accrued thereon, as set forth below. The
Borrowers irrevocably authorize each Revolving Credit Lender
with a Revolving Credit Note to make or cause to be made a
notation on such Revolving Credit Lender's Revolving Credit
Note Record reflecting the original principal amount of such
Revolving Credit Lender's Revolving Credit Loan Percentage of
the Revolving Credit Loans and, at or about the time of the
receipt of any payment of principal on such Lender's Revolving
Credit Note, an appropriate notation on such Revolving Credit
Lender's Revolving Credit Note Record reflecting the receipt
of such payment.
2.6. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
inss.5.10,
(a) Each Revolving Credit Loan which is a Base Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with respect thereto
at the rate per annum equal to the Base Rate plus the Applicable Margin
with respect to Base Rate Loans as in effect from time to time.
(b) Each Revolving Credit Loan which is a Eurodollar Rate Loan
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at the rate per annum equal to the Eurodollar Rate determined
for such Interest Period plus the Applicable Margin with respect to
Eurodollar Rate Loans as in effect from time to time.
The Borrowers jointly and severally promise to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect thereto.
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2.7. REQUESTS FOR REVOLVING CREDIT LOANS.
The Borrowers shall give to the Administrative Agent written notice in
the form of Exhibit A hereto (or telephonic notice confirmed in a writing in the
form of Exhibit A hereto) of each Revolving Credit Loan requested hereunder (a
"Loan Request") not later than 11:00 a.m. (Boston time) (a) one (1) Business Day
prior to the proposed Drawdown Date of any Base Rate Loan and (b) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any Eurodollar
Rate Loan. Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit Loan
and (iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Revolving Credit
Lenders thereof. Each Loan Request shall be irrevocable and binding on the
Borrowers and shall obligate the Borrowers to accept the Revolving Credit Loan
requested from the Revolving Credit Lenders on the proposed Drawdown Date. Each
Loan Request shall be in a minimum aggregate amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof.
2.8. CONVERSION OPTIONS.
2.8.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.
The Borrowers may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
provided that (a) with respect to any such conversion of a Eurodollar
Rate Loan to a Base Rate Loan, the Borrowers shall give the
Administrative Agent at least three (3) Business Days prior written
notice of such election; (b) with respect to any such conversion of a
Base Rate Loan to a Eurodollar Rate Loan, the Borrowers shall give the
Administrative Agent at least four (4) Eurodollar Business Days prior
written notice of such election; (c) with respect to any such
conversion of a Eurodollar Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period
with respect thereto and (d) no Revolving Credit Loan may be converted
into a Eurodollar Rate Loan when any Default or Event of Default has
occurred and is continuing. On the date on which such conversion is
being made each Revolving Credit Lender shall take such action as is
necessary to transfer its Revolving Credit Commitment Percentage to its
Domestic Lending Office or its Eurodollar Lending Office, as the case
may be. All or any part of outstanding Revolving Credit Loans of any
Type may be converted into a Revolving Credit Loan of another Type as
provided herein, provided that any partial conversion shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of
$500,000 in excess thereof. Each Conversion Request relating to the
conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall
be irrevocable by the Borrowers.
2.8.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the Borrowers with the notice
provisions contained in ss.2.8.1; provided that no Eurodollar Rate Loan
-29-
may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent active upon the
Borrowers' account have actual knowledge. In the event that the
Borrowers fail to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such Eurodollar
Rate Loan shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Revolving Credit Lenders promptly
when any such automatic conversion contemplated by this ss.2.8 is
scheduled to occur.
2.8.3. EURODOLLAR RATE LOANS. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $1,000,000 or an integral multiple of
$500,000 in excess thereof. No more than eight (8) Eurodollar Rate
Loans (whether Revolving Credit Loans or a portion of the Term Loan)
having different Interest Periods may be outstanding at any time.
2.9. FUNDS FOR REVOLVING CREDIT LOANS.
2.9.1. FUNDING PROCEDURES. Not later than 1:00 p.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loans, each
of the Revolving Credit Lenders will make available to the
Administrative Agent, at the Administrative Agent's Office, in
immediately available funds, the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the amount of the
requested Revolving Credit Loans. Upon receipt from each Revolving
Credit Lender of such amount, and upon receipt of the documents
required by ss.ss.11 and 12 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrowers the aggregate
amount of such Revolving Credit Loans made available to the
Administrative Agent by the Revolving Credit Lenders. The failure or
refusal of any Revolving Credit Lender to make available to the
Administrative Agent at the aforesaid time and place on any Drawdown
Date the amount of its Revolving Credit Commitment Percentage of the
requested Revolving Credit Loans shall not relieve any other Revolving
Credit Lender from its several obligation hereunder to make available
to the Administrative Agent the amount of such other Revolving Credit
Lender's Revolving Credit Commitment Percentage of any requested
Revolving Credit Loans.
2.9.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative
Agent may, unless notified to the contrary by any Revolving Credit
Lender prior to a Drawdown Date, assume that such Revolving Credit
Lender has made available to the Administrative Agent on such Drawdown
Date the amount of such Revolving Credit Lender's Revolving Credit
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Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrowers a corresponding amount. If any Revolving Credit Lender makes
available to the Administrative Agent such amount on a date after such
Drawdown Date, such Revolving Credit Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a)
the average computed for the period referred to in clause (c) below, of
the weighted average interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day
included in such period, times (b) the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of such Revolving
Credit Loans, times (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such Revolving Credit Loans shall
become immediately available to the Administrative Agent, and the
denominator of which is 360. A statement of the Administrative Agent
submitted to such Revolving Credit Lender with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount
due and owing to the Administrative Agent by such Revolving Credit
Lender. If the amount of such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such Revolving Credit Loans is not made
available to the Administrative Agent by such Revolving Credit Lender
within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrowers on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
2.10. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Revolving Credit Loans and
so long as the Administrative Agent has not received a written notice pursuant
to ss.8.5 or ss.14.10 of a Default or Event of Default, the Administrative Agent
may, upon receipt of a Loan Request requesting a Swing Line Loan no later than
2:30 p.m. (Boston time) on the proposed date of funding, but shall not be
required to, fund Base Rate Loans made in accordance with the provisions of this
Credit Agreement ("Swing Line Loans") for periods not to exceed seven (7) days
in any one case, bearing interest as set forth in ss.2.6. The Swing Line Loans
shall be evidenced by a promissory note of the Borrowers in substantially the
form of Exhibit B hereto (the "Swing Line Note") dated as of the Closing Date,
and shall each be in a minimum amount of $100,000 or greater; provided that the
outstanding amount of Swing Line Loans advanced by the Administrative Agent
hereunder shall not exceed $20,000,000 at any time. Each Revolving Credit Lender
shall remain severally and unconditionally liable to fund its pro rata share
(based upon each Revolving Credit Lender's Revolving Credit Commitment
Percentage) of such Swing Line Loans on each Settlement Date and, in the event
the Administrative Agent chooses not to fund all Swing Line Loans requested on
any date, to fund its Revolving Credit Commitment Percentage of the Base Rate
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Loans requested, subject to satisfaction of the provisions hereof relating to
the making of Base Rate Loans. Prior to each Settlement, all payments or
repayments of the principal of, and interest on, Swing Line Loans shall be
credited to the account of the Administrative Agent.
(b) The Revolving Credit Lenders shall effect Settlements on (i) the
Business Day immediately following any day which the Administrative Agent gives
written notice to the Revolving Credit Lenders to effect a Settlement, (ii) the
Business Day immediately following the Administrative Agent's becoming aware of
the existence of any Default or Event of Default, (iii) the Revolving Credit
Loan Maturity Date, and (iv) in any event, the seventh day on which any Swing
Line Loan remains outstanding (each such date, a "Settlement Date"). The
Administrative Agent shall give telephonic notice to the Revolving Credit
Lenders one (1) Business Day prior to each such Settlement Date of (A) the
respective outstanding amount of Revolving Credit Loans made by each Revolving
Credit Lender as at the close of business on the prior day, and (B) the amount
that any Revolving Credit Lender (each, a "Settling Lender"), shall pay to
effect a Settlement (a "Settlement Amount"). A statement of the Administrative
Agent submitted to the Revolving Credit Lenders with respect to any amounts
owing hereunder shall be prima facie evidence of the amount due and owing. Each
Settling Lender shall, not later than 1:00 p.m. (Boston time) on each Settlement
Date, effect a wire transfer of immediately available funds to the
Administrative Agent at the Administrative Agent's Office in the amount of such
Revolving Credit Lender's Settlement Amount. All funds advanced by any Revolving
Credit Lender as a Settling Lender pursuant to this ss.2.10 shall for all
purposes be treated as a Base Rate Loan to the Borrowers.
(c) The Administrative Agent may (unless notified to the contrary by
any Settling Lender by 12:00 noon (Boston time) one (1) Business Day prior to
the Settlement Date) assume that each Settling Lender has made available (or
will make available by the time specified in ss.2.10(b)) to the Administrative
Agent its Settlement Amount, and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, effect Settlements. If the
Settlement Amount of such Settling Lender is made available to the
Administrative Agent on a date after such Settlement Date, such Settling Lender
shall pay the Administrative 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 Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in
such period times (ii) such Settlement Amount times (iii) a fraction, the
numerator of which is the number of days that elapse from and including such
Settlement Date to but not including the date on which such Settlement Amount
shall become immediately available to the Administrative Agent, and the
denominator of which is 365. Upon payment of such amount such Settling Lender
shall be deemed to have delivered its Settlement Amount on the Settlement Date
and shall become entitled to interest payable by the Borrowers with respect to
such Settling Lender's Settlement Amount as if such share were delivered on the
Settlement Date. If such Settlement Amount is not in fact made available to the
Administrative Agent by such Settling Lender within five (5) Business Days of
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such Settlement Date, the Administrative Agent shall be entitled to recover such
amount from the Borrowers, with interest thereon at the Base Rate.
(d) After any Settlement Date, any payment by the Borrowers of Swing
Line Loans hereunder shall be allocated pro rata among the Revolving Credit
Lenders in accordance with the Revolving Credit Lenders' respective Revolving
Credit Commitment Percentages.
(e) If, prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this ss.2.10, a Default or Event of Default has occurred and is
continuing, each Revolving Credit Lender will, on the date such Revolving Credit
Loan was to have been made, purchase an undivided participating interest in the
outstanding Swing Line Loans in an amount equal to its Revolving Credit
Commitment Percentage. Each Revolving Credit Lender will immediately transfer to
the Administrative Agent, in immediately available funds, the amount of its
participation and upon receipt thereof the Administrative Agent will deliver to
such Revolving Credit Lender a participation certificate dated the date of
receipt of such funds and in such amount.
(f) Whenever, at any time after the Administrative Agent has received
from any Revolving Credit Lender such Revolving Credit Lender's participating
interest in the Swing Line Loans pursuant to clause (e) above, the
Administrative Agent receives any payment on account thereof, the Administrative
Agent will distribute to such Revolving Credit Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by the
Administrative Agent is required to be returned, such Revolving Credit Lender
will return to the Administrative Agent any portion thereof previously
distributed by the Administrative Agent to it in like funds as such payment is
required to be returned by the Administrative Agent.
(g) Each Revolving Credit Lender's obligation to purchase participating
interests pursuant to clause (e) above shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender may have against the Administrative Agent, the Borrowers
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrowers or any other Person; (iv)
any breach of this Credit Agreement by the Borrowers or any other Revolving
Credit Lender or the Administrative Agent; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.11. REPAYMENT OF THE REVOLVING CREDIT LOANS.
2.11.1. MATURITY. The Borrowers jointly and severally promise
to pay on the Revolving Credit Loan Maturity Date, and there shall
become absolutely due and payable on the Revolving Credit Loan Maturity
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Date, all of the Revolving Credit Loans outstanding on such date,
together with any and all accrued and unpaid interest thereon.
2.11.2. MANDATORY REPAYMENT OF THE REVOLVING CREDIT LOANS. If
at any time the sum of the outstanding amount of the Revolving Credit
Loans, the outstanding amount of the Swing Line Loans, the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Revolving Credit Commitment at such time, then the Borrowers
shall immediately pay the amount of such excess to the Administrative
Agent for the respective accounts of the Revolving Credit Lenders for
application: first, to any Unpaid Reimbursement Obligations; second, to
the Swing Line Loans, third, to the Revolving Credit Loans; and fourth,
to provide to the Administrative Agent cash collateral for
Reimbursement Obligations as contemplated by ss.4.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or prepayment of
Revolving Credit Loans shall be allocated among the Revolving Credit
Lenders, in proportion, as nearly as practicable, their respective
Revolving Credit Commitment Percentages of such amount, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
2.11.3. OPTIONAL PREPAYMENT OF THE REVOLVING CREDIT LOANS. The
Borrowers shall have the right, at their election, to repay the
outstanding amount of the Revolving Credit Loans, as a whole or in
part, at any time without penalty or premium, provided that any full or
partial prepayment of the outstanding amount of any Eurodollar Rate
Loans pursuant to this ss.2.11.3 may be made only on the last day of
the Interest Period relating thereto. The Borrowers shall give the
Administrative Agent, no later than 11:00 a.m. (Boston time), at least
one (1) Business Days prior written notice of any proposed prepayment
pursuant to this ss.2.11.3 of Base Rate Loans, and three (3) Eurodollar
Business Days notice of any proposed prepayment pursuant to this
ss.2.11.3 of Eurodollar Rate Loans, in each case specifying the
proposed date of prepayment of Revolving Credit Loans and the principal
amount to be prepaid. Each such partial prepayment of the Revolving
Credit Loans (a) shall be in a minimum amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof, (b) shall be
accompanied by the payment of accrued interest on the principal prepaid
to the date of prepayment and (c) shall be applied, in the absence of
instruction by the Borrowers, first to the principal of Base Rate Loans
and then to the principal of Eurodollar Rate Loans. Each partial
prepayment shall be allocated among the Revolving Credit Lenders, in
proportion, as nearly as practicable, to their Revolving Credit
Commitment Percentages of such amount, with adjustments to the extent
practicable to equalize any prior repayments not exactly in proportion.
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3. THE TERM LOAN.
-------------
3.1. INITIAL FUNDING. Subject to the terms and conditions set forth in
this Credit Agreement, each Term Lender agrees to lend to the Borrowers on the
Closing Date the amount of its Term Loan Percentage of the principal amount of
$200,000,000.
3.2. INCREASE IN TERM LOAN AMOUNT. Unless a Default or Event of Default
has occurred and is continuing, the Borrowers may request, on one or more
occasions at any time prior to the Term Loan Maturity Date, that the Term Loan
Amount in effect on the date of such request be increased or a new Term Loan
advanced, in either case, by amounts such that Total Facility Amount does not
exceed $450,000,000; provided that (i) no existing Term Loan Lender shall have
an obligation to the Borrowers, the Administrative Agent or any other Lender to
increase its Term Loan Amount or its Term Loan Percentage, (ii) in the event
that it becomes necessary to include one or more new Term Lenders to provide
additional funding under this ss.3.2 to occur, such new Term Lenders shall be
acceptable to the Administrative Agent, (iii) such new Term Lender(s) shall have
executed and delivered to the Administrative Agent an instrument of accession in
form and substance satisfactory to the Administrative Agent, (iv) the Term
Lenders' Term Loan Percentages shall be correspondingly adjusted, (v) with
respect to any increase in the existing Term Loan, each new Term Lender shall
make all (if any) such payments to the other existing Term Lenders as may be
necessary to result in the Term Loan to be made by such new Term Lender being
equal to such new Term Lender's Term Loan Percentage of the aggregate principal
amount of the Term Loan outstanding to the Borrowers as of such date, and (vi)
such other changes shall be made to the Loan Documents, as shall be necessary to
reflect any such increase in the Term Loan Amount. Any such increase in the Term
Loan Amount shall require, among other things, the satisfaction of such
conditions precedent as the Administrative Agent may require, including, without
limitation, the Administrative Agent's receipt of evidence of applicable
corporate authorization and other corporate documentation from the Borrowers and
the legal opinion of counsel to the Borrowers, each in form and substance
satisfactory to the Administrative Agent and such Term Lenders as are
participating in such increase.
3.3. EVIDENCE OF DEBT; THE TERM NOTES.
3.3.1. LOAN ACCOUNTS. Each Term Lender shall maintain in
accordance with its usual practice an account or accounts
evidencing Indebtedness of the Borrowers to such Term Lender
resulting from such Term Lender's Term Loan Percentage of the
Term Loan, including the amounts of principal and interest
payable and paid to such Term Lender from time to time under
this Credit Agreement. The Administrative Agent shall maintain
accounts in which it shall record (a) the amount of the Term
Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the
Borrowers to each Term Lender hereunder and (c) both the
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amount of any sums received by the Administrative Agent
hereunder for the account of the Term Lenders and each Term
Lender's share thereof (if any). The entries made by each Term
Lender in the accounts maintained pursuant to this ss.3.3.1
(or any Term Note Record referred to below) shall, to the
extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrowers
therein recorded; provided, however, that the failure of any
Lender to maintain any such accounts, or any error therein,
shall not in any manner affect the obligation of the Borrowers
to repay (with applicable interest) the Term Loan made in
accordance with the terms of this Credit Agreement.
3.3.2. TERM NOTES. The Borrowers agree that, upon the request
of any Term Lender, they shall execute a promissory note of
the Borrowers on terms and conditions satisfactory to the
Administrative Agent, dated as of the Closing Date (or such
other date on which a Term Lender may become a party hereto in
accordance with ss.15 hereof) and completed with appropriate
insertions. The Term Note shall be payable to the order of
such Term Lender in a principal amount equal to such Term
Lender's Term Loan Percentage of the Term Loan and
representing the obligation of the Borrowers to pay to such
Term Lender such principal amount or, if less, the outstanding
amount of such Term Lender's Term Loan Percentage of the Term
Loan, plus interest accrued thereon, as set forth below. The
Borrowers irrevocably authorize each Term Lender with a Term
Note to make or cause to be made a notation on such Term
Lender's Term Note Record reflecting the original principal
amount of such Term Lender's Term Loan Percentage of the Term
Loan and, at or about the time of the receipt of any payment
of principal on such Lender's Term Note, an appropriate
notation on such Term Lender's Term Note Record reflecting the
receipt of such payment.
3.4. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN. The
Borrowers jointly and severally promise to pay to the Administrative Agent for
the account of the Term Lenders, in accordance with their respective Term Loan
Percentages, the principal amount of the Term Loan in quarterly installments due
and payable on the last Business day of each calendar quarter, aggregating total
amounts for the period commencing on October 1 of each year through and
including September 30 of the following year, according to the table below, with
the balance, if any, due on the Term Loan Maturity Date:
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---------------------------------------------- ----------------------------------------------
Period: Percentage of Term Loan
---------------------------------------------- ----------------------------------------------
October 1, 2003 through September 30, 2004 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2004 through September 30, 2005 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2005 through September 30, 2006 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2006 through September 30, 2007 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2007 through September 30, 2008 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2008 through September 30, 2009 1.0 %
---------------------------------------------- ----------------------------------------------
October 1, 2009 through September 30, 2010 94.0%
---------------------------------------------- ----------------------------------------------
3.5. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrowers shall have the
right at any time to prepay the Term Loan on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, provided
that (a) each partial prepayment shall be in the principal amount of $1,000,000
or an integral multiple of $500,000 in excess thereof, (b) no portion of the
Term Loan bearing interest at the Eurodollar Rate may be prepaid pursuant to
this ss.3.5 except on the last day of the Interest Period relating thereto
except in accordance with ss.5.9, and (c) each partial prepayment shall be
allocated among the Term Lenders, in proportion, as nearly as practicable, to
the respective outstanding amount of each Term Lender's Term Loan, with
adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
3.6. MANDATORY PREPAYMENTS OF THE TERM LOAN.
3.6.1. ASSET SALES. In the event any Borrower receives Net
Cash Sales Proceeds from any dispositions of assets (other than the
sale, lease, license or other disposition of assets in the ordinary
course of business and with respect to asset swaps) in excess of
$5,000,000 in the aggregate per year, the Borrowers shall make a
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prepayment of the Term Loan in an amount equal to one hundred percent
(100%) of such Net Cash Sales Proceeds.
3.6.2. DEBT ISSUANCE. In the event any Borrower receives Net
Cash Proceeds from any issuance of Indebtedness permitted by ss.9.1
after the Closing Date (other than Net Cash Proceeds from the issuance
of the Series E Convertible Preferred Stock pursuant to ss.8.20), the
Borrowers shall make a prepayment of the Term Loan in an amount equal
to one hundred percent (100%) of such Net Cash Proceeds; provided that
the Borrowers may issue Subordinated Debt in an aggregate amount not to
exceed $100,000,000 without mandatory prepayment of the Term Loan.
3.6.3. EQUITY ISSUANCE. In the event any Borrower receives Net
Cash Proceeds of any issuance of equity after the Closing Date (other
than Net Cash Proceeds from the issuance of the Series E Convertible
Preferred Stock pursuant to ss.8.20), the Borrowers shall make a
prepayment of the Term Loan in an amount equal to fifty percent (50%)
of such Net Cash Proceeds; provided that the Borrowers may issue new
equity in an aggregate amount not to exceed $100,000,000 without
mandatory prepayment of the Term Loan; and provided further that the
Borrowers may issue new equity or a portion thereof (i) as payment in a
Permitted Acquisition, (ii) to employees, consultants or directors in
accordance with bona fide option plans of which the dollar value of the
shares in such plans are issued as payment in such Permitted
Acquisition, or (iii) to employees, consultants or directors in
connection with the exercise of options under such bona fide option
plans, without mandatory prepayment of the Term Loan.
3.6.4. EXCESS OPERATING CASH FLOW. The Borrowers shall make a
prepayment of the Term Loan in an amount equal to the percentage of
Excess Consolidated Operating Cash Flow corresponding to the Leverage
Ratio set forth in the table below:
-------------------------------------------------- ------------------------------------------------
Leverage Ratio Percentage of Excess Consolidated Operating
Cash Flow Required as Mandatory Prepayment of
Term Loan
-------------------------------------------------- ------------------------------------------------
=> 3.50:1.00 50%
-------------------------------------------------- ------------------------------------------------
=>3.00:1.00 and <3.50:1.00 25%
-------------------------------------------------- ------------------------------------------------
<3.00:1.00 0%
-------------------------------------------------- ------------------------------------------------
3.6.5. PAYMENT PROVISIONS. Each prepayment of the Term Loan
required by this ss.3.6 shall be allocated among the Term Lenders in
accordance with their respective Term Loan Percentages. Any prepayment
of principal of the Term Loan shall include all interest accrued to the
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date of prepayment and shall be applied against the scheduled
installments of principal due on the Term Loan in the inverse order of
maturity. No amount repaid with respect to the Term Loan may be
reborrowed. Any Term Lender may decline to accept any payments due to
such Term Lender pursuant to this ss.3.6, in which case such payments
shall be used to repay the Revolving Credit Loans; provided that such
payments shall not reduce the Total Revolving Credit Commitment.
3.7. INTEREST ON TERM LOAN.
3.7.1. INTEREST RATES. Except as otherwise provided in
ss.5.10, the Term Loan shall bear interest during each Interest Period
relating to all or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period at the Base
Rate, the Term Loan or such portion shall bear interest during
such Interest Period at the rate per annum equal to the Base
Rate plus the Applicable Margin with respect to Base Rate
Loans as in effect from time to time.
(b) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period at the
Eurodollar Rate, the Term Loan or such portion shall bear
interest during such Interest Period at the rate per annum
equal to the Eurodollar Rate determined for such Interest
Period plus the Applicable Margin with respect to Eurodollar
Rate Loans as in effect from time to time.
The Borrowers jointly and severally promise to pay interest on the Term
Loan or any portion thereof outstanding during each Interest Period in
arrears on each Interest Payment Date applicable to such Interest
Period.
3.7.2. NOTIFICATION BY BORROWERS. The Borrowers shall notify
the Administrative Agent, such notice to be irrevocable, at least three
(3) Eurodollar Business Days prior to the Drawdown Date of the Term
Loan if all or any portion of the Term Loan is to bear interest at the
Eurodollar Rate. After the Term Loan have been made, the provisions of
ss.2.8 shall apply mutatis mutandis with respect to all or any portion
of the Term Loan so that the Borrowers may have the same interest rate
options with respect to all or any portion of the Term Loan as they
would be entitled to with respect to the Revolving Credit Loans.
3.7.3. AMOUNTS, ETC. Any portion of the Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall
be in the amount of $1,000,000 or an integral multiple of $500,000 in
excess thereof. No Interest Period relating to the Term Loan or any
portion thereof bearing interest at the Eurodollar Rate shall extend
beyond the date on which a regularly scheduled installment payment of
the principal of the Term Loan is to be made unless a portion of the
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Term Loan at least equal to such installment payment has an Interest
Period ending on such date or is then bearing interest at the Base
Rate.
4. LETTERS OF CREDIT.
-----------------
4.1. LETTER OF CREDIT COMMITMENTS.
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by the
Borrowers of a letter of credit application on the Administrative
Agent's customary form (a "Letter of Credit Application"), the
Administrative Agent on behalf of the Revolving Credit Lenders and in
reliance upon the agreement of the Revolving Credit Lenders set forth
in ss.4.1.4 and upon the representations and warranties of the
Borrowers contained herein, agrees, in its individual capacity, to
issue, extend and renew for the account of the Borrowers one or more
standby letters of credit (including, in the case of L/C Supported
IRBs, so-called direct pay letters of credit, "IRB Letters of Credit")
(collectively, the "Letters of Credit"), in such form as may be
requested from time to time by the Borrowers and agreed to by the
Administrative Agent; provided, however, that, after giving effect to
such request, (a) the sum of the aggregate Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not exceed $80,000,000 at
any one time, and (b) the sum of (i) the Maximum Drawing Amount on all
Letters of Credit, (ii) all Unpaid Reimbursement Obligations, (iii) the
amount of all Revolving Credit Loans outstanding and (iv) the amount of
all outstanding Swing Line Loans shall not exceed the Total Revolving
Credit Commitment at such time. The letters of credit listed on
Schedule 4.1.1 issued by the issuing bank under the Prior Credit
Agreement shall be Letters of Credit under this Credit Agreement. This
Credit Agreement shall be the "Reimbursement Agreement" referred to in
the L/C Supported IRBs.
4.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the
Administrative Agent. In the event that any provision of any Letter of
Credit Application shall be inconsistent with any provision of this
Credit Agreement, then the provisions of this Credit Agreement shall,
to the extent of any such inconsistency, govern.
4.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things,
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein. No Letter of Credit shall have an
expiry date later than the earlier of (i) one (1) year after the date
of issuance of such Letter of Credit (which may incorporate automatic
renewals for periods of up to one (1) year, provided that the
Administrative Agent may, upon thirty (30) days notice to the
beneficiary prior to renewal, cancel such Letter of Credit), or (ii)
thirty (30) days prior to the Revolving Credit Maturity Date. Each
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Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 or any successor
version thereto adopted by the Administrative Agent in the ordinary
course of its business as a letter of credit issuer and in effect at
the time of issuance of such Letter of Credit (the "Uniform Customs")
the International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter
of credit practices among banks adopted by the Administrative Agent in
the ordinary course of its business as a standby letter of credit
issuer and in effect at the time of issuance of such Letter of Credit.
4.1.4. REIMBURSEMENT OBLIGATIONS OF REVOLVING CREDIT LENDERS.
Each Revolving Credit Lender severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default or
Event of Default or any other condition precedent whatsoever, to the
extent of such Revolving Credit Lender's Revolving Credit Commitment
Percentage, to reimburse the Administrative Agent on demand for the
amount of each draft paid by the Administrative Agent under each Letter
of Credit to the extent that such amount is not reimbursed by the
Borrowers pursuant to ss.4.2 (such agreement for a Revolving Credit
Lender being called herein the "Letter of Credit Participation" of such
Revolving Credit Lender).
4.1.5. PARTICIPATIONS OF REVOLVING CREDIT LENDERS. Each such
payment made by a Revolving Credit Lender shall be treated as the
purchase by such Revolving Credit Lender of a participating interest in
the Borrowers' Reimbursement Obligation under ss.4.2 in an amount equal
to such payment. Each Revolving Credit Lender shall share in accordance
with its participating interest in any interest which accrues pursuant
to ss.4.2.
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Revolving Credit Lenders to participate therein, the Borrowers hereby jointly
and severally agree to reimburse or pay to the Administrative Agent, for the
account of the Administrative Agent or (as the case may be) the Revolving Credit
Lenders, with respect to each Letter of Credit issued, extended or renewed by
the Administrative Agent hereunder,
(a) except as otherwise expressly provided in ss.4.2(b) and
(c), on each date that any draft presented under such Letter of Credit
is honored by the Administrative Agent, or the Administrative Agent
otherwise makes a payment with respect thereto, (i) the amount paid by
the Administrative Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by the Administrative Agent or any
Revolving Credit Lender in connection with any payment made by the
Administrative Agent or any Revolving Credit Lender under, or with
respect to, such Letter of Credit; provided, however, that if the
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Borrowers do not reimburse the Administrative Agent on the date the
Administrative Agent makes payment with respect to such Letter of
Credit, such an amount shall, provided that an Event of Default
specified in ss.13.1(h) or ss.13.1(i) has not occurred, automatically
become a Loan which is a Base Rate Loan,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held
by the Administrative Agent for the benefit of the Revolving Credit
Lenders and the Administrative Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with ss.13, an amount
equal to the then Maximum Drawing Amount on all Letters of Credit,
which amount shall be held by the Administrative Agent for the benefit
of the Revolving Credit Lenders and the Administrative Agent as cash
collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrowers under this ss.4.2 at any time
from the date such amounts become due and payable (whether as stated in this
ss.4.2, by acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Administrative Agent on demand at the
rate specified in ss.5.10 for overdue principal on the Revolving Credit Loans.
4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Administrative Agent shall notify the Borrowers of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. If the Borrowers fail to
reimburse the Administrative Agent as provided in ss.4.2 on or before the date
that such draft is paid or other payment is made by the Administrative Agent,
the Administrative Agent may at any time thereafter notify the Revolving Credit
Lenders of the amount of any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following the receipt of such
notice, each Revolving Credit Lender shall make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately available funds,
such Revolving Credit Lender's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the product of
(a) the average, computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, times (b) the amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such Unpaid Reimbursement Obligation, times (c)
a fraction, the numerator of which is the number of days that elapse from and
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including the date the Administrative Agent paid the draft presented for honor
or otherwise made payment to the date on which such Revolving Credit Lender's
Revolving Credit Commitment Percentage of such Unpaid Reimbursement Obligation
shall become immediately available to the Administrative Agent, and the
denominator of which is 360. The responsibility of the Administrative Agent to
the Borrowers and the Revolving Credit Lenders shall be only to determine that
the documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
4.4. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under this ss.4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrowers may have or have had against the Administrative Agent, any
Revolving Credit Lender or any beneficiary of a Letter of Credit. The Borrowers
further agree with the Administrative Agent and the Revolving Credit Lenders
that the Administrative Agent and the Revolving Credit Lenders shall not be
responsible for, and the Borrowers' Reimbursement Obligations under ss.4.2 shall
not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even if such documents should in fact prove to
be in any or all respects invalid, fraudulent or forged, or any dispute between
or among the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrowers against the beneficiary of
any Letter of Credit or any such transferee. The Administrative Agent and the
Revolving Credit Lenders shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. The
Borrowers agree that any action taken or omitted by the Administrative Agent or
any Revolving Credit Lender under or in connection with each Letter of Credit
and the related drafts and documents, if done in good faith, shall be binding
upon the Borrowers and shall not result in any liability on the part of the
Administrative Agent or any Revolving Credit Lender to the Borrowers.
4.5. RELIANCE BY ISSUER. To the extent not inconsistent with ss.4.4,
the Administrative Agent shall be entitled to rely, and shall be fully protected
in relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement unless it shall first have received such
advice or concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the Revolving
Credit Lenders 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
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Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement in accordance with a request
of the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Revolving Credit Lenders and all
future holders of the Revolving Credit Loans or of Letter of Credit
Participations.
4.6. LETTER OF CREDIT FEE. The Borrowers jointly and severally agree to
pay a fee (in each case, a "Letter of Credit Fee") to the Administrative Agent
(a) in respect of each Financial Letter of Credit, in an amount equal to the
Applicable Margin per annum with respect to Eurodollar Rate Revolving Credit
Loans of the face amount of such Financial Letter of Credit which shall be for
the accounts of the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitment Percentages, plus an amount equal to one-eighth of
one percent (0.125%) per annum of the face amount of such Financial Letter of
Credit which shall be for the account of the Administrative Agent, as a fronting
fee, and (b) in respect of each Performance Letter of Credit, in an amount equal
to fifty percent (50%) of the Applicable Margin per annum with respect to
Eurodollar Rate Revolving Credit Loans of the face amount of such Performance
Letter of Credit which shall be for the accounts of the Revolving Credit Lenders
in accordance with their respective Revolving Credit Commitment Percentages,
plus an amount equal to one-eighth of one percent (0.125%) per annum of the face
amount of such Performance Letter of Credit shall be for the account of the
Administrative Agent, as a fronting fee. Such Letter of Credit Fee shall be
payable quarterly in arrears on each calendar quarter end date following the
date of issuance, extension, amendment or renewal of such Letter of Credit and
on the Revolving Credit Loan Maturity Date. In respect of each Letter of Credit,
the Borrowers shall also pay to the Administrative Agent for the Administrative
Agent's own account, at such other time or times as such charges are customarily
made by the Administrative Agent, the Administrative Agent's customary issuance,
amendment, negotiation or document examination and other administrative fees as
in effect from time to time.
5. CERTAIN GENERAL PROVISIONS.
--------------------------
5.1. FEES. The Borrowers jointly and severally agree to pay all Fees in
the amounts and at the times and otherwise in accordance with the terms
specified herein or the Loan Documents, as the case may be.
5.2. FUNDS FOR PAYMENTS.
5.2.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of
principal, interest, Reimbursement Obligations, Fees and any other
amounts due hereunder or under any of the other Loan Documents shall be
made on the due date thereof to the Administrative Agent in Dollars,
for the respective accounts of the Lenders and the Administrative
Agent, at the Administrative Agent's Office or at such other place that
the Administrative Agent may from time to time designate, in each case
at or about 11:00 a.m. (Boston, Massachusetts, time or other local time
at the place of payment) and in immediately available funds. Any such
amounts received by 11:00 a.m. (Boston, Massachusetts, time or other
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local time at the place of payment) shall be forwarded to the Lenders
by the close of business on the same day.
5.2.2. NO OFFSET, ETC. All payments by the Borrowers hereunder
and under any of the other Loan Documents shall be made without
recoupment, setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions
of any nature now or hereafter imposed or levied by any jurisdiction or
any political subdivision thereof or taxing or other authority therein
unless the Borrowers are compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrowers with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrowers will pay to the Administrative Agent, for
the account of the Lenders or (as the case may be) the Administrative
Agent, on the date on which such amount is due and payable hereunder or
under such other Loan Document, such additional amount in Dollars as
shall be necessary to enable the Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative
Agent would have received on such due date had no such obligation been
imposed upon the Borrowers. The Borrowers will deliver promptly to the
Administrative Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by
the Borrowers hereunder or under such other Loan Document.
5.2.3. NON-U.S. LENDERS. Each Lender and the Administrative
Agent that is not a U.S. Person as defined in Section 7701(a)(30) of
the Code for federal income tax purposes (a "Non-U.S. Lender") hereby
agrees that, if and to the extent it is legally able to do so, it
shall, prior to the date of the first payment by the Borrowers
hereunder to be made to such Lender or the Administrative Agent or for
such Lender's or the Administrative Agent's account, deliver to the
Borrowers and the Administrative Agent, as applicable, such
certificates, documents or other evidence, as and when required by the
Code or Treasury Regulations issued pursuant thereto, including (a) in
the case of a Non-U.S. Lender that is a "bank" for purposes of Section
881(c)(3)(A) of the Code, two (2) duly completed copies of Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or
statement of exemption required by Treasury Regulations, or any
subsequent versions thereof or successors thereto, properly completed
and duly executed by such Lender or the Administrative Agent
establishing that with respect to payments of principal, interest or
fees hereunder it is (i) not subject to United States federal
withholding tax under the Code because such payment is effectively
connected with the conduct by such Lender or Administrative Agent of a
trade or business in the United States or (ii) totally exempt or
partially exempt from United States federal withholding tax under a
provision of an applicable tax treaty and (b) in the case of a Non-U.S.
Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the
Code, a certificate in form and substance reasonably satisfactory to
the Administrative Agent and the Borrowers and to the effect that (i)
such Non-U.S. Lender is not a "bank" for purposes of Section
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881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as
a bank for purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application made to
a rating agency or qualification for any exemption from any tax,
securities law or other legal requirements, (ii) is not a ten (10)
percent shareholder for purposes of Section 881(c)(3)(B) of the Code
and (iii) is not a controlled foreign corporation receiving interest
from a related person for purposes of Section 881(c)(3)(C) of the Code,
together with a properly completed Internal Revenue Service Form W-8 or
W-9, as applicable (or successor forms). Each Lender or the
Administrative Agent agrees that it shall, promptly upon a change of
its lending office or the selection of any additional lending office,
to the extent the forms previously delivered by it pursuant to this
section are no longer effective, and promptly upon the Borrowers' or
the Administrative Agent's reasonable request after the occurrence of
any other event (including the passage of time) requiring the delivery
of a Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in
replacement of the forms previously delivered, deliver to the Borrowers
and the Administrative Agent, as applicable, if and to the extent it is
properly entitled to do so, a properly completed and executed Form
W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any successor
forms thereto).
5.3. COMPUTATIONS. All computations of interest on Base Rate Loans and
of Fees shall be based on a 365/366-day year and paid for the actual number of
days elapsed. All computations of interest on Eurodollar Rate Loans shall be
based on a 360-day year and paid for the actual number of days elapsed. Except
as otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under 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. The outstanding amount of the
Loans as reflected on the entries made by Revolving Credit Lenders or Term Loan
Lenders in accounts maintained pursuant to xx.xx. 2.5.1 and 3.3.1 or to the
extent applicable, Revolving Credit Note Records and the Term Note Records, from
time to time shall be considered correct and binding on the Borrowers unless
within five (5) Business Days after receipt of any notice by the Administrative
Agent or any of the Lenders of such outstanding amount, the Administrative Agent
or such Lender shall notify the Borrowers to the contrary.
5.4. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine or be notified by the Required Lenders that
(a) adequate and reasonable methods do not exist for ascertaining the Eurodollar
Rate that would otherwise determine the rate of interest to be applicable to any
Eurodollar Rate Loan during any Interest Period or (b) the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to the Lenders of making or maintaining their Eurodollar
Rate Loans during such period, the Administrative Agent shall forthwith give
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notice of such determination (which shall be conclusive and binding on the
Borrowers and the Lenders) to the Borrowers and the Lenders. In such event (i)
any Loan Request or Conversion Request with respect to Eurodollar Rate Loans
shall be automatically withdrawn and shall be deemed a request for Base Rate
Loans, (ii) each Eurodollar Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan, and
(iii) the obligations of the Lenders to make Eurodollar Rate Loans shall be
suspended until the Administrative Agent or the Required Lenders determine that
the circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Required Lenders, shall so notify the Borrowers and the
Lenders.
5.5. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrowers and the other Lenders and thereupon (a) the
commitment of such Lender to make Eurodollar Rate Loans or convert Base Rate
Loans to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Lender's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if
any, shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrowers hereby jointly and severally
agree promptly to pay the Administrative Agent for the account of such Lender,
upon demand by such Lender, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion in
accordance with this ss.5.5, including any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder.
5.6. 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 Lender or the Administrative Agent by any central bank
or other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Lender or the Administrative Agent to any tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Credit Agreement, the other Loan Documents, any
Letters of Credit, such Lender's Revolving Credit Commitment or the
Loans (other than taxes based upon or measured by the income or profits
of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable
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to any Lender or the Administrative Agent under this Credit Agreement
or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit 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 Letters of Credit issued by, or Revolving Credit Commitment of
an office of any Lender, or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Revolving Credit Commitment, or any class of loans, letters of credit
or commitments of which any of the Loans or such Lender's Revolving
Credit Commitment forms a part, and the result of any of the foregoing
is
(i) to increase the cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Lender's Revolving Credit Commitment or any
Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such
Lender or the Administrative Agent hereunder on account of
such Lender's Revolving Credit Commitment, any Letter of
Credit or any of the Loans, or
(iii) to require such Lender or the Administrative
Agent to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable hereunder, the
amount of which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such
Lender or the Administrative Agent from the Borrowers
hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Lender
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise, pay to such Lender or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Lender or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum.
5.7. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for Lenders or Lender
holding companies or any change in the interpretation or application thereof by
a Governmental Authority with appropriate jurisdiction, or (b) compliance by
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such Lender or the Administrative Agent or any corporation controlling such
Lender or the Administrative Agent with any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) of any
such entity regarding capital adequacy, has the effect of reducing the return on
such Lender's or the Administrative Agent's commitment with respect to any Loans
to a level below that which such Lender or the Administrative Agent could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or the Administrative Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Administrative
Agent to be material, then such Lender or the Administrative Agent may notify
the Borrowers of such fact. To the extent that the amount of such reduction in
the return on capital is not reflected in the Base Rate, the Borrowers jointly
and severally agree to pay such Lender or (as the case may be) the
Administrative Agent for the amount of such reduction in the return on capital
as and when such reduction is determined upon presentation by such Lender or (as
the case may be) the Administrative Agent of a certificate in accordance with
ss.6.9 hereof. Each Lender shall allocate such cost increases among its
customers in good faith and on an equitable basis.
5.8. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to ss.ss.5.6 or 5.7 and a brief explanation of such amounts
which are due, submitted by any Lender or the Administrative Agent to the
Borrowers, shall be conclusive, absent manifest error, that such amounts are due
and owing.
5.9. INDEMNITY. The Borrowers jointly and severally agree to indemnify
each Lender and its affiliates and employees and to hold each Lender and its
affiliates and employees harmless from and against any loss, cost or expense
(including loss of anticipated profits) that such Lender may sustain or incur as
a consequence of (a) default by the Borrowers in payment of the principal amount
of or any interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by such
Lender with respect to funds obtained by it in order to maintain its Eurodollar
Rate Loans, (b) default by the Borrowers in making a borrowing or conversion
after the Borrowers have given (or are deemed to have given) a Loan Request,
notice (in the case of all or any portion of the Term Loan pursuant to ss.3.7.2)
or a Conversion Request relating thereto in accordance with ss.2.7 or ss.2.8 or
ss.3.7 or (c) the making of any payment of a Eurodollar Rate Loan or the making
of any conversion of any such Loan to a Base Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain any such Loans.
5.10. DEFAULT INTEREST.
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 two percent (2%) above the rate
of interest then applicable thereto (or, if no rate of interest is then
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applicable thereto, the Base Rate) until such amount shall be paid in full
(after as well as before judgment).
5.11. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers accepts joint and several liability for the
Obligations of all of the Borrowers hereunder and under the other Loan Documents
in consideration of the financial accommodations to be provided by the
Administrative Agent and the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in consideration
of the undertakings of each other Borrower to accept joint and several liability
for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers with respect to the payment
and performance of all of the Obligations (including, without limitation, any
Obligations arising under this ss.5.11), it being the intention of the parties
hereto that all of the Obligations shall be the joint and several Obligations of
each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such
event the other Borrowers will make such payment with respect to, or perform,
such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of
this ss.5.11 constitute full recourse Obligations of each of the Borrowers
enforceable against each such Borrower to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement,
each of the Borrowers, to the fullest extent permitted by applicable law, hereby
waives notice of acceptance of its joint and several liability, notice of any
Loans made under this Credit Agreement, notice of any action at any time taken
or omitted by the Administrative Agent or the Lenders under or in respect of any
of the Obligations, and, generally, to the extent permitted by applicable law,
all demands, notices and other formalities of every kind in connection with this
Credit Agreement. Each of the Borrowers, to the fullest extent permitted by
applicable law, hereby waives all defenses which may be available by virtue of
any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshaling of assets of the Borrowers and any
other Person primarily or secondarily liable with respect to any of the
Obligations and all suretyship defenses generally. Each of the Borrowers, to the
fullest extent permitted by applicable law, hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of the
Obligations, the acceptance of any payment of any of the Obligations, the
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acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Lenders at any time or times in respect of any default by
any of the Borrowers in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other indulgences
whatsoever by the Lenders in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers. Without limiting the
generality of the foregoing, each of the Borrowers assents to any other action
or delay in acting or failure to act on the part of the Lenders with respect to
the failure by any of the Borrowers to comply with any of its respective
Obligations, including, without limitation, any failure strictly or diligently
to assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder, which might, but for the provisions of this
ss.5.11, afford grounds for terminating, discharging or relieving any of the
Borrowers, in whole or in part, from any of its Obligations under this ss.5.11,
it being the intention of each of the Borrowers that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of such Borrowers
under this ss.5.11 shall not be discharged except by performance and then only
to the extent of such performance. The Obligations of each of the Borrowers
under this ss.5.11 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation, re-construction or similar
proceeding with respect to any of the Borrowers, the Administrative Agent or the
Lenders. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any of the Borrowers, the Administrative
Agent or the Lenders.
(f) To the extent any Borrower makes a payment hereunder in excess of
the aggregate amount of the benefit received by such Borrower in respect of the
extensions of credit under the Credit Agreement (the "Benefit Amount"), then
such Borrower, after the payment in full, in cash, of all of the Obligations,
shall be entitled to recover from each other Borrower such excess payment, pro
rata, in accordance with the ratio of the Benefit Amount received by each such
other Borrower to the total Benefit Amount received by all Borrowers, and the
right to such recovery shall be deemed to be an asset and property of such
Borrower so funding; provided, that each of the Borrowers hereby agrees that it
will not enforce any of its rights of contribution or subrogation against the
other Borrowers with respect to any liability incurred by it hereunder or under
any of the other Loan Documents, any payments made by it to any of the Lenders
or the Administrative Agent with respect to any of the Obligations or any
collateral security therefor until such time as all of the Obligations have been
irrevocably paid in full in cash. Any claim which any Borrower may have against
any other Borrower with respect to any payments to the Lenders or the
Administrative Agent hereunder or under any other Loan Document are hereby
expressly made subordinate and junior in right of payment, without limitation as
to any increases in the Obligations arising hereunder or thereunder, to the
prior payment in full of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its
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debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any other
Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts
due with respect to the Indebtedness owing by any Borrower to any other Borrower
is hereby subordinated to the prior payment in full in cash of the Obligations.
Each Borrower hereby agrees that after the occurrence and during the continuance
of any Default or Event of Default, such Borrower will not demand, xxx for or
otherwise attempt to collect any such Indebtedness of any other Borrower owing
to such Borrower until the Obligations shall have been paid in full in cash. If,
notwithstanding the foregoing sentence, such Borrower shall collect, enforce or
receive any amounts in respect of such Indebtedness before payment in full in
cash of the Obligations, such amounts shall be collected, enforced, received by
such Borrower as trustee for the Administrative Agent and be paid over to the
Administrative Agent for the pro rata accounts of the Lenders (in accordance
with each such Lender's Revolving Credit Commitment Percentage and Term Loan
Percentage) to be applied to repay (or be held as security for the repayment of)
the Obligations.
(h) The provisions of this ss.5.11 are made for the benefit of the
Administrative Agent and the Lenders and their successors and assigns, and may
be enforced in good faith by them from time to time against any or all of the
Borrowers as often as the occasion therefor may arise and without requirement on
the part of the Administrative Agent or the Lenders first to marshal any of
their claims or to exercise any of their rights against any other Borrower or to
exhaust any remedies available to them against any other Borrower or to resort
to any other source or means of obtaining payment of any of the Obligations
hereunder or to elect any other remedy. The provisions of this ss.5.11 shall
remain in effect until all of the Obligations shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Administrative Agent or the Lenders upon the
insolvency, bankruptcy or reorganization of any of the Borrowers or is repaid in
good faith settlement of a pending or threatened avoidance claim, or otherwise,
the provisions of this ss.5.11 will forthwith be reinstated in effect, as though
such payment had not been made.
(i) It is the intention and agreement of the Borrowers and the Lenders
that the obligations of the Borrowers under this Credit Agreement shall be valid
and enforceable against the Borrowers to the maximum extent permitted by
applicable law. Accordingly, if any provision of this Credit Agreement creating
any obligation of the Borrowers in favor of the Lenders shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Borrowers and the Lenders that any balance of the
obligation created by such provision and all other obligations of the Borrowers
to the Lenders created by other provisions of this Credit Agreement shall remain
valid and enforceable. Likewise, if by final order a court of competent
jurisdiction shall declare any sums which the Lenders may be otherwise entitled
to collect from the Borrowers under this Credit Agreement to be in excess of
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those permitted under any law (including any federal or state fraudulent
conveyance or like statute or rule of law) applicable to the Borrowers'
obligations under this Credit Agreement, it is the stated intention and
agreement of the Borrowers and the Lenders that all sums not in excess of those
permitted under such applicable law shall remain fully collectible by the
Lenders from the Borrowers.
SS.5.12. INTEREST LIMITATION. Notwithstanding any other term of this
Credit Agreement or any other document referred to herein, the maximum amount of
interest which may be charged to or collected from any person liable hereunder
by any Lender shall be absolutely limited to, and shall in no event exceed, the
maximum amount of interest which could lawfully be charged or collected under
applicable law (including, to the extent applicable, the provisions of Section
5197 of the Revised Statutes of the United States of America, as amended, 12
U.S.C. Section 85, as amended), so that the maximum of all amounts constituting
interest under applicable law, howsoever computed, shall never exceed as to any
Person liable therefor such lawful maximum, and any term of this Credit
Agreement, the Letter of Credit Applications, or any other document referred to
herein or therein which could be construed as providing for interest in excess
of such lawful maximum shall be and hereby is made expressly subject to and
modified by the provisions of this paragraph.
6. COLLATERAL SECURITY.
-------------------
The Obligations shall be secured by a perfected first priority security
interest (subject only to Permitted Liens entitled to priority under applicable
law) in all of the assets of the Borrowers (other than motor vehicles and real
estate), whether now owned or hereafter acquired, including but not limited to a
pledge of one hundred percent (100%) of the equity interests (or 65% of the
equity interests in the case of a foreign Subsidiary) of each of the Parent's
direct and indirect Subsidiaries, pursuant to the terms of the Security
Documents to which the Borrowers are a party. The Borrowers hereby agree that
upon notice from the Administrative Agent and the Required Lenders, they shall,
as promptly as practicable, but in any event within sixty (60) days, deliver
titles to motor vehicles and mortgages on Real Estate and environmental site
assessments for mortgaged Real Estate and take such other steps as may be
reasonably requested (including, without limitation, the delivery of legal
opinions and title insurance) so as to provide the Lenders with a first priority
security interest in such assets.
7. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrowers represent and warrant to the Lenders and the
Administrative Agent as follows:
7.1. CORPORATE AUTHORITY.
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7.1.1. INCORPORATION; GOOD STANDING. Each of the Borrowers (a)
is a corporation (or similar business entity) duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation, (b) has all requisite corporate (or the
equivalent company) power to own its property and conduct its business
as now conducted and as presently contemplated, and (c) is in good
standing as a foreign corporation (or similar business entity) and is
duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a Material Adverse Effect.
7.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which any
Borrower is or is to become a party and the transactions contemplated
hereby and thereby (a) are within the corporate (or the equivalent
company) authority of such Person, (b) have been duly authorized by all
necessary corporate (or the equivalent company) proceedings, (c) do not
and will not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which any
Borrowers is subject or any judgment, order, writ, injunction, license
or permit applicable to such Borrower and (d) do not conflict with any
provision of the Governing Documents of, or any agreement or other
instrument binding upon, such Borrower.
7.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which any Borrower is
or is to become a party will result in valid and legally binding
obligations of such Person 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.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrowers of this Credit Agreement and the other Loan Documents to which any
Borrower is or is to become a party and the transactions contemplated hereby and
thereby do not require the approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
7.3. TITLE TO PROPERTIES; LEASES. Except as indicated on Schedule 7.3
hereto, the Borrowers own all of the assets reflected in the consolidated
balance sheet of the Borrowers as at the Interim Balance Sheet Date or acquired
since that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no Liens or other
rights of others, except Permitted Liens.
7.4. FINANCIAL STATEMENTS AND PROJECTIONS.
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7.4.1. FISCAL YEAR. Each of the Borrowers has a fiscal year
which is the twelve (12) months ending on December 31 of each calendar
year.
7.4.2. FINANCIAL STATEMENTS. There has been furnished to each
of the Lenders (a) consolidated balance sheets of the Borrowers as at
the Balance Sheet Date and the Interim Balance Sheet Date, (b)
consolidated statements of income of the Borrowers for the fiscal year
2002 and for the fiscal quarters ending March 31, 2003 and June 30,
2003 and (c) balance sheet and statement of income of Seneca Xxxxxxx
for the year ended December 31, 2002, certified by the Accountants.
Such balance sheets and statements of income have been prepared in
accordance with GAAP and fairly present the financial condition of the
Borrowers as at the close of business on the date thereof and the
results of operations for the fiscal year then ended. There are no
contingent liabilities of any Borrower as of such date involving
material amounts, known to the officers of such Borrower, which were
not disclosed in such balance sheet and the notes related thereto.
7.4.3. SOLVENCY. The Borrowers (both before and after giving
effect to the transactions contemplated by this Credit Agreement,
including the Seneca Xxxxxxx Acquisition) are and will be 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.
7.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Interim Balance Sheet
Date there has been no event or occurrence which has had a Material Adverse
Effect. Since the Interim Balance Sheet Date, no Borrower has made any
Distribution.
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrowers
possesses all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
its business substantially as now conducted without known conflict with any
rights of others.
7.7. LITIGATION. Except as set forth in Schedule 7.7 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrowers before any Governmental Authority, that, (a) if
adversely determined, might, either in any case or in the aggregate, (i) have a
Material Adverse Effect or (ii) materially impair the right of the Borrowers,
considered as a whole, to carry on business substantially as now conducted by
them, or result in any substantial liability not adequately covered by
insurance, or for which adequate reserves are not maintained on the consolidated
balance sheet of the Borrowers, or (b) which question the validity of this
Credit Agreement or any of the other Loan Documents, or any action taken or to
be taken pursuant hereto or thereto.
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrowers is
subject to any Governing Document or other legal restriction, or any judgment,
decree, order, law, statute, rule or regulation that has or is expected in the
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future to have a Material Adverse Effect. None of the Borrowers is a party to
any contract or agreement that has or is expected, in the judgment of the
Borrowers' officers, to have any Material Adverse Effect.
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrowers is in violation of any provision of its Governing Documents, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or have a Material Adverse Effect.
7.10. TAX STATUS. The Borrowers (a) have made or filed all federal,
state and foreign income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (b) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (c) 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.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and none of the officers of the Borrowers know of
any basis for any such claim. Unless otherwise disclosed in accordance with
ss.8.5.5, the Borrowers do not intend to treat the Loans, Letters of Credit
and/or related transactions hereunder as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4).
7.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrowers is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935; nor is it an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company Act of
1940.
7.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on any assets or property
of the Borrowers or any rights relating thereto.
7.14. PERFECTION OF SECURITY INTEREST. All filings, assignments,
pledges and deposits of documents or instruments have been made and all other
actions have been taken that are necessary or advisable, under applicable law,
to establish and perfect the Administrative Agent's security interest in the
Collateral. The Collateral and the Administrative Agent's rights with respect to
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the Collateral are not subject to any setoff, claims, withholdings or other
defenses. The Borrowers are the owners of the Collateral free from any Lien,
except for Permitted Liens.
7.15. CERTAIN TRANSACTIONS. Except as set forth on Schedule 7.15 hereto
and for arm's length transactions pursuant to which any Borrower makes payments
in the ordinary course of business upon terms no less favorable than such
Borrower could obtain from third parties, none of the officers, directors, or
employees of such Borrower is presently a party to any transaction with such
Borrower (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 such Borrower, 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.
7.16. EMPLOYEE BENEFIT PLANS.
7.16.1. IN GENERAL. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance
in all material respects with the provisions of ERISA and all
Applicable Pension Legislation and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting
prohibited transactions and the bonding of fiduciaries and other
persons handling plan funds as required by ss.412 of ERISA. The
Borrowers have heretofore delivered to the Administrative Agent the
most recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
7.16.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. The Borrowers 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 Borrowers without liability to any Person other than for claims
arising prior to termination.
7.16.3. 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 ss.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, and none of the Borrowers or any ERISA Affiliate is
obligated to or has posted security in connection with an amendment to
a Guaranteed Pension Plan pursuant to ss.307 of ERISA or ss.401(a)(29)
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of the Code. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the
Borrowers or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Reportable Event (other than an
ERISA Reportable Event as to which the requirement of 30 days notice
has been waived), 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 ss.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.
7.16.4. MULTIEMPLOYER PLANS. None of the Borrowers or 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
ss.4201 of ERISA or as a result of a sale of assets described in
ss.4204 of ERISA. None of the Borrowers or any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
7.17. USE OF PROCEEDS.
7.17.1. GENERAL. The proceeds of the Loans shall be used
solely (a) to refinance the Indebtedness under the Prior Credit
Agreement; (b) to finance the Seneca Xxxxxxx Acquisition and
acquisitions permitted pursuant to ss.9.5.1; and (c) for capital
expenditures, working capital and general corporate purposes. The
Borrowers will use Letters of Credit solely for working capital and
general corporate purposes.
7.17.2. REGULATIONS U AND X. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for the
purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.17.3. INELIGIBLE SECURITIES. No portion of the proceeds of
any Loans is to be used, and no portion of any Letter of Credit is to
be obtained, for the purpose of knowingly purchasing, or providing
credit support for the purchase of, during the underwriting or
placement period or within thirty (30) days thereafter, any Ineligible
Securities underwritten or privately placed by a Financial Affiliate.
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7.18. ENVIRONMENTAL COMPLIANCE. The Borrowers have taken all necessary
steps to investigate the past and present condition and usage of the Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, has determined that, except as set forth on Schedule 7.18 hereto:
(a) none of the Borrowers or De Minimis Subsidiaries or any
operator of the Real Estate or any operations thereon is in violation,
or alleged violation, of any judgment, decree, order, law, 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 state, local or foreign law, statute,
regulation, ordinance, order or decree relating to health, safety or
the environment (hereinafter "Environmental Laws"), which violation
would have a Material Adverse Effect;
(b) none of the Borrowers has received notice from any third
party including, without limitation, any 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. ss.6903(5), any hazardous substances as
defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ss.9601(33) and any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which any one of them has
generated, transported or disposed of has been found at any site at
which a Governmental Authority has conducted or has ordered that the
Borrowers 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, or
legal or administrative proceeding (in each case, contingent or
otherwise) 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) Except where no Material Adverse Effect would be created,
(i) no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank
or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; (ii) in the course of any
activities conducted by the Borrowers or operators of its properties,
no Hazardous Substances have been generated or are being used on the
Real Estate except in accordance with applicable Environmental Laws;
(iii) there have been no Releases or threatened Releases of Hazardous
Substances on, upon, into or from the properties of the Borrowers,
which Releases would have a material adverse effect on the value of any
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of the Real Estate or adjacent properties; (iv) to the best of the
Borrowers' knowledge, there have been no Releases on, upon, from or
into any real property in the vicinity of any of the Real Estate which,
through soil or groundwater contamination, may have come to be located
on, and which would have a material adverse effect on the value of, the
Real Estate; and (v) in addition, any Hazardous Substances that have
been generated on any of the Real Estate have been transported offsite
only by carriers having an identification number issued by the EPA (or
the equivalent thereof in any foreign jurisdiction), 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
Borrowers' knowledge, operating in compliance with such permits and
applicable Environmental Laws; and
(d) none of the Borrowers or any of the other Real Estate is
subject to any applicable Environmental Law requiring the performance
of Hazardous Substances site assessments, or the removal or remediation
of Hazardous Substances, or the giving of notice to any Governmental
Authority or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a
condition to the effectiveness of any other transactions contemplated
hereby.
7.19. SUBSIDIARIES, ETC. Schedule 2 hereto sets forth a complete and
accurate list of the Subsidiaries of the Parent, including the name of each such
Subsidiary and its jurisdiction of incorporation, together with the number of
authorized and outstanding shares of each such Subsidiary. Each Subsidiary
listed on Schedule 2 is wholly owned by the Parent or by a Subsidiary of the
Parent and is a Borrower hereunder, one hundred percent (100%) of the Capital
Stock (or in the case of a foreign Subsidiary, 65% of the Capital Stock) of
which has been pledged to the Administrative Agent on behalf of the Lenders
pursuant to the Stock Pledge Agreement, the Membership Pledge Agreement or the
Pledge Agreement. Each of the Borrowers has good and marketable title to all of
the shares it purports to own of the Capital Stock of each of its Subsidiaries,
free and clear in each case of any Lien. All such Capital Stock have been duly
issued and are fully paid and non-assessable. None of the Borrowers is engaged
in any joint venture or partnership with any other Person.
7.20. DISCLOSURE. Neither this Credit Agreement nor any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to the Borrowers in the case of any document or
information not furnished by it or any of its Subsidiaries) necessary in order
to make the statements herein or therein not misleading. There is no fact known
to the Borrowers which has a Material Adverse Effect, or which is reasonably
likely in the future to have a Material Adverse Effect, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
7.21. CAPITALIZATION.
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(a) Capital Stock. As of the date hereof, (i) the authorized Capital
Stock of the Parent consists of (A) 4,050,000 shares of common stock (par value
$0.01 per share), 3,600,000 shares of which is Class A voting common stock and
450,000 shares of which is Class B non-voting common stock, and (B) 252,100
shares of preferred stock; (ii) the issued and outstanding Capital Stock of the
Parent consists of (A) 142,000 shares of Class A voting common stock, (B)
112,981 shares of Class B non-voting common stock, (C) 32,000 shares of Series A
Convertible Preferred Stock, (D) 20,100 shares of Series B Convertible Preferred
Stock, (E) 55,000 shares of Series C Convertible Preferred Stock, (F) 55,000
shares of Series D Convertible Preferred Stock, and (G) 55,000 shares of Series
E Convertible Preferred Stock. All such outstanding shares have been duly issued
and are fully paid and non-assessable.
(b) Options, Etc. Except as set forth on Schedule 7.21, no Person has
outstanding any rights (either preemptive or otherwise) or options (except for
the options for common stock issued to employees in accordance with a bona fide
option plan approved by the Board of Directors of the Parent) to subscribe for
or purchase from the Borrowers, or any warrants or other agreements providing
for or requiring the issuance by the Borrowers of, any capital stock or any
securities convertible into or exchangeable for its capital stock.
7.22. FOREIGN ASSETS CONTROL REGULATIONS, ETC. None of the requesting
or borrowing of the Loans, the requesting or issuance, extension or renewal of
any Letters of Credit or the use of the proceeds of any thereof will violate the
Trading With the Enemy Act (50 U.S.C. ss. 1 et seq., as amended) (the "Trading
With the Enemy Act") or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
(the "Foreign Assets Control Regulations") or any enabling legislation or
executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
"Executive Order") and (b) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56)). Furthermore, neither the Borrowers nor any of their
Subsidiaries or other Affiliates (a) is or will become a "blocked person" as
described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages or will engage in any dealings or
transactions, or be otherwise associated, with any such "blocked person".
7.23. OBLIGATIONS CONSTITUTE "SENIOR INDEBTEDNESS". The Obligations of
the Borrowers hereunder are and will continue to be "Senior Indebtedness" under
and as defined in the 2002 Senior Note Indenture.
7.24. GUARANTEES OF DE MINIMIS SUBSIDIARIES. Except as permitted under
ss.9.1 and ss.9.3, no Borrower has executed a guarantee with respect to
Indebtedness incurred by a De Minimis Subsidiary, and no De Minimis Subsidiary
has guaranteed any Subordinated Debt.
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8. AFFIRMATIVE COVENANTS.
---------------------
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
8.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Fees and all other amounts provided
for in this Credit Agreement and the other Loan Documents to which the Borrowers
are party, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.
8.2. MAINTENANCE OF OFFICE. Each of the Borrowers will maintain its
chief executive office at 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx
00000, or at such other place in the United States of America as such Borrower
shall designate upon thirty (30) days' prior written notice to the
Administrative Agent, where notices, presentations and demands to or upon such
Borrower in respect of the Loan Documents to which such Borrower is a party may
be given or made.
8.3. RECORDS AND ACCOUNTS. Each of the Borrowers will (a) keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with GAAP, (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves, and (c) at all times engage the
Accountants and will not permit more than thirty (30) days to elapse between the
cessation of such Accountants as the independent certified public accountants of
the Borrowers and the appointment in such capacity of a successor firm as shall
be satisfactory to the Administrative Agent.
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrowers
will deliver to the Administrative Agent and the Lenders:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrowers,
the consolidated and consolidating balance sheets of the Borrowers,
each as at the end of such year, and the related consolidated and
consolidating statements of income, statements of cash flow, and
statements of operations for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
consolidated and consolidating statements to be in reasonable detail,
prepared in accordance with GAAP, and certified, without qualification
and without an expression of uncertainty as to the ability of the
Borrowers to continue as going concerns, by the Accountants, together
with an annual budget and projections prepared by the CFO for the next
fiscal year in form and substance satisfactory to the Administrative
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Agent. In addition, simultaneously therewith, the Borrowers shall use
their best efforts to provide the Lenders with a written statement from
such accountants to the effect that they have read a copy of this
Credit 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; provided that such
Accountants shall not be liable to the Lenders for failure to obtain
knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
the Borrowers, copies of the unaudited consolidated and consolidating
balance sheets and statements of operations of the Borrowers, each as
at the end of such quarter, and the related consolidated and
consolidating statements of cash flow for the portion of the Borrowers'
fiscal year then elapsed, all in reasonable detail and prepared in
accordance with GAAP, together with a certification by the CFO that the
information contained in such financial statements fairly presents the
financial position of the Borrowers on the date thereof (subject to
year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the CFO in substantially the form of Exhibit C hereto (a
"Compliance Certificate") and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in
ss.ss.8, 9 and 10 and (if applicable) reconciliations to reflect
changes in GAAP since the Interim Balance Sheet Date;
(d) as soon as practicable, but in any event not later than
fifteen (15) days prior to the commencement of each fiscal year of the
Borrowers, a copy of the annual budget, projections, business plan and
divisional profit and loss statements for the Borrowers for such fiscal
year;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the stockholders of any Borrower;
(f) from time to time upon request of the Administrative
Agent, projections of the Borrowers updating those projections
delivered to the Lenders and referred to in ss.7.4.3 or, if applicable,
updating any later such projections delivered in response to a request
pursuant to this ss.8.4(g); and
(g) from time to time such other financial data and
information (including accountants' management letters) as the
Administrative Agent or any Lender may reasonably request.
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The Borrowers hereby authorize the Lenders to disclose any information
obtained pursuant to this Credit Agreement to all appropriate governmental
regulatory authorities where required by law; provided however, that the Lenders
shall, to the extent practicable and allowable under law, notify the Borrowers
within a reasonable period prior to the time any such disclosure is made; and
provided further, this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Lenders of any such information which
any Borrower has or may have under the federal Right to Financial Privacy Act of
1978, as in effect from time to time.
8.5. NOTICES.
8.5.1. DEFAULTS. The Borrowers will promptly notify the
Administrative Agent and each of the Lenders in writing of the
occurrence of any Default or Event of Default, together with a
reasonably detailed description thereof, and the actions the Borrowers
propose to take with respect thereto. 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 Credit
Agreement or any other note, evidence of Indebtedness, indenture or
other obligation to which or with respect to which any Borrower is a
party or obligor in excess of $1,000,000, whether as principal,
guarantor, surety or otherwise, the Borrowers shall forthwith give
written notice thereof to the Administrative Agent and each of the
Lenders, describing the notice or action and the nature of the claimed
default.
8.5.2. ENVIRONMENTAL EVENTS. The Borrowers will promptly
notify the Administrative Agent and each of the Lenders, (i) upon any
Borrower obtaining knowledge of any violation of any Environmental Law
regarding the Real Estate or any Borrower's operations, which violation
could have a Material Adverse Effect; (ii) upon any Borrower obtaining
knowledge of any potential or known Release or threat of Release of any
Hazardous Substance at, from, or into the Real Estate which it reports
in writing or is reportable by it in writing to any governmental
authority which could have a Material Adverse Effect; (iii) upon any
Borrower's receipt of any notice of violation of any Environmental Laws
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 without limitation any Governmental
Authority) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) any
Borrower's, or any Person's operation of the Real Estate, (B)
contamination on, from or into the Real Estate, or (C) investigation or
remediation of offsite locations at which any Borrower, or any of their
predecessors is alleged to have directly or indirectly Disposed of
Hazardous Substances, which could have a Material Adverse Effect; or
(iv) upon any Borrower obtaining knowledge that any expense or loss has
been incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any Hazardous
Substances with respect to which a lien may be imposed on the Real
Estate.
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8.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL. The Borrowers
will, immediately upon becoming aware thereof, notify the
Administrative Agent and each of the Lenders in writing of any setoff,
claims (including, with respect to the Real Estate, environmental
claims), withholdings or other defenses to which any of the Collateral,
or the Administrative Agent's rights with respect to the Collateral,
are subject.
8.5.4. NOTICE OF LITIGATION AND JUDGMENTS. Each of the
Borrowers will give notice to the Administrative Agent and each of the
Lenders in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrowers or to which any
Borrower is or becomes a party involving an uninsured claim against any
Borrower that could reasonably be expected to have a Material Adverse
Effect on the Borrowers and stating the nature and status of such
litigation or proceedings. Each of the Borrowers will give notice to
the Administrative Agent and each of the Lenders, in writing, in form
and detail satisfactory to the Administrative Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise,
against the Borrowers in an amount in excess of $1,000,000.
8.5.5. NOTICES CONCERNING TAX TREATMENT. In the event that any
of the Borrowers determine to take any action inconsistent with its
intention to not treat the Loans, Letters of Credit and/or related
transactions hereunder as a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), it will promptly
notify the Administrative Agent in writing thereof and will provide the
Administrative Agent with a duly completed copy of IRS Form 8886 or any
successor form. The Borrowers acknowledge that the Administrative Agent
and/or one or more of the Lenders may treat its Loans and Letter of
Credit Participations as part of a transaction that is subject to
Treasury Regulation Section 1.6011-4 or Section 301.6112-1, and the
Administrative Agent and such Lender or Lenders, as applicable, will
file such IRS forms and maintain such lists and other records as they
may determine is required by such Treasury Regulations.
8.6. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES. Except where the
failure of any Borrower to remain so qualified could not reasonably be expected
to result in a Material Adverse Effect, the Borrowers will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence, rights and franchises and those of its Subsidiaries. Each of
the Borrowers (i) will cause all of its properties and those of its Subsidiaries
used or useful in the conduct of its business or the business of its
Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrowers may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (iii) will continue to engage primarily in the businesses now
conducted by them and in related businesses; provided that nothing in this
ss.8.6 shall prevent the Borrowers from discontinuing the operation and
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maintenance of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrowers, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect.
8.7. INSURANCE.
Each of the Borrowers will maintain with financially sound and
reputable insurers insurance with respect to its properties and business against
such casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such amount, in such forms and
for such periods as may be reasonable and prudent and in accordance with the
terms of the Security Agreements, but in no event less than the amounts and
coverages set forth on Schedule 8.7 hereto. In addition, the Borrowers will
furnish from time to time, upon the Administrative Agent's request, a summary of
the insurance coverage of each of the Borrowers, which summary shall be in form
and substance satisfactory to the Administrative Agent and, if requested by the
Administrative Agent, will furnish to the Administrative Agent copies of the
applicable policies naming the Administrative Agent as loss payee and/or
additional insured (as applicable) thereunder.
8.8. TAXES. Each of the Borrowers will duly pay and discharge, or cause
to be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it and its Real Estate,
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a Lien or charge upon any of its property; provided
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 such Borrower shall have set aside on its books
adequate reserves with respect thereto; and provided further that such Borrower
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any Lien that may have attached as
security therefor.
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
8.9.1. GENERAL. The Borrowers shall permit the Lenders,
through the Administrative Agent or any of the Lenders' other
designated representatives, to visit and inspect any of the properties
of the Borrowers, to examine the books of account of the Borrowers (and
to make copies thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Borrowers with, and to be advised
as to the same by, its and their officers, all at such reasonable times
and intervals as the Administrative Agent or any Lender may reasonably
request.
8.9.2. COMMUNICATIONS WITH ACCOUNTANTS. The Borrowers
authorize the Administrative Agent and, if accompanied by the
Administrative Agent, the Lenders to communicate directly with the
Accountants and authorizes such Accountants to disclose to the
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Administrative Agent and the Lenders any and all financial statements
and other supporting financial documents and schedules including copies
of any management letter with respect to the business, financial
condition and other affairs of the Borrowers. At the request of the
Administrative Agent, the Borrowers shall deliver a letter addressed to
such Accountants instructing them to comply with the provisions of this
ss.8.9.2.
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each of
the Borrowers will and will cause the De Minimis Subsidiaries to comply with (a)
the applicable laws and regulations wherever its business is conducted,
including all Environmental Laws, (b) the provisions of its Governing Documents,
(c) all agreements and instruments by which it or any of its properties may be
bound and (d) except where noncompliance would not have a Material Adverse
Effect, all applicable laws, orders, decrees, orders, judgments, licenses and
permits, including without limitation all environmental permits. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that any Borrower may fulfill any of its obligations hereunder or any of the
other Loan Documents to which such Borrower is a party, the Borrower will
immediately take or cause to be taken all reasonable steps within the power of
such Borrower to obtain such authorization, consent, approval, permit or license
and furnish the Administrative Agent and the Lenders with evidence thereof.
8.11. EMPLOYEE BENEFIT PLANS. The Borrowers will (a) promptly upon
filing the same with the Department of Labor or Internal Revenue Service upon
request of the Administrative Agent, furnish to the Administrative Agent a copy
of the most recent actuarial statement required to be submitted under ss.103(d)
of ERISA and Annual Report, Form 5500, with all required attachments, in respect
of each Guaranteed Pension Plan, (b) promptly upon receipt or dispatch, furnish
to the Administrative Agent any notice, report or demand sent or received in
respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042, 4043, 4063,
4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under
ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA and (c) promptly furnish to the
Administrative Agent a copy of all actuarial statements required to be submitted
under all Applicable Pension Legislation.
8.12. USE OF PROCEEDS. The Borrowers will use the proceeds of the Loans
and obtain Letters of Credit solely for the purposes set forth in ss.7.17.
8.13. INTEREST RATE PROTECTION. The Borrowers will have within ninety
(90) days of the Closing Date, and shall maintain at all times, a minimum
aggregate amount of not less than fifty percent (50%) of the notional amount of
Consolidated Total Funded Debt as of the Closing Date on a fixed rate long term
basis (whether through Swap Contracts or as a result of having a fixed rate of
interest by its terms) on terms and conditions reasonably acceptable to the
Administrative Agent.
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8.14. NEW BORROWERS. Any newly-created or acquired Subsidiary (other
than De Minimis Subsidiaries) shall become a Borrower hereunder on or before the
tenth (10th) Business Day after the end of the calendar month in which such
Subsidiary was created or acquired or such earlier date as the Administrative
Agent may, in its sole discretion, require but no earlier than the tenth (10th)
Business Day after the date of the creation or acquisition of such Subsidiary
and become a party to the Security Documents by (i) signing a joinder agreement
in substantially the form attached hereto as Exhibit D (the "Joinder
Agreement"), (ii) signing allonges to the Notes and (iii) providing such other
documentation as the Administrative Agent may reasonably request, including,
without limitation, documentation with respect to the conditions specified in
ss.11 hereof, and one hundred percent (100%) of the Capital Stock (or in the
case of a foreign Subsidiary, 65% of the Capital Stock) and assets (excluding
motor vehicles and real estate) of such new Subsidiaries shall be pledged to the
Administrative Agent for the benefit of the Lenders. In such event, the
Administrative Agent is hereby authorized by the parties to update Schedule 2 to
include such new Subsidiary.
8.15. SUBSIDIARIES. The Parent shall at all times directly or
indirectly through a Subsidiary own all of the shares of the Capital Stock of
each Subsidiary of the Parent.
8.16. CLOSURE AND POST CLOSURE LIABILITIES. The Borrowers shall at all
times adequately accrue, in accordance with GAAP and as required by applicable
Environmental Laws, all closure and post closure liabilities with respect to the
operations of the Borrowers.
8.17. FURTHER ASSURANCES. Each of the Borrowers will cooperate with the
Lenders and the Administrative Agent and execute such further instruments and
documents as the Lenders or the Administrative Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
8.18. ENVIRONMENTAL INDEMNIFICATION. THE BORROWERS COVENANT AND AGREE
THAT THEY WILL INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT AND THE LENDERS
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSE, DAMAGE, LOSS OR LIABILITY
INCURRED BY THE ADMINISTRATIVE AGENT OR THE LENDERS (INCLUDING ALL COSTS OF
LEGAL REPRESENTATION) RELATING TO (A) ANY RELEASE OR THREATENED RELEASE OF
HAZARDOUS SUBSTANCES ON THE REAL ESTATE; (B) ANY VIOLATION OF ANY ENVIRONMENTAL
LAWS WITH RESPECT TO CONDITIONS AT THE REAL ESTATE OR THE OPERATIONS CONDUCTED
THEREON; OR (C) THE INVESTIGATION OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH
THE BORROWERS OR THEIR PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY
DISPOSED OF HAZARDOUS SUBSTANCES. IT IS EXPRESSLY ACKNOWLEDGED BY THE BORROWERS
THAT THIS COVENANT OF INDEMNIFICATION SHALL INCLUDE CLAIMS, EXPENSE, DAMAGE,
LOSS OR LIABILITY INCURRED BY THE ADMINISTRATIVE AGENT OR THE LENDERS BASED UPON
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THE ADMINISTRATIVE AGENT'S OR THE LENDERS' NEGLIGENCE, AND THIS COVENANT SHALL
SURVIVE ANY FORECLOSURE OR ANY MODIFICATION, RELEASE OR DISCHARGE OF THE
SECURITY DOCUMENTS OR THE PAYMENT OF THE OBLIGATIONS AND SHALL INURE TO THE
BENEFIT OF THE ADMINISTRATIVE AGENT AND THE LENDERS, THEIR SUCCESSORS AND
ASSIGNS.
8.19. SENECA XXXXXXX FINANCIALS. The Borrowers shall deliver to the
Administrative Agent no later than October 17, 2003, the audited financial
statements of Seneca Xxxxxxx for the fiscal years ended December 31, 2000,
December 31, 2001 and December 31, 2002, in form and substance satisfactory to
the Administrative Agent.
8.20. RECEIPT OF PREFERRED STOCK PROCEEDS. The Administrative Agent
shall have received no later than November 15, 2003, evidence satisfactory to
the Administrative Agent that the Borrowers shall have received net new equity
proceeds from the issuance of the Series E Convertible Preferred Stock following
the Closing Date equal to at least $1,000,000 from Persons acceptable to the
Administrative Agent and on terms satisfactory to the Administrative Agent and
the Arranger.
9. CERTAIN NEGATIVE COVENANTS.
--------------------------
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligations to issue, extend or renew any Letters of Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS. No Borrower will become or be a
guarantor or surety of, or otherwise create, incur, assume, or be or remain
liable, contingently or otherwise (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 Indebtedness other than the following; provided
that no Event of Default shall have occurred and be continuing and such
Indebtedness is permitted by the 2002 Subordinated Note Indenture:
(a) Indebtedness to the Lenders and the Administrative Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services;
(c) Indebtedness incurred in connection with the acquisition
or lease financing of any real or personal property by such Borrower or
under any Capitalized Lease or Synthetic Lease, provided that the
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aggregate principal amount of such Indebtedness of the Borrowers shall
not exceed $20,000,000 at any one time;
(d) Indebtedness in respect of Swap Contracts entered into
pursuant to ss.8.13;
(e) Indebtedness existing on the date hereof and listed and
described on Schedule 9.1 hereto, together with any renewals,
extensions or refinancings thereof on terms which (i) do not increase
the principal amount thereunder, and (ii) are not materially different
than those in effect as of the date hereof; provided that no such
Indebtedness may be prepaid without prior written consent of the
Required Lenders;
(f) incurrence by any Borrower of guaranty, suretyship or
indemnification obligations in connection with such Borrower's
performance of services for its respective customers in the ordinary
course of its business;
(g) Indebtedness with respect to landfill closure bonds of the
Borrowers in an aggregate amount not to exceed $100,000,000;
(h) Indebtedness with respect to the L/C Supported IRBs;
(i) Unpaid accrued dividends with respect to the Series C
Convertible Preferred Stock, the Series D Convertible Preferred Stock
and Series E Convertible Preferred Stock to the extent treated as
Indebtedness under GAAP;
(j) Indebtedness of IESI MO Corporation with respect to
royalty payments secured by Liens permitted pursuant to ss.9.2.1(ix);
(k) Subordinated Debt permitted pursuant to ss.9.7;
(l) Indebtedness of the Borrowers under fuel price swaps, fuel
price caps, and fuel price collar or floor agreements, and similar
agreements or arrangements designed to protect against or manage
fluctuations in fuel prices with respect to fuel purchased in the
ordinary course of business of the Borrowers ("Fuel Derivatives
Obligations"), provided that the aggregate notional amount of such
agreements do not exceed $10,000,000 outstanding at any time, the
maturity of such agreements do not exceed thirty-six (36) months, and
the terms are consistent with past practices of the Borrowers; and
(m) Other unsecured Indebtedness in an aggregate amount not to
exceed $10,000,000.
9.2. RESTRICTIONS ON LIENS.
9.2.1. PERMITTED LIENS. The Borrowers will not and will not
permit the De Minimis Subsidiaries to (a) create or incur or suffer to
be created or incurred or to exist any Lien upon any of its property or
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assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) 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;
(c) 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; (d) suffer to exist for a
period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid
might by law or upon bankruptcy or insolvency, or otherwise, be given
any priority whatsoever over its general creditors; or (e) sell,
assign, pledge or otherwise transfer any "receivables" as defined in
clause (g) of the definition of the term "Indebtedness," with or
without recourse; provided that the Borrowers may create or incur or
suffer to be created or incurred or to exist:
(i) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue;
(ii) 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;
(iii) Liens on properties in respect of judgments or awards
that 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 such Borrower 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 Borrowers have maintained adequate reserves;
(iv) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens on properties, in existence less than
one hundred twenty (120) days from the date of creation thereof in
respect of obligations not overdue;
(v) encumbrances on Real Estate 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 and other minor Liens, provided that none
of such Liens (A) interferes materially with the use of the property
affected in the ordinary conduct of the business of the Borrowers, and
(B) individually or in the aggregate have a Material Adverse Effect;
(vi) Liens existing on the date hereof and listed on Schedule
9.2 hereto;
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(vii) purchase money or lease security interests in or
purchase money mortgages on real or personal property acquired or
leased after the date hereof to secure purchase money or lease
Indebtedness of the type and amount permitted by ss.9.1(c), incurred in
connection with the acquisition or lease of such property, which
security interests or mortgages cover only the real or personal
property so acquired or leased;
(viii) Liens in favor of the Administrative Agent for the
benefit of the Lenders and the Administrative Agent under the Security
Documents;
(ix) Liens on the real property contemplated for use as a
landfill in Washington County, Missouri to secure royalty payments to
be made by IESI MO Corporation to the former shareholders of WaCo
Landholding, Inc. in an amount not to exceed $8,000,000; and
(x) Liens, whether created by contract, law, regulation or
ordinance, securing Indebtedness permitted by ss.9.1(f), provided that
any security granted therefor is limited to (A) rights to payment
under, and use of equipment or related assets to perform, the contracts
to which such guaranty or suretyship obligations relate, and (B) other
Liens arising under the laws of suretyship.
9.2.2. RESTRICTIONS ON NEGATIVE PLEDGES AND UPSTREAM
LIMITATIONS. The Borrowers will not (a) enter into or permit to exist
any arrangement or agreement (excluding the Credit Agreement and the
other Loan Documents) which directly or indirectly prohibits any
Borrower from creating, assuming or incurring any Lien upon its
properties, revenues or assets whether now owned or hereafter acquired,
or (b) enter into any agreement, contract or arrangement (excluding the
Credit Agreement and the other Loan Documents) restricting the ability
of such Borrower to pay or make dividends or distributions in cash or
kind to any other Borrower, to make loans, advances or other payments
of whatsoever nature to such Borrower, or to make transfers or
distributions of all or any part of its assets to such Borrower; in
each case other than (i) restrictions on specific assets which assets
are the subject of purchase money security interests to the extent
permitted under ss.9.2.1, (ii) customary anti-assignment provisions
contained in leases and licensing agreements entered into by such
Borrower in the ordinary course of its business, and (iii) restrictions
contained in the 2002 Subordinated Note Indenture.
9.3. RESTRICTIONS ON INVESTMENTS. The Borrowers will not make or permit
to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by such Borrower;
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(b) demand deposits, certificates of deposit, bank acceptances
and time deposits of United States banks having total assets in excess
of $100,000,000;
(c) securities commonly known as "commercial paper" maturing
not more than nine (9) months from the date of issue and issued by a
corporation organized and existing under the laws of the United States
of America or any state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1" if rated by
Xxxxx'x, and not less than "A 1" if rated by S&P;
(d) Investments existing on the date hereof and listed on
Schedule 9.3 hereto;
(e) Investments associated with insurance policies required or
allowed by state law to be posted as financial assurance for landfill
closure and post-closure liabilities;
(f) Investments by any Borrower in any other Borrower;
(g) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $250,000 in the aggregate at
any time outstanding;
(h) Investments by any Borrower in connection with an
acquisition permitted by ss.9.5.1; and
(i) other Investments not otherwise permitted hereunder not to
exceed $10,000,000 in the aggregate at any time outstanding.
9.4. RESTRICTED PAYMENTS; AMENDMENTS TO DOCUMENTS. The Borrowers will
not make any Restricted Payments, except that any Borrower may make
Distributions to any other Borrower. The Borrowers shall not, without the prior
written consent of the Administrative Agent, effect or permit any change in or
amendment to any document or instrument pertaining to the terms of any
Borrower's (other than the Parent's) Capital Stock. The Parent shall not,
without the prior written consent of the Administrative Agent, effect or permit
any change in or amendment to any document or instrument pertaining to the terms
of the Parent's Capital Stock in any manner which would (a) create a mandatory
obligation to make any Distribution thereunder or (b) increase the amount of, or
accelerate the timing of, any obligation (other than stock issued in connection
with acquisitions permitted under ss.9.5.1 and stock issued under existing stock
option plans) of the Parent to make any Distribution thereunder or with respect
to any of its Capital Stock, or (c) otherwise adversely affect the rights of the
Lenders and the Administrative Agent. The Parent will, with respect to any
amendment not requiring the prior written consent of the Administrative Agent as
set forth above, (i) provide written notice of any such amendment to the
Administrative Agent at least seven (7) days prior to the proposed effective
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date of such amendment and (ii) deliver to the Administrative Agent a
certificate from the CFO, in form and substance satisfactory to the
Administrative Agent, certifying that such amendment shall not violate the
provisions of this ss.9.4.
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
9.5.1. MERGERS AND ACQUISITIONS. The Borrowers will not become
a party to any merger, amalgamation or consolidation, or agree to or
effect any asset acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of business consistent
with past practices) except as otherwise provided in this ss.9.5.1. Any
of the Borrowers may acquire the assets or stock of any other Borrower,
or may merge or consolidate with or into any other Borrower, provided
that, in the case of a merger or consolidation of the Parent and a
Borrower, the Parent shall be the surviving entity. Any of the
Borrowers may acquire all or substantially all of the assets or Capital
Stock of any Person, provided that:
(a) for Material Acquisitions, the Borrowers shall have
delivered to the Administrative Agent a Compliance Certificate
certifying they are in current compliance with and, giving effect to
the proposed acquisition (including any borrowings made or to be made
in connection therewith), will continue to be in compliance with all of
the covenants in ss.10 hereof on a pro forma historical combined basis
as if the transaction occurred on the first day of the period of
measurement;
(b) at the time of such acquisition, no Default or Event of
Default has occurred and is continuing, and such acquisition will not
otherwise create a Default or an Event of Default hereunder;
(c) the business to be acquired is predominantly in the same
lines of business as the Borrowers, or businesses reasonably related or
incidental thereto;
(d) the business to be acquired operates predominantly in the
continental United States or Canada;
(e) all of the assets to be acquired shall be owned by an
existing or newly created Subsidiary of the Parent which Subsidiary
shall be a Borrower, one hundred percent (100%) of the assets
(excluding motor vehicle equipment) and Capital Stock (or 65% of the
Capital Stock in the case of a foreign Subsidiary) of which have been
or, simultaneously with such acquisition, will be pledged to the
Administrative Agent on behalf of the Lenders (subject to Permitted
Liens) or, in the case of a stock or other equity interest acquisition,
the acquired company, simultaneously with such acquisition, shall
become a Borrower or shall be merged with and into a wholly owned
Subsidiary that is a Borrower and such newly acquired or created
Subsidiary shall otherwise comply with the provisions of ss.8.14
hereof;
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(f) for Material Acquisitions, not later than seven (7) days
prior to the proposed acquisition date, a copy of the purchase
agreement and financial projections, together with audited (if
available, or otherwise unaudited) financial statements for any
Subsidiary to be acquired or created for the preceding two (2) fiscal
years or such shorter period of time as such Subsidiary has been in
existence shall have been furnished to the Administrative Agent;
(g) for Material Acquisitions, not later than seven (7) days
prior to the proposed acquisition date, (i) a summary of the Borrowers'
results of their standard due diligence review, and (ii) in the case of
a landfill acquisition, including a review by a Consulting Engineer and
a copy of the Consulting Engineer's report shall have been furnished to
the Administrative Agent;
(h) cash consideration to be paid by such Borrower in
connection with any such acquisition or series of related acquisitions
(including the aggregate amount of all Indebtedness assumed or
incurred), shall not exceed $15,000,000 without the prior written
consent of the Administrative Agent and the Required Lenders;
(i) the board of directors and (if required by applicable law)
the shareholders, or the equivalent thereof, of the Person to be
acquired has approved such acquisition; and
(j) if such acquisition is made by a merger, a Borrower shall
be the surviving entity.
9.5.2. DISPOSITION OF ASSETS. The Borrowers will not become a
party to or agree to or effect any disposition of assets, other than
(a) the sale of inventory, the licensing of intellectual property and
the disposition of obsolete assets, in each case in the ordinary course
of business consistent with past practices, (b) a disposition of assets
from a Borrower to any other Borrower, (c) the sale or exchange of
routes which in the business judgment of the Borrowers does not have a
Material Adverse Effect, (d) assets with a fair market value of less
than $15,000,000 per year transferred in connection with an asset sale
or swap, which sale or swap in the business judgement of the Borrowers
does not have a Material Adverse Effect, and (e) assets with a fair
market value in excess of $15,000,000 per year transferred in
connection with an asset sale or swap, which sale or swap shall have
received the prior written approval of the Administrative Agent and the
Required Lenders.
9.6. SALE AND LEASEBACK. The Borrowers will not enter into any
arrangement, directly or indirectly, whereby a Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that such Borrower intends to use for substantially the
same purpose as the property being sold or transferred.
9.7. SUBORDINATED DEBT. The Borrowers will not:
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(a) create, incur, assume, guarantee or be or remain liable,
contingently or otherwise for Subordinated Debt in excess of $250,000,000
provided that prior to the incurrence of Subordinated Debt, the Borrowers shall
deliver a pro forma compliance certificate to the Administrative Agent
certifying as of the date of the incurrence of such Subordinated Debt, after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing; or
(b) amend, supplement or otherwise modify the terms of the Subordinated
Debt or prepay, redeem, repurchase or elect or take any action to discharge or
defease any of the Subordinated Debt; provided that this ss.9.7 shall not
restrict the right of the Parent to (i) amend the 2002 Subordinated Note
Indenture or the 2002 Subordinated Notes to extend the maturity thereof or amend
any terms therein so as to make such terms less restrictive on the Parent and
its Subsidiaries or (ii) make other immaterial amendments to the 2002
Subordinated Note Indenture or the 2002 Subordinated Notes which are not adverse
to the Administrative Agent or any of the Lenders; and provided, further, that
this ss.9.7 shall not restrict the ability of the Parent to exchange the
originally issued 2002 Subordinated Notes for registered notes (the "Exchange
Notes") in accordance with the terms of the 2002 Subordinated Note Indenture so
long as the terms of the Exchange Notes are no more restrictive on the Parent
and its Subsidiaries than the 2002 Subordinated Notes being exchanged.
9.8. EMPLOYEE BENEFIT PLANS. None of the Borrowers or any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of ss.406 of ERISA or ss.4975 of the Code which could result in a
material liability for the Borrowers, taken as a whole; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in ss.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 any Borrower pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to ss.307 of ERISA or
ss.401(a)(29) of the Code;
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of ss.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
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(f) permit or take any action which would contravene any
Applicable Pension Legislation.
9.9. BUSINESS ACTIVITIES. The Borrowers will not engage directly or
indirectly (whether through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by them on the Closing Date and in related
businesses.
9.10. FISCAL YEAR. The Borrowers will not change the date of the end of
their fiscal year from that set forth in ss.7.4.1.
9.11. TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule
9.11 hereto, the Borrowers will not engage in any transaction with any Affiliate
(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 such Affiliate or, to the
knowledge of the Borrowers, any corporation, partnership, trust or other entity
in which any such Affiliate has a substantial interest or is an officer,
director, trustee or partner, on terms more favorable to such Person than would
have been obtainable on an arm's-length basis in the ordinary course of
business.
9.12. NEW FRANCHISE AGREEMENTS. Following the Closing Date, the
Borrowers shall not enter into any Franchise Agreement with projected up-front
Capital Expenditures in excess of $5,000,000 without the consent of the
Administrative Agent and the Required Lenders.
10. FINANCIAL COVENANTS.
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The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
10.1. LEVERAGE RATIO. As at the end of any fiscal quarter, the Leverage
Ratio for the Reference Period then ended shall not exceed 4.50:1.00.
10.2. SENIOR LEVERAGE RATIO. As at the end of any fiscal quarter, the
Senior Leverage Ratio for the Reference Period then ended shall not exceed
3.00:1.00.
10.3. INTEREST COVERAGE. As at the end of any fiscal quarter referenced
in the table below, the ratio of (a) EBITDA for the Reference Period then ended
to (b) Consolidated Total Interest Expense for such Reference Period shall not
be less than the ratio set forth opposite such fiscal quarter in such table:
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------------------------------------------------------------------------ ------------------------
Fiscal Quarters Ending Ratio
------------------------------------------------------------------------ ------------------------
------------------------------------------------------------------------ ------------------------
Closing Date through 12/31/03 2.75:1.00
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3/31/04 through 6/30/04 3.00:1.00
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9/30/04 3.25:1.00
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12/31/04 and thereafter 3.50:1.00
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10.4. CONSOLIDATED NET WORTH. The Borrowers will not permit their
Consolidated Net Worth at any time to be less than the sum of (a) $165,375,000
plus (b) on a cumulative basis, one hundred percent (100%) of net proceeds of
any new equity offering (including equity issued pursuant to ss.11.9), plus (c)
fifty percent (50%) of positive Consolidated Net Income for each fiscal quarter
following June 30, 2003.
10.5. CAPITAL EXPENDITURES. The Borrowers will not make annual Capital
Expenditures (a) for the fiscal year ending December 31, 2003, in excess of 1.6
times the actual depreciation and landfill depletion expense for such fiscal
year, (b) for the fiscal year ending December 31, 2004, in excess of 1.3 times
the actual depreciation and landfill depletion expense for such fiscal year, (c)
for each of the fiscal years ending December 31, 2005 and December 31, 2006, in
excess of 1.2 times the actual depreciation and landfill depletion expense for
each such fiscal year, and (d) for each fiscal year ending thereafter, in excess
of 1.1 times the actual depreciation and landfill depletion expense for each
such fiscal year.
11. CLOSING CONDITIONS.
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The obligations of the Lenders to make the initial Revolving Credit
Loans and/or the Term Loan, as the case may be, and of the Administrative Agent
to issue any initial Letters of Credit shall be subject to the satisfaction of
the following conditions precedent:
11.1. LOAN DOCUMENTS.
Each of the Credit Agreement and the other Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to each of
the Lenders.
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS. The Administrative Agent
shall have received from each of the Borrowers a copy, certified by a duly
authorized officer of such Person to be true and complete on the Closing Date,
of each of its Governing Documents as in effect on such date of certification.
11.3. CORPORATE OR OTHER ACTION. All corporate (or other) action
necessary for the valid execution, delivery and performance by each of the
Borrowers of this Credit Agreement and the other Loan Documents to which such
Borrower is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Administrative Agent shall have been
provided to the Administrative Agent.
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11.4. INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received from each of the Borrowers an incumbency certificate, dated as of the
Closing Date, signed by a duly authorized officer of such Borrower, and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of such Person, each of the
Loan Documents to which such Person is or is to become a party; (b) to make Loan
Requests and Conversion Requests and to apply for Letters of Credit; and (c) to
give notices and to take other action on its behalf under the Loan Documents.
11.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
(except for Permitted Liens entitled to priority under applicable law) security
interest in and Lien upon the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Administrative Agent to protect and preserve such security interests shall have
been duly effected. The Administrative Agent shall have received evidence
thereof in form and substance satisfactory to the Administrative Agent.
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The
Administrative Agent shall have received from each of the Borrowers a completed
and fully executed Perfection Certificate and the results of UCC searches with
respect to the Collateral, indicating no Liens other than Permitted Liens in
form and substance satisfactory to the Administrative Agent.
11.7. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (a) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Documents, (b)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer) and
(c) certificate of insurance and certified copy of policy evidencing
satisfactory environmental and pollution insurance on terms and conditions
satisfactory to the Administrative Agent.
11.8. LEVERAGE RATIO AND SENIOR LEVERAGE RATIO. The Administrative
Agent shall have received a certificate from the CFO, in form and substance
satisfactory to the Administrative Agent, certifying that (a) the Senior
Leverage Ratio shall not exceed 2.50:1.00 and (b) the Leverage Ratio shall not
exceed 4.10:1.00 as of the Closing Date.
11.9. RECEIPT OF THE PREFERRED STOCK PROCEEDS. The Administrative Agent
shall have received evidence satisfactory to the Administrative Agent that the
Borrowers shall have received net new equity proceeds from the issuance of the
Series E Convertible Preferred Stock on or prior to the Closing Date equal to at
least $47,000,000 from Persons acceptable to the Administrative Agent and on
terms satisfactory to the Administrative Agent and the Arranger.
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11.10. SUBORDINATED DEBT. The Administrative Agent shall have received
a certificate from the CFO, in form and substance satisfactory to the
Administrative Agent, certifying that (i) the Obligations are permitted senior
Indebtedness under the existing Subordinated Debt, and (ii) no default under the
existing Subordinated Debt has occurred and is continuing or would result after
giving effect to the transactions contemplated by this Credit Agreement and the
other Loan Documents.
11.11. FINANCIAL STATEMENTS AND PROJECTIONS. The Administrative Agent
and the Lenders shall have received copies of (a) the consolidated balance sheet
of the Borrowers as at the Balance Sheet Date, (b) the consolidated statement of
income of the Borrowers for fiscal year 2002, and (c) a satisfactory day one
balance sheet and sources and uses of funds, showing the effects of the Seneca
Xxxxxxx Acquisition, the financing required to effect the Seneca Xxxxxxx
Acquisition and compliance with all terms and conditions of this Credit
Agreement, including the covenants in ss.10 hereof.
11.12. PROJECTIONS. The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, projections of the
annual operating budgets of the Borrowers on a consolidated basis, balance
sheets and cash flow statements for the 2003 to 2007 fiscal years, which shall
disclose all assumptions made with respect to general economic, financial and
market conditions used in formulating such projections. To the knowledge of the
Borrowers, no facts exist that (individually or in the aggregate) would result
in any material change in any of such projections. The projections are based
upon reasonable estimates and assumptions, have been prepared on the basis of
the assumptions stated therein and reflect the reasonable estimates of the
Borrowers of the results of operations and other information projected therein.
11.13. OPINIONS OF COUNSEL. The Administrative Agent shall have
received a favorable legal opinion addressed to the Administrative Agent, dated
as of the Closing Date, in form and substance satisfactory to the Administrative
Agent, from:
(a) Xxxxx, Xxxx & Xxxxxxx, counsel to the Borrowers;
(b) Drinker, Xxxxxx & Xxxxx, special counsel to the Borrowers in
Pennsylvania;
(c) Craft, Xxxxxxx & Rhyme, LLC, special counsel to the Borrowers in
Missouri;
(d) XxXxxxxxx, Will & Xxxxx, special counsel to the Borrowers in New
York and New Jersey;
(e) Xxxxxxx Law Firm, special counsel to the Borrowers in Arkansas;
(f) Xxxxx & Xxxxxxx, P.C. special counsel to the Borrowers in Oklahoma;
and
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(g) Gold, Weems, Bruser, Sues & Xxxxxxx, special counsel to the
Borrowers in Louisiana.
11.14. ENVIRONMENTAL PERMIT CERTIFICATE. The Administrative Agent shall
have received an environmental permit certificate, in the form attached hereto
as Exhibit E, from the Parent satisfactory to the Administrative Agent
concerning principal operating permits at the Borrowers' principal operating
facilities.
11.15. SENECA XXXXXXX ACQUISITION.
The Administrative Agent shall have received evidence that (a) the
Seneca Xxxxxxx Acquisition has been successfully completed, (b) the promissory
note executed by IESI NY Corporation in favor of Xxxxx XxXxxx in connection with
the Seneca Xxxxxxx Acquisition in the aggregate amount of $125,000,000 has been
paid in full and (c) the promissory note executed by Seneca Xxxxxxx in favor of
Xxxxx XxXxxx in connection with the Seneca Xxxxxxx Acquisition in the aggregate
amount of $60,000,000 has been paid in full.
11.16. ENVIRONMENTAL ASSESSMENT OF SENECA XXXXXXX LANDFILL.
The Administrative Agent shall have received an environmental
assessment of the Seneca Xxxxxxx landfill satisfactory to the Administrative
Agent from the Administrative Agent's independent environmental engineer.
11.17. PAYMENT OF FEES. The Borrowers shall have paid all fees required
to be paid on the Closing Date in connection with this Credit Agreement and the
other Loan Documents.
11.18. PAYOFF. The Administrative Agent shall have received
satisfactory evidence of the payment in full of the Prior Credit Agreement.
11.19. PATRIOT ACT. The Administrative Agent shall have received any
documentation and other information required by bank regulatory authorities
under applicable "know your customer" and anti-money laundering rules and
regulations, including without limitation the USA Patriot Act.
12. CONDITIONS TO ALL BORROWINGS.
----------------------------
The obligations of the Lenders to make any Loan, including the
Revolving Credit Loan, the Term Loan and the Swingline Loan, and of the
Administrative Agent to issue, extend or renew any Letter of Credit, in each
case whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of each of the Borrowers contained in this Credit
Agreement, the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit 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
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the making of such Loan or the issuance, amendment, extension or renewal of such
Letter of Credit, 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 Credit Agreement and the other Loan Documents and changes occurring in
the ordinary course of business that singly or in the aggregate do not create a
Material Adverse Effect, and to the extent that such representations and
warranties relate expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing.
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
12.3. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Administrative
Agent's Special Counsel, and the Lenders, the Administrative Agent and such
counsel shall have received all information and such counterpart originals or
certified or other copies of such documents as the Administrative Agent may
reasonably request.
12.4. SUBORDINATED DEBT COMPLIANCE CERTIFICATE. If, after taking into
account the requested Loans or Letters of Credit, (a) the aggregate amount of
all outstanding and requested Loans plus the Maximum Drawing Amount of all
outstanding and requested Letters of Credit plus all Unpaid Reimbursement
Obligations, the Borrowers would be subject to the debt incurrence test pursuant
to Section 406(1) of the 2002 Subordinated Note Indenture, or (b) the Fixed
Charge Coverage Ratio (as defined in the 2002 Subordinated Note Indenture) would
be less than 2.50:1.00, the Administrative Agent shall have received a
certificate in the form of Exhibit H hereto demonstrating compliance with the
indebtedness covenants of the 2002 Subordinated Note Indenture on a pro forma
historical basis as if such borrowing occurred on the first day of the period of
measurement.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
------------------------------------
13.1. EVENTS OF DEFAULT AND ACCELERATION. 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 or lapse of time, "Defaults") shall
occur:
(a) the Borrowers shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and
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payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans,
any Fees, or other sums due hereunder or under any of the other Loan
Documents, within five (5) Business Days 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;
(c) the Borrowers shall fail to comply with any of the
covenants contained inss.ss.8.2, 8.3, 8.5, 8.6, 8.9, 8.14, 8.16, 9 or
10;
(d) the Borrowers shall fail to comply with any of the
covenants contained inss.ss.8.4, 8.10 or 8.18 for ten (10) days;
(e) the Borrowers shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this ss.14.1) for thirty (30) days
after written notice of such failure has been given to the Borrowers by
the Administrative Agent;
(f) any representation or warranty of any of the Borrowers in
this Credit Agreement or any of the other Loan Documents or in any
other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any
material respect upon the date when made or deemed to have been made or
repeated;
(g) any of the Borrowers shall fail to pay at maturity, or
within any applicable period of grace, any obligation for borrowed
money or credit received or in respect of any Capitalized Leases in an
aggregate amount in excess of $1,000,000, or fail to observe or perform
any material term, covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed money or credit
received or in respect of any Capitalized Leases in an aggregate amount
in excess of $1,000,000 for such period of time as would permit
(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 any such holder or holders shall rescind or
shall have a right to rescind the purchase of any such obligations;
(h) any of the Borrowers shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of such Borrower or of any substantial part of
the assets of such Borrower or shall commence any case or other
proceeding relating to such Borrower under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
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furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall
be commenced against such Borrower and such Borrower shall indicate its
approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within forty-five
(45) days following the filing thereof;
(i) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the 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
such Borrower in an involuntary case under federal bankruptcy laws as
now or hereafter constituted;
(j) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive,
any final judgment against any of the Borrowers, that, with other
outstanding final judgments, undischarged, against such Borrower
exceeds in the aggregate $1,000,000, after taking into account any
undisputed insurance coverage;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Administrative Agent's security
interests, mortgages or liens in a substantial portion of the
Collateral shall cease to be perfected, or shall cease to have the
priority contemplated by the Security Documents, in each case otherwise
than in accordance with the terms thereof or with the express prior
written agreement, consent or approval of the Lenders, 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
any of the Borrowers party thereto or any of their respective
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;
(l) any of the Borrowers or any ERISA Affiliate incurs any
liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV
of ERISA in an aggregate amount exceeding $1,000,000, or the Borrowers
or any ERISA Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring aggregate annual
payments exceeding $1,000,000, or any of the following occurs with
respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or
a failure to make a required installment or other payment (within the
meaning ofss.302(f)(1) of ERISA), provided that the Administrative
Agent determines in its reasonable discretion that such event (A) could
be expected to result in liability of any of the Borrowers to the PBGC
or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and (B) could constitute grounds for the termination of such
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Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer
such Guaranteed Pension Plan or for the imposition of a lien in favor
of such Guaranteed Pension Plan; or (ii) the appointment by a United
States District Court of a trustee to administer such Guaranteed
Pension Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(m) a Change of Control shall occur;
(n) Xxxxxxx "Xxxxxx" Flood and Xxxxxx Xxxxx shall cease to
serve as senior management of the Parent and shall not be replaced by
other Persons reasonably acceptable to the Required Lenders within
ninety (90) days; or
(o) any "Default" or "Event of Default" under and as defined
in the 2002 Subordinated Note Indenture or the 2002 Subordinated Notes
shall have occurred;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrowers; provided
that in the event of any Event of Default specified in ss.ss.13.1(h) and
13.1(i), all such amounts shall become immediately due and payable automatically
and without any requirement of notice from the Administrative Agent or any
Lender. Upon demand by the Required Lenders after the occurrence of any Event of
Default, the Borrowers shall immediately provide to the Administrative Agent
cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters
of Credit outstanding, to be held by the Administrative Agent as collateral
security for the Obligations.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in ss.13.1(h) or ss.13.1(i) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each of the Lenders shall be
relieved of all further obligations to make Loans to the Borrowers and the
Administrative Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. If any other Event of Default shall have
occurred and be continuing, the Administrative Agent may and, upon the request
of the Required Lenders, shall, by notice to the Borrowers, terminate the unused
portion of the credit hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately and each of the
Lenders shall be relieved of all further obligations to make Loans and the
Administrative Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. No termination of the Revolving Credit
Commitment hereunder shall relieve the Borrowers of any of the Obligations.
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13.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.13.1, each Lender, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Required Lenders but not otherwise, 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 Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including 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 other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Note or purchaser of any
Letter of Credit Participation 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.
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following
the occurrence or during the continuance of any Event of Default, the
Administrative Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any the Security Documents, or otherwise with
respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Administrative Agent in connection
with the collection of such monies by the Administrative Agent, for the
exercise, protection or enforcement by the Administrative Agent of all
or any of the rights, remedies, powers and privileges of the
Administrative Agent under this Credit Agreement or any of the other
Loan Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Administrative Agent against any
taxes or liens which by law shall have, or may have, priority over the
rights of the Administrative Agent to such monies;
(b) Second, to all other Obligations; provided that (i)
distributions shall be made (A) pari passu among Obligations and (B)
with respect to each type of Obligation owing to the Lenders, such as
interest, principal, fees and expenses, among the Lenders pro rata in
accordance with the amount of all such Obligations outstanding, and
(ii) the Administrative Agent may in its discretion make proper
allowance to take into account any Obligations (i.e. Letters of Credit)
not then due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lenders and the
Administrative Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to ss.9-608(a)(1)(C) or
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9-615(a)(3) of the Uniform Commercial Code of the State of New York;
and
(d) Fourth, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
14. THE AGENTS.
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14.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such
powers as are reasonably incident thereto, including the authority,
without the necessity of any notice to or further consent of the
Lenders, from time to time to take any action with respect to any
Collateral or the Security Documents which may be necessary to perfect,
maintain perfected or insure the priority of the security interest in
and liens upon the Collateral granted pursuant to the Security
Documents, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the
Administrative Agent.
(b) The relationship between the Administrative Agent and each
of the Lenders is that of an independent contractor. The use of the
term "Administrative Agent" is for convenience only and is used to
describe, as a form of convention, the independent contractual
relationship between the Administrative Agent and each of the Lenders.
Nothing contained in this Credit Agreement nor the other Loan Documents
shall be construed to create an agency, trust or other fiduciary
relationship between the Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent
is nevertheless a "representative" of the Lenders, as that term is
defined in Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Lenders and the Administrative Agent
with respect to all collateral security and guaranties contemplated by
the Loan Documents. Such actions include the designation of the
Administrative Agent as "secured party", "mortgagee" or the like on all
financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust
in collateral security intended to secure the payment or performance of
any of the Obligations, all for the benefit of the Lenders and the
Administrative Agent.
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14.2. EMPLOYEES AND ADMINISTRATIVE AGENT. The Administrative Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers.
14.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
14.4. NO REPRESENTATIONS.
14.4.1. GENERAL. The Administrative Agent shall not be
responsible for the execution or validity or enforceability of this
Credit Agreement, the Notes, the Letters of Credit, any of the other
Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Loans, or for the value of
any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Loans, or
for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrowers,
or be bound to ascertain or inquire as to the performance or observance
of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute,
collateral security for the Loans or to inspect any of the properties,
books or records of the Borrowers. The Administrative Agent shall not
be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrowers or any Lender shall have been duly
authorized or is true, accurate and complete. The Administrative Agent
has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Lenders,
with respect to the credit worthiness or financial conditions of the
Borrowers. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and
based upon such information and documents as it has deemed appropriate,
made its own credit analysis and decision to enter into this Credit
Agreement.
14.4.2. CLOSING DOCUMENTATION, ETC. For purposes of
determining compliance with the conditions set forth in ss.11, each
Lender that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
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document and matter either sent, or made available, by the
Administrative Agent or the Arranger to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such
Lender, unless an officer of the Administrative Agent or the Arranger
active upon the Borrowers' account shall have received notice from such
Lender prior to the Closing Date specifying such Lender's objection
thereto and such objection shall not have been withdrawn by notice to
the Administrative Agent or the Arranger to such effect on or prior to
the Closing Date.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the
Borrowers to the Administrative Agent hereunder or under any of the
other Loan Documents for the account of any Lender shall constitute a
payment to such Lender. The Administrative Agent agrees promptly to
distribute to each Lender such Lender's pro rata share of payments
received by the Administrative Agent for the account of the Lenders
except as otherwise expressly provided herein or in any of the other
Loan Documents.
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the
opinion of the Administrative 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 Administrative Agent is to be repaid, each Person to
whom any such distribution shall have been made shall either repay to
the Administrative 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.
14.5.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (a) to make available to the
Administrative Agent its pro rata share of any Loan or to purchase any
Letter of Credit Participation or (b) to comply with the provisions of
ss.16.1 with respect to making dispositions and arrangements with the
other Lenders, where such Lender's share of any payment received,
whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Lenders, in each case as,
when and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Lender") and shall
be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and
all payments due to it from the Borrowers, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or
otherwise, to the remaining nondelinquent Lenders for application to,
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and reduction of, their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. The Delinquent Lender
hereby authorizes the Administrative Agent to distribute such payments
to the nondelinquent Lenders in proportion to their respective pro rata
shares of all outstanding Loans and Unpaid Reimbursement Obligations. A
Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations
of the nondelinquent Lenders, the Lenders' respective pro rata shares
of all outstanding Loans and Unpaid Reimbursement Obligations have
returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
14.6. HOLDERS OF NOTES. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
14.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrowers as required by
ss.16.2), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or any of the other Loan Documents
or the transactions contemplated or evidenced hereby or thereby, or the
Administrative Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Administrative
Agent's willful misconduct or gross negligence.
14.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment, the Loans made by it, the Letters of Credit issued by
it and as the purchaser of any Letter of Credit Participations, as it would have
were it not also the Administrative Agent.
14.9. RESIGNATION. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrowers. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than "A" or its equivalent by S&P. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
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Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation, the provisions of this Credit Agreement and the other Loan
Documents 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 Administrative Agent.
14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
ss.14.10 it shall promptly notify the other Lenders of the existence of such
Default or Event of Default.
14.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (a)
so requested by the Required Lenders and (b) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against expenses
and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Lenders may direct the Administrative Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Administrative Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Administrative
Agent need not comply with any such direction to the extent that the
Administrative Agent reasonably believes the Administrative Agent's compliance
with such direction to be unlawful or commercially unreasonable in any
applicable jurisdiction.
14.12. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial, administrative or like proceeding or any assignment for the
benefit of creditors relative to the Borrowers, the Administrative Agent
(irrespective of whether the principal of any Loan, Reimbursement Obligation or
Unpaid Reimbursement Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) shall be
entitled and empowered, by intervention in such proceeding, under any such
assignment or otherwise:
(i) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
Reimbursement Obligations or Unpaid Reimbursement Obligations and all
other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims
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of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the
Administrative Agent under ss.ss.2.3, 4.6, 5.1 and 16.2) allowed in
such proceeding or under any such assignment; and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
(b) Any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such proceeding or under any such
assignment is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, nevertheless to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under ss.ss.2.3,
4.6, 5.1 and 16.2.
(c) Nothing contained herein shall authorize the Administrative Agent
to consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
owed to such Lender or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding or under any such assignment.
14.13. DUTIES OF SYNDICATION AGENT. The Syndication Agent shall not
have any right, power, obligation, liability, responsibility or duty under this
Credit Agreement or any of the other Loan Documents other than those applicable
to it in its capacity as a Lender.
15. ASSIGNMENT AND PARTICIPATION.
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15.1. GENERAL CONDITIONS. The provisions of this Credit Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrowers may
assign or otherwise transfer any of its rights or obligations hereunder or under
any of the Loan Documents without the prior written consent of each Lender and
no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (a) to an Eligible Assignee in accordance with the provisions
of ss.15.2, (b) by way of participation in accordance with the provisions of
ss.15.4 or (c) by way of pledge or assignment of a security interest subject to
the restrictions of ss.15.6 (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in ss.15.4 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
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the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Credit Agreement or any of the other Loan Documents.
15.2. ASSIGNMENTS. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Credit Agreement (including all or a portion of its Revolving Credit Commitment
and the Loans at the time owing to it); provided that:
(a) except in the cases of an assignment of the entire
remaining amount of the assigning Lender's Revolving Credit Commitment
or Term Loan Amount or of an assignment to a Lender or a Lender
Affiliate, the aggregate amount of the Revolving Credit Commitment or
Term Loan Amount or assigned shall not be less than $1,000,000 (which
shall be in the aggregate in the case of simultaneous assignment to or
by two or more Approved Funds) unless each of the Administrative Agent
and, so long as no Default or Event of Default has occurred and is
continuing, the Borrowers otherwise consent (each such consent not to
be unreasonably withheld or delayed);
(b) any assignment of a Revolving Credit Commitment or Term
Loan Amount must be approved by the Administrative Agent and, so long
as no Default or Event of Default has occurred and is continuing, the
Parent (each such approval not to be unreasonably withheld) unless the
Person that is the proposed assignee is itself a Lender with a
Revolving Credit Commitment or Term Loan Amount (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and
(c) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500; provided that only one such
fee shall be payable in the event of simultaneous assignments to or by
two or more Approved Funds, and the Eligible Assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to ss.15.3, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party to this Credit
Agreement and, to the extent of the interest assigned by such Assignment and
Acceptance have the rights and obligations of a Lender under this Credit
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Credit Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Credit Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of (i) ss.ss.5.2.2, 5.6, 5.7 and 5.9
with respect to facts and circumstances occurring prior to the effective date of
such assignment and (ii) ss.16.3 notwithstanding such assignment. Any assignment
or transfer by a Lender of rights or obligations under this Credit Agreement
that does not comply with this paragraph shall be treated for purposes of this
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Credit Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with ss.15.4.
15.3. REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent's Office a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Revolving Credit Commitments or Term Loan Amount of, and principal amounts of
the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrowers
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
15.4. PARTICIPATIONS. Any Lender may at any time, without the consent
of, or notice to, the Borrowers or the Administrative Agent, sell participations
to any Person (other than a natural person) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Credit Agreement
(including all or a portion of its Revolving Credit Commitment or Term Loan
Amount and/or the Loans owing to it); provided that (a) such Lender's
obligations under this Credit Agreement shall remain unchanged, (b) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (c) the Borrowers, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Credit Agreement and to approve any amendment, modification or
waiver of any provision of this Credit Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that would reduce
the principal of or the interest rate on any Loans, extend the term or increase
the amount of the Revolving Credit Commitment or Term Loan Amount of such Lender
as it relates to such Participant, reduce the amount of any Commitment Fee or
Letter of Credit Fees to which such Participant is entitled or extend any
regularly scheduled payment date for principal or interest. Subject to ss.15.5,
each of the Borrowers agrees that each Participant shall be entitled to the
benefits of ss.ss.5.2.2, 5.6, 5.7 and 5.9 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to ss.15.2. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of ss.16.1 as though it were a Lender, provided such Participant agrees to be
subject to ss.16.1 as though it were a Lender.
15.5. PAYMENTS TO PARTICIPANTS. A Participant shall not be entitled to
receive any greater payment under ss.ss.5.2.2, 5.6 and 5.7 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers' prior written consent. A Participant
that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the
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benefits of ss.5.2.2 unless the Borrowers are notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with ss.5.2.2 as though it were a Lender.
15.6. MISCELLANEOUS ASSIGNMENT PROVISIONS. A Lender may at any time
grant a security interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including without limitation (a)
any pledge or assignment to secure obligations to any of the twelve Federal
Reserve Banks organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341
and (b) with respect to any Lender that is a Fund, to any lender or any trustee
for, or any other representative of, holders of obligations owed or securities
issued by such Fund as security for such obligations or securities or any
institutional custodian for such Fund or for such lender; provided that no such
grant shall release such Lender from any of its obligations hereunder, provide
any voting rights hereunder to the secured party thereof, substitute any such
secured party for such Lender as a party hereto or affect any rights or
obligations of the Borrowers or Administrative Agent hereunder.
15.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
assignee Lender is an Affiliate of the Borrowers, then any such assignee Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to ss.13.1
or ss.13.2, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Lender's interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of the Loans or
Reimbursement Obligations to a Participant, and such Participant is one of the
Borrowers or an Affiliate of the Borrowers, then such transferor Lender shall
promptly notify the Administrative Agent of the sale of such participation. Such
transferor Lender shall have no right to vote as a Lender hereunder or under any
of the other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Loan Documents
or for purposes of making requests to the Administrative Agent pursuant to
ss.13.1 or ss.13.2 to the extent that such participation is beneficially owned
by the Borrowers or any Affiliate of the Borrowers, and the determination of the
Required Lenders shall for all purposes of this Credit Agreement and the other
Loan Documents be made without regard to the interest of such transferor Lender
in the Loans or Reimbursement Obligations to the extent of such participation.
15.8. SPECIAL PURPOSE FUNDING VEHICLE. Notwithstanding anything to the
contrary contained in this ss.15, any Lender other than a Lender affiliated with
a Borrower (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time delivered by the Granting Lender to the Administrative Agent and the
Borrowers, the option to provide to the Borrowers all or any part of any Loan
that such Granting Lender would otherwise be obligated to make to the Borrowers
pursuant to this Credit Agreement, provided that (a) nothing herein shall
constitute a commitment to make any Loan by any SPC, (b) the Granting Lender's
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obligations under this Credit Agreement shall remain unchanged, (c) the Granting
Lender should retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit
Agreement and (d) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Revolving Credit Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any expense reimbursement, indemnity or similar payment obligation under this
Credit Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Credit Agreement) that, prior to
the date that is one year and one day after the later of (i) the payment in full
of all outstanding senior indebtedness of any SPC and (ii) the Revolving Credit
Loan Maturity Date, or, as applicable, the Term Loan Maturity Date, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States of America or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this ss.15.8, any SPC may (A) with notice to, but (except as specified below)
without the prior written consent of, the Borrowers or the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial institutions
(consented to by the Administrative Agent and, so long as no Default or Event of
Default has occurred and is continuing, the Borrowers, which consents shall not
be unreasonably withheld or delayed) providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC
or to support the securities (if any) issued by such SPC to fund such Loans and
(B) disclose on a confidential basis any non-public information relating to its
Loans (other than financial statements referred to in ss.ss.7.4 or 8.4) to any
rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC. In no event shall the Borrowers be
obligated to pay to an SPC that has made a Loan any greater amount than the
Borrowers would have been obligated to pay under this Credit Agreement if the
Granting Lender had made such Loan. An amendment to this ss.15.8 without the
written consent of an SPC shall be ineffective insofar as it alters the rights
and obligations of such SPC.
16. PROVISIONS OF GENERAL APPLICATIONS.
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16.1. SETOFF. The Borrowers hereby grant to the Administrative Agent
and each of the Lenders a continuing lien, security interest and right of setoff
as security for all liabilities and obligations to the Administrative Agent and
each Lender, whether now existing or hereafter arising, upon and against all
deposits, credits, collateral and property, now or hereafter in the possession,
custody, safekeeping or control of the Administrative Agent or such Lender or
any Lender Affiliate and their successors and assigns or in transit to any of
them. Regardless of the adequacy of any collateral, if any of the Obligations
are due and payable and have not been paid or any Event of Default shall have
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occurred, any deposits or other sums credited by or due from any of the Lenders
to such Borrower and any securities or other property of such Borrower in the
possession of such Lender may be applied to or set off by such Lender against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of such Borrower to such Lender. ANY AND ALL RIGHTS TO
REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
16.2. EXPENSES. The Borrowers jointly and severally agree to pay (a)
the reasonable costs of producing and reproducing this Credit Agreement, the
other Loan Documents and the other agreements and instruments mentioned herein,
(b) any taxes (including any interest and penalties in respect thereto) payable
by the Administrative Agent or any of the Lenders (other than taxes based upon
the Administrative Agent's or any Lender's net income) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to indemnify the Administrative Agent and each Lender with respect
thereto), (c) the reasonable fees, expenses and disbursements of the
Administrative Agent's Special Counsel or any local counsel to the
Administrative Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations or pursuant
to any terms of such Loan Document for providing for such cancellation, (d) the
fees, expenses and disbursements of the Administrative Agent or any of its
affiliates incurred by the Administrative Agent or such affiliate in connection
with the preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all title insurance
premiums and surveyor, engineering, appraisal and examination charges, (e) any
fees, costs, expenses and bank charges, including bank charges for returned
checks, incurred by the Administrative Agent in establishing, maintaining or
handling agency accounts, lock box accounts and other accounts for the
collection of any of the Collateral, (f) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender or the Administrative Agent, and
reasonable consulting, accounting, appraisal, investment bankruptcy and similar
professional fees and charges) incurred by any Lender or the Administrative
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrowers or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to any Lender's or the Administrative Agent's relationship with the Borrowers
and (g) all reasonable fees, expenses and disbursements of any Lender or the
Administrative Agent incurred in connection with UCC searches, UCC filings,
intellectual property searches or intellectual property filings. The covenants
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contained in this ss.16.2 shall survive payment or satisfaction in full of all
of the Obligations.
16.3. INDEMNIFICATION. The Borrowers jointly and severally agree to
indemnify and hold harmless the Administrative Agent, its affiliates and the
Lenders and their respective Related Parties from and against any and all
claims, actions and suits whether groundless or otherwise, and from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(a) any actual or proposed use by the Borrowers of the proceeds of any of the
Loans or Letters of Credit, (b) the reversal or withdrawal of any provisional
credits granted by the Administrative Agent upon the transfer of funds from lock
box, bank agency, concentration accounts or otherwise under any cash management
arrangements with the Borrowers or in connection with the provisional honoring
of funds transfers, checks or other items, (c) any actual or alleged
infringement of any patent, copyright, trademark, service xxxx or similar right
of the Borrowers comprised in the Collateral, (d) the Borrowers entering into or
performing this Credit Agreement or any of the other Loan Documents or (e) with
respect to the Borrowers and their respective properties and assets, the
violation of any Environmental Law, Disposal, Release or threatened Release of
any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including, but
not limited to, claims with respect to wrongful death, personal injury or damage
to property), in each case including, without limitation, the reasonable fees
and disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Lenders and the Administrative
Agent and its affiliates shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrowers agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of the Borrower under this ss.16.3 are unenforceable for any reason,
the Borrowers hereby agree to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law. The
covenants contained in this ss.16.3 shall survive payment or satisfaction in
full of all other Obligations.
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.4.1. CONFIDENTIALITY. Each of the Lenders and the
Administrative Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrowers pursuant to this
Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the
disclosure of any such information (a) after such information shall
have become public other than through a violation of this ss.16.4, or
becomes available to any of the Lenders or the Administrative Agent on
a nonconfidential basis from a source other than the Borrowers, (b) to
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the extent required by statute, rule, regulation or judicial process,
(c) to counsel for any of the Lenders or the Administrative Agent, (d)
to bank examiners or any other regulatory authority having jurisdiction
over any Lender or the Administrative Agent, or to auditors or
accountants, (e) to the Administrative Agent, any Lender or any
Financial Affiliate, (f) in connection with any litigation to which any
one or more of the Lenders, the Administrative Agent or any Financial
Affiliate is a party, or in connection with the enforcement of rights
or remedies hereunder or under any other Loan Document, (g) to a Lender
Affiliate or a Subsidiary or affiliate of the Administrative Agent, (h)
to any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document so long as such
assignee, pledgee, participant or counterparty, as the case may be,
agrees to be bound by the provisions of ss.16.4 , (i) with the consent
of the Borrowers and (j) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's
advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the
provisions of this ss.16.4.1). Moreover, each of the Administrative
Agent, the Lenders and any Financial Affiliate is hereby expressly
permitted by the Borrowers to refer to any of the Borrowers in
connection with any advertising, promotion or marketing undertaken by
the Administrative Agent, such Lender or such Financial Affiliate and,
for such purpose, the Administrative Agent, such Lender or such
Financial Affiliate may utilize any trade name, trademark, logo or
other distinctive symbol associated with the Borrowers or any of their
businesses. Notwithstanding anything herein to the contrary, the
Administrative Agent, each Lender and the respective Affiliates of each
of the foregoing (and the respective partners, directors, officers,
employees, agents, advisors and other representatives of the
aforementioned Persons), and any other party, may disclose to any and
all Persons, without limitation of any kind (a) any information with
respect to the U.S. federal and state income tax treatment of the
transactions contemplated hereby and any facts that may be relevant to
understanding the U.S. federal or state income tax treatment of such
transactions ("tax structure"), which facts shall not include for this
purpose the names of the parties or any other Person named herein, or
information that would permit identification of the parties or such
other Persons, or any pricing terms or other nonpublic business or
financial information that is unrelated to such tax treatment or tax
structure, and (b) all materials of any kind (including opinions or
other tax analyses) that are provided to the Borrowers, the
Administrative Agent or such Lender relating to such tax treatment or
tax structure; provided that with respect to any document or similar
item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax
structure of the Loans, Letters of Credit and transactions contemplated
hereby.
16.4.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the
Administrative Agent shall, prior to disclosure thereof, notify the
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Borrowers of any request for disclosure of any such non-public
information by any governmental agency or representative thereof (other
than any such request in connection with an examination of such Lender
by such governmental agency) or pursuant to legal process.
16.4.3. OTHER. In no event shall any Lender or the
Administrative Agent be obligated or required to return any materials
furnished to it or any Financial Affiliate by the Borrowers. The
obligations of each Lender under this ss.16.4 shall supersede and
replace the obligations of such Lender under any confidentiality letter
in respect of this financing signed and delivered by such Lender to the
Borrowers prior to the date hereof and shall be binding upon any
assignee of, or purchaser of any participation in, any interest in any
of the Loans or Reimbursement Obligations from any Lender.
16.5. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrowers pursuant hereto shall be deemed to have been relied upon by the
Lenders and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans and the issuance, extension or renewal of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any Letter of Credit or any amount due under this Credit
Agreement or the Notes or any of the other Loan Documents remains outstanding or
any Lender has any obligation to make any Loans or the Administrative Agent has
any obligation to issue, extend or renew any Letter of Credit, and for such
further time as may be otherwise expressly specified in this Credit Agreement.
All statements contained in any certificate or other paper delivered to any
Lender or the Administrative Agent at any time by or on behalf of the Borrowers
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by such Borrower hereunder.
16.6. NOTICES. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrowers, at IESI Corporation, 0000 Xxxxx
Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxx,
Senior Vice President and Chief Financial Officer, fax number: (817)
632-4542, or at such other address for notice as the Borrowers shall
last have furnished in writing to the Person giving the notice;
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(b) if to the Administrative Agent, at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX, Attention: Xxxxxxx X. Xxxxxxx,
Managing Director, Xxxx Xxxx XX XX 00000X, fax number: (000) 000-0000
or such other address for notice as the Administrative Agent shall last
have furnished in writing to the Person giving the notice; and
(c) if to any Lender, at such Lender's address set forth on
Schedule 1 hereto, or such other address for notice as such Lender
shall have last 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 (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other
communication to be made hereunder or under the Notes or any Letter of Credit
Applications, even if otherwise required to be in writing under other provisions
of this Credit Agreement, the Notes or any Letter of Credit Applications, may
alternatively be made in an electronic record transmitted electronically under
such authentication and other procedures as the parties hereto may from time to
time agree in writing (but not an electronic record), and such electronic
transmission shall be effective at the time set forth in such procedures. Unless
otherwise expressly provided in such procedures, such an electronic record shall
be equivalent to a writing under the other provisions of this Credit Agreement,
the Notes or any Letter of Credit Applications, and such authentication, if made
in compliance with the procedures so agreed by the parties hereto in writing
(but not an electronic record), shall be equivalent to a signature under the
other provisions of this Credit Agreement, the Notes or any Letter of Credit
Applications.
16.7. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, 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 OF NEW YORK (EXCLUDING
THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS
LAW SS.5-1401 AND SS.5-1402). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATED DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN SS.16.6. EACH OF THE
BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
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16.8. HEADINGS. The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
16.9. COUNTERPARTS. This Credit Agreement and any amendment hereof may
be executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit 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. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any Loan
Document or of any amendment or waiver hereto or thereto shall be as effective
as an original executed counterpart hereof or thereof or of such amendment or
waiver and shall be considered a representation that an original executed
counterpart hereof or thereof or such amendment or waiver, as the case may be,
will be delivered.
16.10. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Credit Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in ss.16.12.
16.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS CREDIT 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 OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
INCLUDING ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
THE ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE
LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, each of the parties
hereto 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. Each of the Borrowers (a) certifies that no representative, agent or
attorney of any Lender or the Administrative Agent has represented, expressly or
otherwise, that such Lender or the Administrative Agent would not, in the event
of litigation, seek to enforce the foregoing waivers and (b) acknowledges that
each of the Administrative Agent and the Lenders have been induced to enter into
this Credit Agreement and the other Loan Documents to which it is a party by,
among other things, the waivers and certifications contained herein.
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC. (a) Except as set forth in
subsections (b) and (c) below, any consent or approval required or permitted by
this Credit Agreement to be given by the Lenders may be given, and any term of
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this Credit Agreement, the other Loan Documents or any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrowers of any terms of this Credit Agreement, the other Loan Documents 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 Borrowers and
the written consent of the Required Lenders.
(b) No amendment, modification or waiver with respect to the following
shall be effective without the written consent of the Borrowers and each Lender
directly affected thereby:
(i) reduce or forgive the principal amount of any Revolving
Credit Loans or Term Loan, as the case may be, or Reimbursement
Obligations, or reduce the rate of interest on the Revolving Credit
Loans or applicable Term Loan, as the case may be, or the amount of the
Commitment Fee or Letter of Credit Fees;
(ii) increase the amount of such Revolving Lender's Revolving
Credit Commitment or such Term Lender's Term Loan Amount, or extend the
expiration date of such Revolving Credit Lender's Revolving Credit
Commitment;
(iii) postpone or extend the Revolving Credit Loan Maturity
Date or the Term Loan Maturity Date or any other regularly scheduled
dates for payments of principal of, or interest on, the Loans or
Reimbursement Obligations or any Fees or other amounts payable to such
Lender (it being understood that any vote to rescind any acceleration
made pursuant to ss.13.1 of amounts owing with respect to the Loans and
other Obligations shall require only thE approval of the Required
Lenders);
(iv) other than pursuant to a transaction permitted by the
terms of this Credit Agreement, release (A) all or substantially all of
the Collateral (excluding, if any Borrower becomes a debtor under the
federal Bankruptcy Code, the release of "cash collateral", as defined
in Section 363(a) of the federal Bankruptcy Code pursuant to a cash
collateral stipulation with the debtor approved by the Required
Lenders) or (B) any Borrower of its Obligations hereunder;
(v) amend or modify the provisions of ss.3.6 (Mandatory
Prepayments of the Term Loan), ss.13.4 (Distribution of Collateral
Proceeds or ss.17 (Pari Passu Treatment);
(c) No amendment, modification or waiver shall without the written
consent of all of the Lenders, amend or waive this ss.16.12 or the definition of
"Required Lenders";
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(d) No amendment, modification or waiver shall without the written
consent of the Administrative Agent, amend or waive ss.ss.2.10 or 14, the amount
or time of payment of any fees payable for the Administrative Agent's account or
any LetTeR of Credit Fees payable for the Administrative Agent's account or any
other provision applicable to the Administrative Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrowers shall entitle the Borrowers to other or further
notice or demand in similar or other circumstances.
16.13. BORROWERS' REPRESENTATIVE. Each of the Borrowers hereby
irrevocably appoints the Parent as such Borrower's representative and agent for
all purposes under this Credit Agreement and authorizes the Parent, on behalf of
each such Borrower and in each such Borrower's name to give and receive all
notices and documents, certificates and instruments to be given or received by
the Borrowers or any of them in connection with this Credit Agreement and the
other Loan Documents, including receipt of service of legal process in
connection with any suit or proceeding arising under, or in connection with the
transactions contemplated by this Credit Agreement, delivery of Loan Requests,
Conversion Requests, Compliance Certificates and requests for waivers and
amendments and to acknowledge or consent to any amendments, waivers or
assignments.
16.14. SEVERABILITY. The provisions of this Credit 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 Credit
Agreement in any jurisdiction.
17. PARI PASSU TREATMENT.
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(a) Following the occurrence and during the continuance of any Event of
Default, each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against any Borrower (pursuant to ss.16.1
or otherwise), including a secured claim under Section 506 of the federal
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 Loans, and other Obligations held by it as a result of which the
unpaid principal portion of the Loans and the Obligations held by it shall be
proportionately less than the unpaid principal portion of the Loans and
Obligations held by any other Lender, it shall be deemed to have simultaneously
purchased from such other Lender a participation in the Loans and Obligations
held by such other Lender, so that the aggregate unpaid principal amount of the
Loans, Obligations and participations in Loans and Obligations held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
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of the Loans and Obligations then Outstanding as the principal amount of the
Loans and other Obligations held by it prior to such exercise of banker's lien,
setoff or counterclaim was to the principal amount of all Loans 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 ss.17 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.
(b) Each Borrower expressly consents to the foregoing arrangements and
agrees that any Person holding such a participation in the Loans 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 such Borrower to such Person as fully as if such Person had made a Loan
directly to such Borrower in the amount of such participation.
(c) Nothing contained in this ss.17 shall impair, as between the
Borrowers and any Lender, the obligation of the BorrowerS to pay such Lender all
amounts payable in respect of such Lender's Loans and other Obligations as and
when the same shall become due and payable in accordance with the terms thereof.
18. PRIOR CREDIT AGREEMENT.
----------------------
This Credit Agreement shall supersede the Prior Credit Agreement in its
entirety, except as provided in this ss.18. On thE Closing Date, the rights and
obligations of the parties under the Prior Credit Agreement which remain Lenders
hereunder shall be subsumed within and be governed by this Credit Agreement. The
Borrowers acknowledge and agree that the UCC financing statements previously
filed in connection with the Prior Credit Agreement and the other Security
Documents shall remain in full force and effect and shall apply as of the
Closing Date with respect to the Obligations hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
IESI CORPORATION
IESI TX CORPORATION
IESI NY CORPORATION
IESI NJ CORPORATION
IESI NJ RECYCLING
CORPORATION
IESI AR CORPORATION
IESI MO CORPORATION
IESI AR LANDFILL CORPORATION
IESI PA CORPORATION
IESI TX GP CORPORATION
IESI OK CORPORATION
IESI PA BETHLEHEM LANDFILL
CORPORATION
IESI PA BLUE RIDGE LANDFILL
CORPORATION
IESI LA CORPORATION
IESI LA LANDFILL CORPORATION
CENTER POINT DISPOSAL, INC.
AMD INC.
TOTAL WASTE SYSTEMS, INC.
TWS, INC.
TWS OF SOUTHWESTERN OKLAHOMA, INC.
XXXXX'X TRASH SERVICE, INC.
GRAND LAKE SANITATION, INC.
TWS OF CADDO COUNTY, INC.
ENVIROCLEAN SYSTEMS, INC.
CENTRAL LOUISIANA WASTE, LLC
IESI MO LANDFILL CORPORATION
IESI STL, LLC
BEST DISPOSAL SERVICE, INC.
WCI SYSTEMS, INC.
SENECA XXXXXXX, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxx, Senior Vice President
IESI TX LANDFILL LP,
By IESI TX GP Corporation, its General
Partner
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By:
--------------------------------------
Xxxxxx X. Xxxxx, Senior Vice President
IESI DE LP CORPORATION
IESI DE CORPORATION
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
FLEET NATIONAL BANK, individually
and as Administrative Agent
By: _____________________________________
Xxxxxxx X. Xxxxxxx, Managing
Director
LASALLE BANK NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
[INSERT OTHER LENDERS]
By: _____________________________________
Name:
