Exhibit 10.1(v)
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, herein
called this "AGREEMENT") is dated as of March 10, 2004 and entered into by and
among COVANTA ENERGY CORPORATION, a Delaware corporation ("Covanta" or
"COMPANY"), and THE SUBSIDIARIES OF COVANTA LISTED ON THE SIGNATURE PAGES HEREOF
AS DETROIT L/C BORROWERS (together with Company and any Additional Detroit L/C
Borrowers (as hereinafter defined; this and other capitalized terms used herein
without definition being used as defined in subsection 1.1), collectively,
"DETROIT L/C BORROWERS" and each a "DETROIT L/C BORROWER") and THE SUBSIDIARIES
OF COVANTA LISTED ON THE SIGNATURE PAGES HEREOF AS NEW L/C BORROWERS (together
with Company and any Additional New L/C Borrowers, collectively, "NEW L/C
BORROWERS" and each a "NEW L/C BORROWER"; the Detroit L/C Borrowers together
with the New L/C Borrowers, collectively, "BORROWERS" and each a "BORROWER");
THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF AS DETROIT L/C
LENDERS (each, in its capacity as a Detroit L/C Lender, together with any other
Person that become a party hereto as a Detroit L/C Lender pursuant to subsection
6.1(f), individually referred to herein as a "DETROIT L/C LENDER" and
collectively as "DETROIT L/C Lenders"); THE ENTITIES LISTED ON THE SIGNATURE
PAGES HEREOF AS NEW L/C LENDERS (each, in its capacity as a New L/C Lender,
together with any other Person that becomes a party hereto as a New L/C Lender
pursuant to subsection 6.1(f), individually referred to herein as "NEW L/C
LENDER" and collectively as "NEW L/C LENDERS"); BANK OF AMERICA, N.A. ("BANK OF
AMERICA"), as administrative agent for Detroit L/C Lenders (and any successor
administrative agent for Detroit L/C Lenders pursuant to the Detroit L/C
Agreement, in such capacity "DETROIT L/C FACILITY AGENT"), as Collateral Agent
and Cash Management Bank, BANK ONE, NA, as administrative agent for New L/C
Lenders (and any successor administrative agent for New L/C Lenders pursuant to
the New L/C Facility Agreement, in such capacity "NEW L/C Agent"); DEUTSCHE BANK
SECURITIES, INC. ("DEUTSCHE BANK"), as Documentation Agent for Detroit L/C
Lenders (and any successor documentation agent for Detroit L/C Lenders pursuant
to the Detroit L/C Agreement in such capacity "DETROIT L/C DOCUMENTATION
AGENT"); XXXXXXXXX HOLDING CORPORATION, a Delaware corporation ("DHC"); U.S.
BANK NATIONAL ASSOCIATION, in its capacity as trustee under the High Yield
Indenture (in such capacity, the "HIGH YIELD TRUSTEE"); THE COMPANIES LISTED ON
THE SIGNATURE PAGES HEREOF AS MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT
BENEFICIARIES (the "MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT
BENEFICIARIES"); and the other Persons who may become parties to this Agreement
from time to time pursuant to and in accordance with subsections 6.1(f) and
6.1(l) of this Agreement.
R E C I T A L S
WHEREAS, the Borrowers have proposed, their creditors have approved,
and the Bankruptcy Court has confirmed, the Plan of Reorganization;
WHEREAS, in connection with the Plan of Reorganization,
simultaneously herewith the Borrowers have received financing pursuant to the
Detroit L/C Facility Agreement, New L/C Facility Agreement and High Yield
Indenture;
WHEREAS, it is a condition precedent to (i) the obligations of the
Detroit L/C Lenders to enter into and extend credit under the Detroit L/C
Facility Agreement, (ii) the obligations of the New L/C Lenders to enter into
and extend credit under the New L/C Facility Agreement, (iii) the obligations of
the holders of the High Yield Notes to accept the High Yield Notes in exchange
for certain pre-existing claims against Loan Parties (other than DHC) and (iv)
the effectiveness of the Plan of Reorganization, as applicable, that each
Creditor Party, High Yield Trustee and each Borrower shall have executed and
delivered this Agreement to the Collateral Agent;
WHEREAS, on the date hereof Loan Parties have executed and delivered
to Collateral Agent the Collateral Documents pursuant to which Loan Parties
granted a security interest in the Collateral as security for (i) in the case of
Detroit L/C Borrowers, all Obligations of Detroit L/C Borrowers under and in
respect of the Detroit L/C Facility Agreement and all other Detroit L/C Facility
Documents to which Detroit L/C Borrowers are a party to from time to time, in
each case as described therein, (ii) in the case of New L/C Borrowers, all
Obligations of New L/C Borrowers under and in respect of the New L/C Facility
Agreement and all other New L/C Facility Documents to which New L/C Borrowers
are party to from time to time, in each case as described therein, and (iii) in
the case of Company and High Yield Guarantors, all Obligations of Company and
High Yield Guarantors under and in respect of the High Yield Notes and High
Yield Indenture;
WHEREAS, Creditor Parties and High Yield Trustee desire to set forth
certain provisions regarding the appointment, duties and responsibilities of
Collateral Agent and to set forth certain other provisions concerning the
obligations of Loan Parties to Creditor Parties and High Yield Noteholders under
the agreements referred to in the foregoing recitals; and
WHEREAS, Creditor Parties and High Yield Trustee wish to set forth
their mutual intentions as to certain matters relating to the exercise of
remedies with respect to the Collateral and payments made by or for the account
of the applicable Loan Parties under the Credit Documents as more fully set
forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION I
1.1 DEFINITIONS. Terms used in the Agreement have the meanings set
forth in the introduction and recitals hereto. In addition, the following terms
shall have the following meanings:
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"ADDITIONAL DETROIT L/C BORROWER" means any Person that becomes an
"Additional Subsidiary Borrower" after the date hereof pursuant to and as such
term is defined in the Detroit L/C Facility Agreement.
"ADDITIONAL NEW L/C BORROWER" means any Person that becomes an
"Additional Subsidiary Borrower" after the date hereof pursuant to and as such
term is defined in the New L/C Facility Agreement.
"AGENTS" means Collateral Agent, Detroit L/C Agents and New L/C
Agent.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person (other than exclusively as a result of such Person's
role as a senior executive of that Person or Project manager or operator),
whether through the ownership of voting securities or by contract or otherwise.
"ANNUAL FREE CASH FLOW" shall have the meaning assigned to that term
in the each Facility Agreement as in effect on the Closing Date.
"BANK OF AMERICA" shall have the meaning assigned to that term in
the introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for the
Southern District of New York and any other court properly exercising
jurisdiction over any relevant Chapter 11 Case.
"BANKRUPTCY EVENT" means any of one or more of the following events
regardless of the reason therefor:
(a) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Loan Party in an involuntary
case under the Bankruptcy Code or any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable
federal, or state law; or (ii) an involuntary case shall be commenced
against any Loan Party under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over any Loan Party, or over all or a substantial
part of its property, shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of any Loan
Party for all or a substantial part of its property; or the issuance of a
warrant of attachment, execution or similar process against
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any substantial part of the property of any Loan Party, and the
continuance of any such event in clause (ii) for 60 days unless dismissed,
bonded or discharged; or
(b) (i) any Loan Party shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or
a substantial part of its property, or shall make any assignment for the
benefit of creditors; or
(ii) the inability or failure of any Loan Party, or the
admission by any Loan Party in writing of its inability, to pay its debts
as such debts become due; or the Governing Body (or any committee thereof)
of any Loan Party adopts any resolution or otherwise authorizes action to
approve any of the actions referred to in clause (i) or this clause (ii);
or
(c) any order, judgment or decree shall be entered against any Loan
Party decreeing the dissolution, winding up or split up of that Loan Party
and such order shall remain undischarged or unstayed for a period in
excess of 30 days.
"BANKRUPTCY PROCEEDING" means any case or proceeding of the type
described in the definition of "Bankruptcy Event" with respect to any Loan
Party.
"BORROWER" and BORROWERS" shall have the meaning assigned to such
terms in the introduction to this Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York, the State of
Texas or the State of California or is a day on which banking institutions
located in any such state are authorized or required by law or other
governmental action to close.
"CAPITAL STOCK" means the capital stock or other equity interests of
a Person.
"CASH COLLATERAL ACCOUNTS" means the Detroit L/C Cash Collateral
Account and the New L/C Cash Collateral Account.
"CASH MANAGEMENT BANK" shall have the meaning assigned to that term
in the definition of "Cash Management System".
"CASH MANAGEMENT OBLIGATIONS" means the obligations of Borrowers to
the Cash Management Bank arising from or relating to the Cash Management System,
including any liability of Borrower on any claim arising out of or relating to
the Cash Management System, whether or not the right to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed or
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any bankruptcy, insolvency, reorganization or other similar
proceeding.
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"CASH MANAGEMENT SYSTEM" means the cash management system of Company
and its Subsidiaries in the United States maintained with Bank of America (in
such capacity, "CASH MANAGEMENT BANK") as described in Schedule 4.1P annexed to
the Detroit L/C Facility Agreement and the New L/C Facility Agreement, as such
Cash Management System may be modified pursuant to subsection 6.10 of the
Detroit L/C Facility Agreement and the New L/C Facility Agreement, and any other
related services provided by Cash Management Bank to Company and its
Subsidiaries, including treasury, depositary and cash management services or in
connection with automated clearing house transfers of funds.
"CHAPTER 11 CASE" means the chapter 11 cases of Covanta Energy
Corporation, a Delaware corporation, and certain of its Subsidiaries, including
Borrowers, jointly administered under Case Nos. 02-40826 through 02-40949,
02-16322, 03-13679 through 03-13685, and 03-13687 through 03-13709.
"CLOSING DATE" means March 10, 2004.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) and interests in property now owned or
hereafter acquired by any Loan Party in or upon which a security interest, Lien
or mortgage is granted or purported to be granted to Collateral Agent pursuant
to the Collateral Documents, including all Proceeds thereof, but in no event
shall Collateral include the Capital Stock of CPIH pledged pursuant to the CPIH
Stock Pledge Agreement (as defined in the Facility Agreements). For the
avoidance of doubt, "Collateral" shall not include any New Investor Assurances.
"COLLATERAL AGENT" shall have the meaning assigned to that term in
subsection 2.1.
"COLLATERAL DOCUMENTS" means the Security Agreement, DHC Pledge
Agreement, Control Agreements, Mortgages (as defined in the Facility Agreements)
and all other instruments or documents (pursuant to which a Lien to secure all
or any portion of the Obligations is purported or intended to be created,
granted, evidenced or perfected) delivered from time to time by any Loan Party
pursuant to the Detroit L/C Facility Documents, New L/C Facility Documents or
the High Yield Indenture in each case in order to grant to Collateral Agent a
Lien on any real, personal or mixed property as security for any or all of the
Obligations, as such instruments and documents may be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
pursuant to subsection 2.4.
"COMPANY" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL AGREEMENT" means an agreement, satisfactory in form and
substance to Detroit L/C Facility Agent and New L/C Agent and executed by the
financial institution or securities intermediary at which a Deposit Account or a
Securities Account, as the case may be,
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is maintained, pursuant to which such financial institution or securities
intermediary confirms and acknowledges Collateral Agent's security interest in
such account, and agrees that the financial institution or securities
intermediary, as the case may be, will comply with instructions originated by
Collateral Agent as to disposition of funds in such account, without further
consent by Company or any Subsidiary, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted pursuant to subsection 2.4.
"COUNTERPART" shall have the meaning assigned to that term in
subsection 6.1(l).
"COVANTA" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CPIH" means Covanta Power International Holdings, Inc., a
Delaware corporation, and its successors and assigns.
"CPIH SUBSIDIARIES" means, on and after the Closing Date, CPIH and
its Subsidiaries.
"CREDIT DOCUMENTS" means, collectively, (i) the New L/C Facility
Agreement and the other New L/C Facility Documents, (ii) the Detroit L/C
Facility Agreement and the other Detroit L/C Facility Documents, and (iii) the
High Yield Notes and the High Yield Indenture, in each case as they may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted thereunder and pursuant to subsection 2.5.
"CREDITOR PARTIES" means Detroit L/C Lenders, New L/C Lenders,
Detroit L/C Agents, New L/C Agent, Cash Management Bank and Collateral Agent.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or similar
account maintained with a Person engaged in the business of banking, including a
savings bank, savings and loan association, credit union or trust company.
"DETROIT L/C" or "DETROIT L/CS" means letters of credit issued or to
be issued from time to time under the Detroit L/C Facility Agreement, including
amendments thereto.
"DETROIT L/C AGENTS" means the Detroit L/C Facility Agent and
Detroit L/C Documentation Agent.
"DETROIT L/C BORROWER" shall have the meaning assigned to that term
in the introduction to this Agreement.
"DETROIT L/C CASH COLLATERAL ACCOUNT" means the cash collateral
account maintained with Collateral Agent pursuant to the Security Agreement to
secure the obligations of Detroit L/C Borrowers with respect to Detroit L/C
Exposure.
"DETROIT L/C COMMITMENT" means the commitment of a Detroit L/C
Lender to purchase and fund participations in Detroit L/Cs pursuant to the
Detroit L/C Facility Agreement.
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"DETROIT L/C DOCUMENTATION AGENT" shall have the meaning assigned to
that term in the introduction to this Agreement.
"DETROIT L/C EVENT OF DEFAULT" means an "Event of Default" under and
as defined in the Detroit L/C Facility Agreement.
"DETROIT L/C EXPOSURE" means, with respect to any Detroit L/C Lender
as of any date of determination, the sum of (a) in the event that Detroit L/C
Lender is a Detroit L/C Issuing Lender, the aggregate Detroit L/C Usage in
respect of all Detroit L/Cs issued by that Detroit L/C Lender (in each case net
of any participations purchased by other Detroit L/C Lenders in such Detroit
L/Cs or in any drawings thereunder not theretofore reimbursed by Detroit L/C
Borrowers) plus (b) the aggregate amount of all participations purchased by that
Detroit L/C Lender in any other outstanding Detroit L/Cs or any drawings under
any such other Detroit L/Cs not theretofore reimbursed by Detroit L/C Borrowers.
"DETROIT L/C FACILITY AGENT" shall have the meaning assigned to that
term in the introduction to this Agreement.
"DETROIT L/C FACILITY AGREEMENT" means (i) that certain credit
agreement dated as of the date hereof by and among Covanta and the other Detroit
L/C Borrowers, as borrowers, the Detroit L/C Lenders and Detroit L/C Agents, and
(ii) any credit agreement entered into by Detroit L/C Borrowers to refinance,
replace, renew or extend, in whole or in part, the credit agreement referenced
in clause (i) and the indebtedness and letters of credit issued thereunder to
the extent permitted pursuant to the New L/C Facility Agreement and the High
Yield Indenture, in the case of clause (i) or (ii), as such credit agreement may
be amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 2.5.
"DETROIT L/C FACILITY DOCUMENTS" means the "Credit Documents" as
defined in the Detroit L/C Facility Agreement (or any comparable term with
respect to any replacement Detroit L/C Facility Agreement not prohibited
hereunder).
"DETROIT L/C ISSUING LENDER" means, with respect to any Detroit L/C,
the Detroit L/C Lender that has issued such Detroit L/C pursuant to the Detroit
L/C Facility Agreement.
"DETROIT L/C LENDER" shall have the meaning assigned to that term in
the introduction to this Agreement.
"DETROIT L/C OBLIGATIONS" means any and all Obligations to the
extent arising under or with respect to the Detroit L/C Commitments or the
Detroit L/Cs, including fees and other amounts accruing or otherwise owed with
respect to the Detroit L/C Exposure, and any drawings (and interest accrued
thereon) under Detroit L/Cs not reimbursed by Detroit L/C Borrowers; provided,
however, that Obligations of any Loan Party (other than DHC) for interest or
letter of credit fees with respect to Detroit L/Cs and Detroit L/C Commitments
that accrue or may be incurred under any Detroit L/C Facility Document after the
commencement by or against any Loan Party of a Bankruptcy Proceeding shall be
included in Detroit L/C Obligations solely to the extent recoverable from such
Loan Party or its estate in such proceeding.
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"DETROIT L/C USAGE" means, as at any date of determination, the sum
of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Detroit L/Cs then outstanding plus (ii)
the aggregate amount of all drawings under Detroit L/Cs honored by the
applicable Detroit L/C Issuing Lender and not theretofore reimbursed by Detroit
L/C Borrowers.
"DEUTSCHE BANK" shall have the meaning assigned to that term in the
introduction to this Agreement.
"DHC" shall have the meaning assigned to that term in the
introduction to this Agreement.
"DHC PLEDGE AGREEMENT" means the pledge agreement executed and
delivered by DHC on the Closing Date, substantially in the form of Exhibit XI
annexed to the Detroit L/C Facility Agreement, as such pledge agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted pursuant to subsection 2.4.
"DISTRIBUTION" means, with respect to any Secured Obligation, (a)
any payment or distribution by Company or any of its Subsidiaries (including
CPIH Subsidiaries) of cash, securities or other assets and properties of any
kind whatsoever, real or personal, tangible or intangible, or mixed, whether now
owned or existing or hereafter acquired or arising and wheresoever located, by
set-off or otherwise, on account of such Secured Obligation, (b) any redemption,
purchase or other acquisition of such Secured Obligation by Company or any of
its Subsidiaries (including CPIH Subsidiaries) or (c) the granting of any Lien
to or for the benefit of the holders of such Secured Obligation in or upon any
or all assets and properties of any kind whatsoever, real or personal, tangible
or intangible, or mixed, whether now owned or existing or hereafter acquired or
arising and wheresoever located of Company or any of its Subsidiaries (including
CPIH Subsidiaries).
"ENFORCEMENT ACTION" shall mean the exercise by any Secured Party of
any of the enforcement rights and remedies under, and subject to the provisions
of, the Collateral Documents at any time on or after an Event of Default,
including any or all of the following: any motion to vacate any stay on
enforcement of the Liens on the Collateral, solicitation of bids from third
parties to conduct the liquidation of Collateral, the engagement or retention of
third parties for the purposes of marketing, promoting or selling all or any
Collateral, the commencement of any action to foreclose on the Liens on any of
the Collateral, notification of account debtors to make payments to any Secured
Party or its agents, any action to take possession of any Collateral or the
commencement of any legal proceedings or actions seeking payment of any Secured
Obligations or otherwise in connection with the preservation or protection of
any of the Collateral, its value or any rights or remedies therein or otherwise
or as may be deemed necessary or appropriate to enhance the likelihood or
maximize the repayment of the Secured Obligations.
"EVENT OF DEFAULT" means a Detroit L/C Event of Default and/or a New
L/C Event of Default and/or a High Yield Event of Default.
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"FACILITY AGREEMENTS" means the New L/C Facility Agreement and
Detroit L/C Facility Agreement.
"FISCAL YEAR" means the fiscal year of the Company and its
Subsidiaries ending on December 31st of each calendar year.
"GOVERNING BODY" means the board of directors or other body having
the power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"HIGH YIELD EVENT OF DEFAULT" means an "Event of Default" under and
as defined in the High Yield Indenture.
"HIGH YIELD GUARANTORS" means the Subsidiaries of Company party from
time to time to the High Yield Indenture as guarantors thereunder.
"HIGH YIELD INDENTURE" means (i) the indenture pursuant to which the
High Yield Notes are issued and (ii) any replacement indenture entered into in
connection with a refinancing, defeasance, renewal, replacement or extension of
the High Yield Notes permitted under the Facility Agreements, in the case of
clause (i) or (ii), as such indenture or replacement indenture may be amended,
supplemented or otherwise modified from time to time to the extent permitted
under the Facility Agreements.
"HIGH YIELD NOTEHOLDERS" means the holders from time to time of the
High Yield Notes.
"HIGH YIELD NOTES" means (i) the $230,000,000 in aggregate principal
amount at maturity of 8.25% Senior Notes due 2010 of Company issued pursuant to
the High Yield Indenture, and (ii) any indebtedness incurred to refinance,
renew, replace or extend the High Yield Notes permitted to be incurred under the
Facility Agreements; provided, that the initial principal amount (and issue
price) of such High Yield Notes on the Closing Date shall be $205,000,000.
"HIGH YIELD OBLIGATIONS" means the obligations of Company and High
Yield Guarantors under the High Yield Indenture and the High Yield Notes, as
applicable.
"HIGH YIELD TRUSTEE" shall have the meaning assigned to that term in
the introduction to this Agreement.
"IPP INTERNATIONAL SALES" means one or more sales or dispositions of
(i) the assets and/or operations of CPIH and its Subsidiaries and/or (ii) the
Capital Stock of CPIH or any of its Subsidiaries.
"JUNIOR CREDITOR" shall have the meaning assigned to that term in
subsection 4.2(f).
"LENDERS" means New L/C Lenders and Detroit L/C Lenders.
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"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN PARTIES" means Company, the other Borrowers, DHC, and High
Yield Guarantors.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT" means the
management services and reimbursement agreement entered into by CPIH, Company
and certain of their respective Subsidiaries on the Closing Date, in form and
substance satisfactory to the Detroit L/C Agents and New L/C Agent as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time to the extent permitted thereunder and pursuant to subsection 2.5(c).
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT BENEFICIARIES"
shall have the meaning assigned to that term in the introduction to this
Agreement.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT OBLIGORS" means the
"CPIH Entities" as such term is defined in the Management Services and
Reimbursement Agreement.
"MANDATORY PAYMENTS" means any amount described in subsections
2.3A(i)(a)-(f) of the Detroit L/C Facility Agreement or 2.4A(iii)(a)-(g) of the
New L/C Facility Agreement to be applied as a Mandatory Payment (as such term is
defined in each Facility Agreement).
"NET INSURANCE/CONDEMNATION PROCEEDS" means any cash payments or
Proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of (a)
income taxes reasonably estimated to be actually payable prior to the earlier of
(1) the date which is eighteen months from the date of such receipt and (2)
March 10, 2009 as a result of the receipt of such payments of proceeds and (b)
any actual, reasonable and documented out-of-pocket fees and expenses (including
reasonable legal fees, reasonable fees to advisors and severance costs that are
due (pursuant to a Contractual Obligation, or written employment policy
applicable to terminated employees generally, of Company or any of its
Subsidiaries in effect prior to the event causing or relating to the payment
referred to in clause (i) or (ii) hereof or pursuant to applicable law) and
payable on or prior to the receipt of such payment or proceeds to employees of
Company and its Subsidiaries that have been terminated as a result of the
relevant loss, taking or sale) paid to Persons other than Company and its
Subsidiaries and their respective Affiliates in connection with the relevant
loss, taking or sale or the adjustment or settlement of any claims of Company or
such Subsidiary in respect thereof; provided, however, that Net
Insurance/Condemnation Proceeds shall be reduced in an amount equal to the
amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to Contractual Obligations in effect on the
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Closing Date, or which were entered into after the Closing Date with respect to
the financing or acquisition of a Project, to use for purposes other than a
Mandatory Payment.
"NEW INVESTOR ASSURANCES" means any collateral, insurance policy,
letter of credit or other financial assurances provided by any New Investor or
any of its Affiliates (other than Company or any of its Subsidiaries (including
CPIH Subsidiaries)) to New L/C Lenders in connection with the New L/C Facility
Agreement.
"NEW INVESTORS" means X.X. Xxxx Laminar Portfolios, L.L.C., a
Delaware limited liability company, SZ Investments, L.L.C., a Delaware
limited liability company, and Third Avenue Trust, on behalf of Third Avenue
Value Fund Series.
"NEW L/C" or "NEW L/CS" means letters of credit issued or to be
issued (or deemed issued) by New L/C Issuing Lender pursuant to the New L/C
Facility Agreement, including amendments thereto.
"NEW L/C AGENT" shall have the meaning assigned to that term in the
introduction to this Agreement.
"NEW L/C AGGREGATE COMMITMENT" means one or more of the New
Revolving Loan Commitment or the New L/C Commitment or any combination thereof.
"NEW L/C AGGREGATE EXPOSURE" means, with respect to any New L/C
Lender as of any date of determination, the sum of (i) that New L/C Lenders' New
Revolving Loan Exposure and (ii) that New L/C Lender's New L/C Exposure.
"NEW L/C BORROWERS" shall have the meaning assigned to that term in
the introduction to this Agreement.
"NEW L/C CASH COLLATERAL ACCOUNT" means the cash collateral account
maintained with Collateral Agent pursuant to the Security Agreement to secure
the obligations of New L/C Borrowers with respect to New L/C Exposure.
"NEW L/C COMMITMENT" means the commitment of a New L/C Lender to
purchase and fund participations in New L/Cs pursuant to the New L/C Facility
Agreement.
"NEW L/C EVENT OF DEFAULT" means an "Event of Default" under and as
defined in the New L/C Facility Agreement.
"NEW L/C EXPOSURE" with respect to any New L/C Lender, means, as of
any date of determination, the sum of (a) in the event that New L/C Lender is a
New L/C Issuing Lender, the aggregate New L/C Usage in respect of all New L/Cs
issued by that New L/C Lender (in each case net of any participations purchased
by other New L/C Lenders in such New L/Cs or in any drawings thereunder not
theretofore reimbursed by New L/C Borrowers) plus (b) the aggregate amount of
all participations purchased by that New L/C Lender in any other outstanding New
L/Cs or any drawings under any such other New L/Cs not theretofore reimbursed by
New L/C Borrowers.
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"NEW L/C FACILITY AGREEMENT" means (i) that certain credit agreement
dated as of the date hereof by and among New L/C Borrowers, New L/C Lenders and
New L/C Agent, and (ii) any credit agreement entered into by New L/C Borrowers
to refinance, replace, renew or extend, in whole or in part, the credit
agreement referenced in clause (i) and the indebtedness and letters of credit
issued thereunder to the extent permitted pursuant to the Detroit L/C Facility
Agreement and the High Yield Indenture, in the case of clause (i) or (ii), as
such credit agreement may be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection 2.5.
"NEW L/C FACILITY DOCUMENTS" means the "Credit Documents" as defined
in the New L/C Facility Agreement (or any comparable term with respect to any
replacement New L/C Facility Agreement not prohibited hereunder).
"NEW L/C ISSUING LENDER" means, with respect to any New L/C, the New
L/C Lender that agrees or is otherwise obligated to issue such New L/C,
determined as provided in the New L/C Facility Agreement.
"NEW L/C LENDER" shall have the meaning assigned to that term in the
introduction to this Agreement.
"NEW L/C OBLIGATIONS" means any and all Obligations to the extent
arising under or with respect to the New L/C Aggregate Commitments, New
Revolving Loans or the New L/Cs, including principal and interest on any New
Revolving Loans and the fees and other amounts accruing or otherwise owed with
respect to the New L/C Aggregate Exposure, and any drawings (and interest
accrued thereon) under New L/Cs not reimbursed by New L/C Borrowers; provided,
however, that Obligations of any Loan Party (other than DHC) for interest,
commitment fees or letter of credit fees with respect to the New L/Cs, New
Revolving Loans or New L/C Aggregate Commitments and that accrue or may be
incurred under any New L/C Facility Document after the commencement by or
against any Loan Party (other than DHC) of a Bankruptcy Proceeding shall be
included in New L/C Obligations solely to the extent recoverable from such Loan
Party or its estate in such proceeding.
"NEW L/C USAGE" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all New L/Cs then outstanding plus (ii) the
aggregate amount of all drawings under New L/Cs honored by Issuing Lenders and
not theretofore reimbursed by New L/C Borrowers.
"NEW REVOLVING LOAN COMMITMENT" means the commitment of a New L/C
Lender to make New Revolving Loans to the New L/C Borrowers pursuant to the New
L/C Facility Agreement.
"NEW REVOLVING LOAN EXPOSURE" with respect to any New L/C Lender,
means, as of any date of determination (i) prior to the termination of the New
Revolving Loan Commitments, that New L/C Lender's Revolving Loan Commitment, and
(ii) after the termination of the New Revolving Loan Commitments, the aggregate
outstanding principal amount of the New Revolving Loans of that New L/C Lender.
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"NEW REVOLVING LOANS" means loans made from time to time by New L/C
Lenders to New L/C Borrowers as "Revolving Loans" under and as defined in the
New L/C Facility Agreement.
"OBLIGATIONS" means all obligations of every nature of Loan Parties
under the Credit Documents, including any liability of such Loan Party on any
claim arising out of or relating to the Credit Documents, whether or not the
right to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed or contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any bankruptcy, insolvency, reorganization or
other similar proceeding. Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Credit Documents include (a) the
obligation to pay principal, interest (including all interest which accrues
after the commencement of any case or proceeding in bankruptcy after the
insolvency of, or for the reorganization of, any Loan Party, whether or not
allowed in such case or proceeding), charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Borrower and any
other Loan Party under any Credit Document and (b) the obligation to reimburse
any amount in respect of any of the foregoing that any Agent or any Lender, in
its sole discretion, may elect to pay or advance on behalf of such Borrower or
other Loan Party; provided, that nothing in this definition shall be construed
as creating any obligations of DHC under the Credit Documents that are not
expressly set forth in such Credit Documents.
"OFFICER'S CERTIFICATE" means, as applied to any Person that is a
corporation, partnership, trust or limited liability company, a certificate
executed on behalf of such Person by one or more Officers of such Person or one
or more Officers of a general partner or a managing member if such general
partner or managing member is a corporation, partnership, trust or limited
liability company.
"PAYMENT IN FULL" and "PAID IN FULL" means (a) as to the Detroit L/C
Obligations, the payment and satisfaction in full in immediately available funds
of all of such funded Detroit L/C Obligations and either (i) the termination of
the Detroit L/C Commitments and the receipt by Collateral Agent of cash
collateral in the Detroit L/C Cash Collateral Account in an amount equal to one
hundred five (105%) percent of the aggregate Detroit L/C Usage then outstanding
or (ii) if the Detroit L/C Commitments have not been terminated, the receipt by
Collateral Agent of cash collateral in the Detroit L/C Cash Collateral Account
in an amount equal to 105% of the Detroit L/C Commitments of all Detroit L/C
Lenders, (b) as to the New L/C Obligations, the payment and satisfaction in full
in immediately available funds of all of such funded New L/C Obligations and
either (i) the termination of the New L/C Aggregate Commitments and the receipt
by Collateral Agent of cash collateral in the New L/C Cash Collateral Account in
an amount equal to one hundred five (105%) percent of the aggregate New L/C
Usage then outstanding or (ii) if the New L/C Aggregate Commitments have not
been terminated, the receipt by Collateral Agent of cash collateral in the New
L/C Cash Collateral Account in an amount equal to 105% of the New L/C
Commitments of all New L/C Lenders, (c) as to the High Yield Obligations, the
payment and satisfaction in full in immediately available funds of all of such
High Yield Obligations and the termination or defeasance (whether legally or as
to covenants only) of the financing arrangements provided by any High Yield
Noteholder to the Loan Parties (other than DHC) with respect thereto, and (d) as
to any other Secured
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Obligations, the payment and satisfaction in full in immediately available funds
of all such Secured Obligations then due and payable. If after receipt of any
payment of, or Proceeds of Collateral applied to the payment of, any of the
Secured Obligations, Collateral Agent or any other Secured Party, as applicable,
is required to surrender or return such payment or Proceeds to any Person for
any reason, then the Secured Obligations intended to be satisfied by such
payment or Proceeds shall be reinstated and continue and this Agreement shall
continue in full force and effect as if such payment or Proceeds had not been
received by Collateral Agent or such other Secured Party, as the case may be.
"PARTIES" means the High Yield Trustee, Loan Parties, and the
Creditor Parties from time to time party to this Agreement.
"PERSON" or "PERSONS" means and include natural persons,
corporations, limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies, Joint Ventures
(as defined in the Facility Agreements), associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether or
not legal entities, and governments (whether federal, state or local, domestic
or foreign, and including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
"PLAN OF REORGANIZATION" means the Debtors' Second Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code as filed with the
Bankruptcy Court on January 14, 2004 (and as revised and amended through March
2, 2004), together with the Reorganization Plan Supplement to Debtors' Second
Joint Plan of Reorganization filed with the Bankruptcy Court on February 18,
2004 in connection therewith.
"POTENTIAL EVENT OF DEFAULT" means a "Potential Event of Default"
under and as defined in the Detroit L/C Facility Agreement, a "Potential Event
of Default" under and as defined in the New L/C Facility Agreement or a
"Default" under and as defined in the High Yield Indenture.
"PROCEEDS" means "proceeds", as such term is defined in the UCC and,
in any event, shall include (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to any of the Loan Parties or Collateral
Agent from time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to any of the Loan
Parties from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral, by any
governmental body, authority, bureau or agency (or any person acting under color
of governmental authority), and (iii) any and all other consideration (in any
form whatsoever) or other amounts from time to time paid or payable under or in
connection with any of the Collateral upon disposition or otherwise.
"PROJECT" means any waste-to-energy facility, electrical generation
plant, cogeneration plant, water treatment facility or other facility for the
generation of electricity or engaged in another line of business in which
Company and its Subsidiaries are permitted to be engaged hereunder for which a
Subsidiary or Subsidiaries of Company (including CPIH Subsidiaries) was, is or
will be (as the case may be) an owner, operator, manager or builder, and
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shall also mean any two or more of such plants or facilities in which an
interest has been acquired in a single transaction, so long as such interest
constitutes an existing Investment on the Closing Date permitted under this
Agreement; provided, however, that a Project shall cease to be a Project of
Company and its Subsidiaries at such time that Company or any of its
Subsidiaries ceases to have any existing or future rights or obligations
(whether direct or indirect, contingent or matured) associated therewith.
"REQUISITE DETROIT L/C LENDERS" means Detroit L/C Lenders having or
holding more than 50% of the Detroit L/C Exposure of all Detroit L/C Lenders;
provided, however, that prior to the Closing Date, for purposes of this
definition the Detroit L/C Exposure of each Detroit L/C Lender shall equal the
original Detroit L/C Commitment of such Detroit L/C Lender on the Closing Date.
"REQUISITE NEW L/C LENDERS" means New L/C Lenders having or holding
more than 50% of the New L/C Aggregate Exposure of all New L/C Lenders;
provided, however, that prior to the Closing Date, for purposes of this
definition the New L/C Aggregate Exposure of each New L/C Lender shall equal the
original New L/C Commitment of such New L/C Lender on the Closing Date.
"REQUISITE OBLIGEES" means,
(i) until such time as all Detroit L/C Obligations are Paid in Full
under clause (a)(i) of the definition thereof and no Detroit L/Cs or other
Detroit L/C Obligations are outstanding, for purposes of any exercise of any
Enforcement Action or other rights with respect to the Detroit L/C Cash
Collateral Account and any Collateral from time to time on deposit therein
(including any application thereof), Requisite Detroit L/C Lenders;
(ii) until such time as all New L/C Obligations are Paid in Full and
no New L/Cs or other New L/C Obligations are outstanding, for purposes of any
exercise of any Enforcement Action or other rights with respect to the New L/C
Cash Collateral Account and any Collateral from time to time on deposit therein
(including any application thereof), Requisite New L/C Lenders;
(iii) subject to clauses (i) and (ii) above, until Payment in Full
of all Detroit L/C Obligations, (a) for so long as no drawing has occurred under
any Detroit L/C, no Event of Default has occurred and is continuing under
subsection 8.1 of the Detroit L/C Facility Agreement and no Bankruptcy
Proceeding has been commenced by or against any Loan Party, Lenders having or
holding of more than 50% of the sum of (1) the aggregate Detroit L/C Exposure of
all Detroit L/C Lenders and (2) the aggregate New L/C Aggregate Exposure of all
New L/C Lenders, and (b) from and after the occurrence of any drawing under any
Detroit L/C which is not reimbursed in full by Detroit L/C Borrowers, the
occurrence and continuance of a Detroit L/C Event of Default under subsection
8.1 of the Detroit L/C Facility Agreement or the commencement of a Bankruptcy
Proceeding by or against any Loan Party, Requisite Detroit L/C Lenders;
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(iv) subject to clauses (i) and (ii) above, from and after Payment
in Full of all Detroit L/C Obligations and until Payment in Full of all New L/C
Obligations, Requisite New L/C Lenders; and
(v) subject to clauses (i) and (ii) above, from and after Payment in
Full of all Detroit L/C Obligations and New L/C Obligations, holders of more
than 50% of the aggregate outstanding principal amount of the High Yield Notes.
"SECURED PARTIES" means the Creditor Parties, the High Yield
Noteholders and the High Yield Trustee.
"SECURED OBLIGATIONS" means the collective reference to all Detroit
L/C Obligations, all New L/C Obligations, all High Yield Obligations and all
Obligations owing to Collateral Agent hereunder or under any Collateral
Document, and all Cash Management Obligations.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACCOUNT" means an account to which a financial asset is
or may be credited in accordance with an agreement under which the Person
maintaining the account undertakes to treat the Person for whom the account is
maintained as entitled to exercise the rights that comprise the financial asset.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered by Borrowers on the Closing Date pursuant to the Detroit L/C Facility
Agreement, New L/C Facility Agreement and High Yield Indenture, as such
agreement may from time to time hereafter be amended, restated, supplemented or
otherwise modified to the extent permitted pursuant to subsection 2.4.
"SENIOR AGENT" means, (i) until Payment in Full of all Detroit L/C
Obligations, Detroit L/C Facility Agent and (ii) from and after Payment in Full
of all Detroit L/C Obligations and until Payment in Full of all New L/C
Obligations, New L/C Agent, and (iii) after Payment in Full of all Detroit L/C
Obligations and New L/C Obligations, High Yield Trustee.
"SENIOR CREDITOR" shall have the meaning assigned to that term in
subsection 4.2(f).
"SUBJECT FISCAL YEAR" shall have the meaning assigned to that term
in subsection 4.1(b).
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, trust, limited liability company, association, joint venture or
other business entity of which more
16
than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of the members of the Governing Body is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof. Any reference contained
herein to one or more Subsidiaries of Company shall, unless otherwise expressly
indicated, not include CPIH or any of its Subsidiaries.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 6.1(c).
"THIRD-PARTY GUARANTY" shall have the meaning assigned to that term
in subsection 4.2(i).
"UCC" means the Uniform Commercial Code as the same may, from time
to time, be in effect in the State of New York; provided, however, in the event
that, by reason of mandatory provisions of law, the priority of any Secured
Party's security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New York,
the term "UCC" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such priority and
for purposes of definitions related to such provisions.
"UNITED STATES" means the United States of America.
1.2 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
(a) Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on
the reference.
(b) References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise
specifically provided.
(c) The use of the word "include" or "including", when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or
not nonlimiting language (such as "without limitation" or "but not limited
to" or words of similar import) is used with reference thereto, but rather
shall be deemed to refer to all other items or matters that fall within
the broadest possible scope of such general statement, term or matter.
(d) In the event of any refinancing, replacement or extension of any
Facility Agreement, references in this Agreement to sections or
subsections of such Facility Agreement shall refer to the functionally
equivalent sections or subsections in such refinanced, replaced or
extended agreement as the context requires.
SECTION II
2.1 APPOINTMENT AS COLLATERAL AGENT. Each Creditor Party executing
this Agreement, and High Yield Trustee and each High Yield Noteholder, by its
acceptance of the
17
benefits of the Collateral Documents and of this Agreement, (i) appoints Bank of
America to serve as collateral agent and representative of each such Secured
Party (to the extent applicable) under this Agreement and each of the Collateral
Documents (in such capacity, together with its successors in such capacity, the
"COLLATERAL AGENT") and (ii) irrevocably authorizes Collateral Agent to act as
agent for the Secured Parties for the purpose of executing and delivering, on
behalf of all such Secured Parties, the Collateral Documents and, subject to the
provisions of this Agreement, for the purpose of exercising such powers, rights
and remedies hereunder and under the other Collateral Documents as are
specifically delegated or granted to Collateral Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. For the avoidance of doubt, it is understood and agreed that
the Collateral Agent is the "Secured Party" or, as the case may be, the
"Mortgagee" referred to in the Collateral Documents. Each Creditor Party and
Collateral Agent, and High Yield Trustee and each High Yield Noteholder, by its
acceptance of the benefits of the Collateral Documents and this Agreement,
hereby appoint each other Secured Party as agent for the purpose of perfecting
Collateral Agent's security interest in Collateral that, in accordance with the
UCC, can be perfected by possession or control.
2.2 DECISIONS RELATING TO ENFORCEMENT ACTIONS AND OTHER MATTERS
VESTED IN REQUISITE OBLIGEES.
(a) Collateral Agent agrees to take such Enforcement Actions and all
such actions with respect to Collateral which is perfected only by control
of such Collateral, in each case as may be directed by Requisite Obligees
(it being understood and agreed that if at any time Collateral Agent
determines that the requisite percentages constituting Requisite Obligees
shall have been obtained, the Collateral Agent may and shall be fully
authorized, as of such time and without the need for further direction
from any Secured Party, to take or not take such action as the Requisite
Obligees direct); provided, however, that notwithstanding anything in this
Agreement to the contrary, Collateral Agent shall not be required to take
any action that is in its judgment contrary to law or to the terms of this
Agreement or any or all of the Collateral Documents or which would in its
opinion subject it or any of its officers, employees or directors to
liability, and Collateral Agent shall not be required to take any action
under this Agreement or any or all of the Collateral Documents unless and
until Collateral Agent shall be indemnified to its satisfaction by the
relevant Parties against any and all losses, costs, expenses or
liabilities in connection therewith.
(b) Each Creditor Party executing this Agreement or an
acknowledgment hereto, and the High Yield Trustee and each holder of a
High Yield Note, by its acceptance of the benefits hereof and of the
Collateral Documents, agree that Collateral Agent may act as Requisite
Obligees may request (regardless of whether any individual Party or any
other Secured Party (including the holders of the High Yield Notes)
agrees, disagrees or abstains with respect to such request), that
Collateral Agent shall have no liability for acting in accordance with
such request (provided such action does not conflict with the express
terms of this Agreement) and that no Secured Party shall have any
liability to any other Secured Party for any such request, except, in each
case, liability arising from the gross negligence or willful misconduct of
such Person. Collateral Agent shall give prompt notice to all Creditor
Parties and the High Yield
18
Trustee of actions taken pursuant to the instructions of Requisite
Obligees; provided, however, that the failure to give any such notice
shall not impair the right of Collateral Agent to take any such action or
the validity or enforceability under this Agreement and the applicable
Collateral Documents of the action so taken.
(c) Collateral Agent may at any time request directions from the
Requisite Obligees with respect to the Collateral Documents as to any
course of action or other matter relating hereto or to the Collateral
Documents. Except as otherwise provided in the Collateral Documents,
directions given by Requisite Obligees to Collateral Agent with respect to
the Collateral and Collateral Documents shall be binding on all Secured
Parties for all purposes (provided such directions do not conflict with
the express terms of this Agreement).
(d) Each Creditor Party, the High Yield Trustee, and each holder of
a High Yield Note, by accepting the benefits hereof and of the Collateral
Documents, agrees not to take any Enforcement Action whatsoever, in each
case except through Collateral Agent in accordance with this Agreement;
provided, however, that (i) Detroit L/C Agents and Detroit L/C Lenders may
apply Collateral on deposit in the Detroit L/C Cash Collateral Account to
the payment of the Detroit L/C Obligations and otherwise exercise rights
of setoff with respect thereto, in each case in accordance with the terms
of the Detroit L/C Facility Agreement and the Security Agreement and (ii)
New L/C Agent and New L/C Lenders may apply Collateral on deposit in the
New L/C Cash Collateral Account to the payment of the New L/C Obligations
and otherwise exercise rights of setoff with respect thereto, in each case
in accordance with the terms of the New L/C Facility Agreement and the
Security Agreement.
2.3 NET INSURANCE/CONDEMNATION PROCEEDS.
(a) Unless prohibited by contractual or other legal requirement, all
policies of insurance required to be maintained under any Credit Document
shall (a) name Collateral Agent, for the benefit of Secured Parties, as an
additional insured thereunder as its interests may appear and (b) in the
case of each business interruption and casualty insurance policy, contain
a loss payable clause or endorsement, satisfactory in form and substance
to Detroit L/C Facility Agent and New L/C Agent, that names Collateral
Agent for the benefit of Secured Parties as the loss payee thereunder for
any covered loss in excess of $1,000,000 and provides for at least 30 days
prior written notice to Collateral Agent of any modification or
cancellation of such policy. As soon as practicable after the Closing
Date, Company shall deliver to Agents a certificate from Borrowers'
insurance broker(s) or other evidence satisfactory to it that all
insurance required to be maintained pursuant to this subsection 2.3 is in
full force and effect and that Collateral Agent on behalf of Secured
Parties has been named as additional insured and/or loss payee thereunder
to the extent required under this subsection 2.3.
(b) Upon receipt by Collateral Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net Insurance/Condemnation
Proceeds (if it had received them directly) pursuant to the Detroit L/C
Facility Agreement (or, if the Detroit L/C Obligations have
19
been Paid in Full, the New L/C Facility Agreement), Collateral Agent
shall, and Company hereby authorizes Collateral Agent to, apply such Net
Insurance/Condemnation Proceeds as provided in subsection 4.1(a) or, to
the extent applicable, subsection 4.2 and (b) to the extent the foregoing
clause (a) does not apply, Collateral Agent shall deliver such Net
Insurance/Condemnation Proceeds to Company, and (1) Company and its
Subsidiaries may retain and apply any portion thereof that is business
interruption insurance proceeds for working capital purposes or any other
purposes not prohibited under the Facility Agreements and (2) Company
shall, or shall cause one or more of its Subsidiaries to, promptly apply
such Net Insurance/Condemnation Proceeds that are not business
interruption insurance proceeds to the costs of repairing, restoring, or
replacing the assets in respect of which such Net Insurance/Condemnation
Proceeds were received; provided, however that if at any time Senior Agent
reasonably determines (A) that Company or such Subsidiary is not
proceeding diligently with such repair, restoration or replacement or that
such repair, restoration or replacement cannot be completed within 180
days after the receipt by Collateral Agent of such Net
Insurance/Condemnation Proceeds, Senior Agent may direct Collateral Agent,
and Company hereby authorizes Senior Agent and Collateral Agent to apply
such Net Insurance/Condemnation Proceeds as provided in subsection 4.1(a).
2.4 AMENDMENTS, MODIFICATIONS, WAIVERS AND RELEASES. Notwithstanding
anything in the Facility Agreements, High Yield Indenture, Collateral Documents
and other Credit Documents to the contrary:
(a) except in connection with any Enforcement Action or the release
of any cash on deposit in any Cash Collateral Account, the release of the
Lien granted in favor of Collateral Agent on all or substantially all of
the Collateral under the Collateral Documents shall require the prior
written consent of, until Payment in Full of all Detroit L/C Obligations,
each Detroit L/C Lender and, until Payment if Full of all New L/C
Obligations, each New L/C Lender; provided that no such consent shall be
required in connection with any IPP International Sale provided that the
consideration received for the assets subject to such IPP International
Sale shall be in an amount at least equal to the fair market value
thereof; and
(b) except as set forth in subsection 2.4(a), any amendment,
modification, termination or waiver of, any Collateral Documents shall
require the prior written consent of (i) until Payment in Full of all
Detroit L/C Obligations, Requisite Detroit L/C Lenders, (ii) until Payment
in Full of all New L/C Obligations, Requisite New L/C Lenders, and (iii)
upon Payment in Full of all Detroit L/C Obligations and New L/C
Obligations, holders of more than 50% of the principal amount of the High
Yield Notes; provided, however, that (i) no such amendment, modification,
termination or waiver shall, without the consent of Requisite Detroit L/C
Lenders, amend, modify, terminate or waive, or have the effect of
amending, modifying, terminating or waiving, Section 12 (Detroit L/C Cash
Collateral Account) of the Security Agreement or the rights of Collateral
Agent and Detroit L/C Lenders under such Section or otherwise with respect
to the Detroit L/C Cash Collateral Account or the Collateral on deposit
therein from time to time, and (ii) no such amendment, modification,
termination or waiver shall, without the consent of Requisite New L/C
Lenders, amend, modify, terminate or waive, or have the effect of
amending,
20
modifying, terminating or waiving, Section 13 (New L/C Cash Collateral
Account) of the Security Agreement or the rights of Collateral Agent and
New L/C Lenders under such Section or otherwise with respect to the New
L/C Cash Collateral Account or the Collateral on deposit therein from time
to time.
2.5 AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO CREDIT
Documents. Any amendment or modification of, or waiver of compliance with the
terms of any Credit Document shall be subject to the following requirements:
(a) Subject to the provisions of subsection 2.4, and until the
termination of the Detroit L/C Facility Agreement and the Payment in Full
of all Detroit L/C Obligations, without the prior written consent of
Requisite Detroit L/C Lenders, New L/C Lenders may not amend, restate,
modify or waive (or receive any payment consistent with an amendment,
restatement, modification or waiver of) any material provision of any of
the New L/C Facility Documents, unless (i) the terms of the New L/C
Facility Documents as so amended, restated, modified or waived are not
more disadvantageous to Company and its Subsidiaries and the Detroit L/C
Lenders (in a manner deemed material by Detroit L/C Agents) than the New
L/C Facility Documents in effect on the Closing Date (it being understood
and agreed that any amendment, restatement, modification or waiver having
the effect of (1) increasing the maximum amount of any commitment to
extend loans (as opposed to letters of credit) under the New L/C Facility
Documents, or (2) reducing, delaying or waiving any otherwise required
reduction in the amount of any commitment to extend loans or letters of
credit under the New L/C Facility Documents, shall be deemed to be more
disadvantageous for purposes of this clause (i) without further notice or
other action by Detroit L/C Agents), (ii) the aggregate amount of
indebtedness and letters of credit outstanding, and additional commitments
to extend credit, if any, under the New L/C Facility Documents as so
amended, restated, modified or waived, do not exceed the aggregate amount
of the commitments to extend credit in effect under the New L/C Facility
Documents on the Closing Date plus ---- $5,000,000, (iii) the obligations
under (and the Liens securing) such New L/C Facility Documents as so
amended, restated, modified or waived are subject to this Agreement on
terms substantively identical to the terms applicable to the obligations
in effect under the New L/C Facility Documents on the Closing Date , and
(iv) Company provides to Detroit L/C Agents reasonable prior advance
written notice of such proposed amendment, restatement, modification or
waiver and copies of all material contracts or other agreements being
entered into in connection therewith.
(b) Subject to the provisions of subsection 2.4, and until the
termination of the New L/C Facility Agreement and the Payment in Full of
all New L/C Obligations, without the prior written consent of Requisite
New L/C Lenders, Detroit L/C Lenders may not amend, restate, modify or
waive (or receive any payment consistent with an amendment, restatement,
modification or waiver of) any material provision of any of the Detroit
L/C Facility Documents, unless (i) the terms of the Detroit L/C Facility
Documents as so amended, restated, modified or waived are not more
disadvantageous to Company and its Subsidiaries and the New L/C Lenders
(in a manner deemed material by New L/C Agent) than the Detroit L/C
Facility Documents in effect on the Closing Date (it being understood and
agreed that any amendment, restatement, modification or waiver
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having the effect of (1) increasing the maximum amount of any commitment
to extend loans (as opposed to letters of credit) under the Detroit L/C
Facility Documents, or (2) reducing, delaying or waiving any otherwise
required reduction in the amount of any commitment to extend loans or
letters of credit under the Detroit L/C Facility Documents, shall be
deemed to be more disadvantageous for purposes of this clause (i) without
further notice or other action by New L/C Agent), (ii) the aggregate
amount of indebtedness and letters of credit outstanding, and additional
commitments to extend credit, if any, under the Detroit L/C Facility
Documents as so amended, restated, modified or waived, do not exceed the
aggregate amount of the commitments to extend credit in effect under the
Detroit L/C Facility Documents on the Closing Date plus $5,000,000, (iii)
the obligations under (and the Liens securing) such Detroit L/C Facility
Documents as so amended, restated, modified or waived are subject to this
Agreement on terms substantively identical to the terms applicable to the
obligations in effect under the Detroit L/C Facility Documents on the
Closing Date, and (iv) Company provides to New L/C Agent reasonable prior
advance written notice of such proposed amendment, restatement,
modification or waiver and copies of all material contracts or other
agreements being entered into in connection therewith.
(c) Until (i) the termination of the Detroit L/C Facility Agreement
and the Payment in Full of all Detroit L/C Obligations, without the prior
written consent of Requisite Detroit L/C Lenders and (ii) the termination
of the New L/C Facility Agreement and the Payment in Full of all New L/C
Obligations, without the prior written consent of Requisite New L/C
Lenders, Company shall not, and shall not permit any of its Subsidiaries
(including CPIH Subsidiaries) to amend, restate, modify or waive (or make
any payment consistent with an amendment, restatement, modification or
waiver of) any material provision of the Management Services and
Reimbursement Agreement if the effect of such amendment, restatement,
modification or waiver, together with all other amendments, restatements,
modifications or waivers made, (a) is to impose additional material
obligations on, or confer material additional rights to the holders
thereof (or to other obligees with respect thereto) against, Company or
any of its Subsidiaries, (b) is otherwise adverse to the interests of the
Detroit L/C Lenders in a manner deemed material in the judgment of Detroit
L/C Agents or Requisite Detroit L/C Lenders so notifying Detroit L/C
Agents or Company, or (c) is otherwise adverse to the interests of the New
L/C Lenders in a manner deemed material in the judgment of New L/C Agent
or Requisite New L/C Lenders so notifying New L/C Agents or Company.
(d) Each Lender acknowledges and agrees that Borrowers have agreed
to and are bound by the provisions of subsection 6.13 (Most Favored
Nations Payments) of each Facility Agreement.
SECTION III
3.1 PRIORITY OF LIENS.
(a) Notwithstanding the order or time of attachment, or the order,
time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of perfecting a
security interest in favor of Collateral Agent
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in any Collateral, and notwithstanding any conflicting terms or conditions
which may be contained in any of the Credit Document, the Secured Parties
agree that, as among the Secured Parties the following Lien priorities
shall strictly apply in defining the respective Lien priorities of each
Secured Party in the Collateral (provided, however that, in the case of
the Collateral held as cash collateral in the Detroit L/C Cash Collateral
Account for the Detroit L/C Obligations and in the New L/C Cash Collateral
Account for New L/C Obligations, such cash collateral shall have the
priorities set forth in subsection 3.1(b) and 3.1(c), respectively, until
released pursuant to subsection 4.2(c), in which case the following
priorities apply):
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing from
time to time to the Collateral Agent, in its capacity as Collateral Agent,
to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing, on a pari passu basis, the
Secured Obligations owing from time to time to the Detroit L/C Agents and
New L/C Agent, in their capacities as Detroit L/C Agents and New L/C
Agent, respectively, to the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing, on a pari passu basis, (i) the
remaining Detroit L/C Obligations, and (ii) the Cash Management
Obligations, in each case to the full extent thereof;
(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining New L/C Obligations
to the full extent thereof; and
(5) fifth: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the High Yield Obligations to the
full extent thereof.
(b) Notwithstanding the order or time of attachment, or the order,
time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of perfecting a
security interest in favor of Collateral Agent in any Collateral, and
notwithstanding any conflicting terms or conditions which may be contained
in any of the Credit Document, the Secured Parties agree that, as among
the Secured Parties the following Lien priorities shall strictly apply in
defining the respective Lien priorities of each Secured Party in cash
collateral held in the Detroit L/C Cash Collateral Account:
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing from
time to time to the Collateral Agent, in its capacity as Collateral Agent,
to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing from
time to time to the Detroit L/C Agents, in their capacities as Detroit L/C
Agents, to the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining Detroit L/C
Obligations to the full extent thereof; and
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(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent in the order of priority provided for in subsection
3.1(a).
(c) Notwithstanding the order or time of attachment, or the order,
time or manner of perfection, or the order or time of filing or
recordation of any document or instrument, or other method of perfecting a
security interest in favor of Collateral Agent in any Collateral, and
notwithstanding any conflicting terms or conditions which may be contained
in any of the Credit Document, the Secured Parties agree that, as among
the Secured Parties the following Lien priorities shall strictly apply in
defining the respective Lien priorities of each Secured Party in cash
collateral held in the New L/C Cash Collateral Account:
(1) first, the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing from
time to time to the Collateral Agent, in its capacity as Collateral Agent,
to the full extent thereof;
(2) second: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the Secured Obligations owing from
time to time to the New L/C Agent, in their capacity as New L/C Agent, to
the full extent thereof;
(3) third: the Liens upon the Collateral in favor of
Collateral Agent to the extent securing the remaining New L/C Obligations
to the full extent thereof; and
(4) fourth: the Liens upon the Collateral in favor of
Collateral Agent in the order of priority provided for in subsection
3.1(a).
3.2 PRIORITIES UNAFFECTED BY ACTION OR INACTION. The Lien priorities
in subsection 3.1 shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, renewal, restatement or refinancing of any
of the Secured Obligations, nor by any action or inaction which Collateral Agent
or any other Secured Party may take or fail to take in respect of the
Collateral.
SECTION IV
4.1 APPLICATION OF MANDATORY PREPAYMENTS UNDER FACILITY AGREEMENTS.
Notwithstanding anything in the Credit Documents to the contrary but subject in
all respects to subsection 4.2, so long as any Detroit L/C Obligations and New
L/C Obligations are outstanding any Mandatory Payments made pursuant to
subsections 2.3A(i)(a) - (g) of the Detroit L/C Facility Agreement and
subsections 2.4A(iii)(a) - (g) of the New L/C Facility Agreement shall be
applied as follows:
(a) Any Mandatory Payments made pursuant to subsections 2.3A(i)(a) -
(b) of the Detroit L/C Facility Agreement and subsections 2.4A(iii)(a) -
(b) of the New L/C Facility Agreement shall be applied first, to repay
funded amounts (if any) under the Detroit L/Cs and then to cash
collateralize the Detroit L/Cs and the Detroit L/C Commitments under the
Security Agreement in an amount, taken together with all then existing
cash collateral on deposit in the Detroit L/C Cash Collateral Account for
the
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Detroit L/C Commitments, equal to 105% of the Detroit L/C Commitments and
second, to reduce the New L/C Aggregate Exposure in accordance with
subsection 4.1(e).
(b) Any Mandatory Payments made pursuant to subsections 2.3A(i)(c) -
(e) of the Detroit L/C Facility Agreement and subsections 2.4A(iii)(c) -
(e) of the New L/C Facility Agreement shall be applied as follows: (i) an
amount equal to 50% of such Mandatory Payment shall be applied to repay
funded amounts (if any) under the Detroit L/Cs and then to cash
collateralize the Detroit L/Cs and the Detroit L/C Commitments under the
Security Agreement up to an amount, taken together with all then existing
cash collateral on deposit in the Detroit L/C Cash Collateral Account for
the Detroit L/C Commitments, equal to 105% of the Detroit L/C Commitments,
(ii) an amount equal to 50% of such Mandatory Payment shall be applied to
reduce the New L/C Aggregate Exposure in accordance with subsection 4.1(e)
and (iii) if any proceeds of a Mandatory Prepayment remain after
application as set forth in clause (i) or (ii), then such remaining
proceeds shall be applied as if it were proceeds required to be applied
pursuant to the other such clause.
(c) Any Mandatory Payments made pursuant to subsections 2.3A(i)(f)
of the Detroit L/C Facility Agreement and subsections 2.4A(iii)(f) of the
New L/C Facility Agreement shall be applied as follows (i) an amount equal
to 50% of such Mandatory Payment shall be applied to repay funded amounts
(if any) under the Detroit L/Cs and then to cash collateralize the Detroit
L/Cs and the Detroit L/C Commitments under the Security Agreement up to an
amount, taken together with all then existing cash collateral on deposit
in the Detroit L/C Cash Collateral Account for the Detroit L/C
Commitments, equal to 105% of the Detroit L/C Commitments, (ii) an amount
equal to 50% of such Mandatory Payment shall be applied to reduce the New
L/C Aggregate Exposure in the following manner: first, to New L/C
Exposure, with the amount applied to New L/C Exposure being applied to
repay all funded amounts, if any, under the New L/Cs and then to cash
collateralize the New L/C Exposure outstanding (after giving effect to the
foregoing repayment) in an amount, taken together with all then existing
cash collateral for such New L/C Exposure, equal to 105% of such New L/C
Exposure; and second, to repay outstanding New Revolving Loans to the full
extent thereof, and (iii) if any proceeds of a Mandatory Prepayment remain
after application as set forth in clause (i) or (ii), then such remaining
proceeds shall be applied as if it were proceeds required to be applied
pursuant to the other such clause. Notwithstanding the foregoing,
Borrowers and Lenders hereby agree that any cash applied to cash
collateralize Detroit L/C Exposure or New L/C Exposure pursuant to this
subsection 4.1(c) with respect to a cash balance on June 30 or December 31
of any Fiscal Year (the "SUBJECT FISCAL YEAR") shall, in the event that
the amount of such cash applied to cash collateralize Detroit L/C Exposure
and New L/C Exposure exceeds 50% of the Annual Free Cash Flow for the
Subject Fiscal Year, be released to Borrowers to the extent of such
excess, with the amount of cash so released being released pro rata from
the amounts on deposit in the Detroit L/C Cash Collateral Account and New
L/C Cash Collateral Account based on the amount of such excess applied to
cash collateralize Detroit L/C Exposure and New L/C Exposure (but in no
event shall more cash be so released from any Collateral Account than the
aggregate amount applied pursuant to this subsection 4.1(c) with respect
to the Subject Fiscal Year and deposited to such Collateral Account) after
the 60th day of the following Fiscal Year,
25
promptly following Borrowers' certification of such excess; provided,
however, that such release shall not be required if, at the time such
release would otherwise be required, a Detroit L/C Event of Default or New
L/C Event of Default shall have occurred and be continuing.
(d) Any Mandatory Payments made pursuant to subsection 2.3A(i)(g) of
the Detroit L/C Facility Agreement and subsection 2.4A(iii)(g) of the New
L/C Facility Agreement shall be applied pursuant to subsection 4.2(a).
(e) All Mandatory Prepayments of the New L/C Aggregate Exposure
referenced in subsections 4.1(a) and 4.1(b) shall be applied in the
following manner: first, to New L/C Exposure, with the amount applied to
New L/C Exposure being applied to repay all funded amounts, if any, under
the New L/Cs and then to cash collateralize the New L/C Exposure
outstanding (after giving effect to the foregoing repayment) in an amount,
taken together with all then existing cash collateral for such New L/C
Exposure, equal to 105% of such New L/C Exposure, and, concurrently with
any such repayment or cash collateralization of New L/C Exposure,
effecting a permanent reduction in the New L/C Commitment by the amount of
such repayment or cash collateralization of New L/C Exposure; second, to
repay outstanding New Revolving Loans to the full extent thereof and to
concurrently permanently reduce (x) the New L/C Commitments and (y) to the
extent that any such reduction in New L/C Commitments would cause the New
L/C Commitments to be less than the Revolver Loan Commitments then in
effect, the Revolver Commitments by the amount of such difference; and
third, to permanently reduce the unutilized New L/C Commitments and, to
the extent that any reduction in New L/C Commitments would cause the New
L/C Commitments to be less than the Revolver Loan Commitments then in
effect, to permanently and concurrently reduce the Revolver Commitments by
the amount of such difference.
4.2 APPLICATION OF PROCEEDS OF COLLATERAL, ETC.
(a) Except as provided in subsection 4.2(c) and 4.2(d) below, upon
the occurrence and during the continuation of an Event of Default or upon
the termination of either the Detroit L/C Commitments or the New L/C
Aggregate Commitments, if requested by Requisite Detroit L/C Lenders with
respect to any Detroit L/C Event of Default or termination of Detroit L/C
Commitments, or if requested by Requisite New L/C Lenders with respect to
any New L/C Event of Default and termination of New L/C Aggregate
Commitments, or holders of more than 50% of the High Yield Notes with
respect to a High Yield Event of Default, (1) all Mandatory Payments or
other payments received by any Agent or other Secured Party on account of
the Obligations, whether from any Loan Party or otherwise, shall promptly
be delivered to Collateral Agent and upon receipt by Collateral Agent,
applied by Collateral Agent against the Secured Obligations and (2) all
Proceeds received by Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the
Collateral or other Enforcement Action may, in the discretion of Senior
Agent upon written direction to Collateral Agent, be held by Collateral
Agent as Collateral for, and/or (then or at any time thereafter) applied
in full or in part by Collateral Agent against, the applicable
26
Secured Obligations, in each case under clauses (1) and (2) in the
following order of priority:
(i) First, to the payment of the costs and expenses of the
exercise of rights and remedies and such sale, collection or other
realization or Enforcement Action, including reimbursement of all
expenses, liabilities and advances made or incurred by Collateral Agent in
connection therewith (including, for reasonable cost, fees and expenses of
counsel and other professionals and agents retained by the Collateral
Agent) and all amounts for which Collateral Agent is entitled to
compensation, reimbursement and indemnification under any Credit Document
and any other amounts then owing to Collateral Agent, in its capacity as
Collateral Agent, pursuant to the Collateral Documents;
(ii) Second, to the extent proceeds remain after application
as described in clause (i) above, pro rata among the following, based on
the amounts outstanding as of any date of determination: all Secured
Obligations owing to Detroit L/C Agents and New L/C Agent, in their
capacities as Detroit L/C Agents and New L/C Agent, respectively;
(iii) Third, to the extent proceeds remain after application
as described in clauses (i) and (ii) above, pro rata among the following,
based on the amounts outstanding as of any date of determination: (i) all
remaining Detroit L/C Obligations, and (ii) all Cash Management
Obligations until all Detroit L/C Obligations and Cash Management
Obligations have been Paid in Full;
(iv) Fourth, to the extent proceeds remain after application
as described in clauses (i) through (iii) above, to the payment of the
remaining New L/C Obligations until all New L/C Obligations have been Paid
in Full;
(v) Fifth, to the extent proceeds remain after application as
described in clauses (i) through (iv) above, to the payment of the High
Yield Note Obligations, until all such High Yield Note Obligations have
been Paid in Full; and
(vi) Sixth, after Payment in Full of all Secured Obligations
under clauses (i) through (v) above, to Loan Parties (other than DHC) or
their successors or assigns, or to whosoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct, of
any surplus then remaining from such Proceeds.
(b) Notwithstanding anything in subsection 4.2(a) to the contrary,
(i) in the event that no Detroit L/C Event of Default has occurred and is
continuing under subsection 8.1 of the Detroit L/C Facility Agreement and
no Bankruptcy Proceeding has been commenced by or against any Loan Party,
the New L/C Lenders and New L/C Agent shall be entitled to receive
payments of current interest and fees when due under the New L/C Facility
Agreement; (ii) in the event that no Detroit L/C Event of Default has
occurred and is continuing under subsection 8.1 of the Detroit L/C
Facility Agreement and no New L/C Event of Default has occurred and is
continuing under subsection 8.1 of the New L/C Facility Agreement and no
Bankruptcy Proceeding has
27
been commenced by or against any Loan Party and subsection 8.1 of the
Detroit L/C Facility Agreement and New L/C Facility Agreement, the High
Yield Trustee, on behalf of the High Yield Noteholders, shall be entitled
to receive payments of current interest and fees when due under the High
Yield Indenture and High Yield Note; and (iii) in the event any Management
Services Reimbursement Agreement Beneficiary receives any payment from any
Management Services Agreement Obligors pursuant to subsection 4(b) of the
Management Services Reimbursement Agreement with respect to any drawing of
any New L/C that is honored by the New L/C Issuing Lender, then such
Management Services Agreement Beneficiaries shall apply such payment to
reimburse New L/C Issuing Lender (and any New L/C Lender that has funded
its participation therein) for such honored drawing.
(c) Cash collateral held by Collateral Agent pursuant to the
Security Agreement shall be held for the purposes set forth therein.
Notwithstanding anything in the other Credit Documents to the Company, if
during any period in which the provisions of subsection 4.2(a) are
applicable, (i) the Detroit L/C Commitments and the obligation of the
Detroit L/C Lenders to issue and maintain Detroit L/Cs have terminated and
all Detroit L/C Obligations have been fully satisfied in cash and no
Detroit L/Cs are then outstanding, then any cash collateral held by
Collateral Agent to cash collateralize Detroit L/C Obligations shall be
applied in accordance with subsection 4.2(a); and (ii) the New L/C
Aggregate Commitments and the obligation of the Issuing Lenders to issue
or maintain New L/Cs have terminated and all New L/C Obligations have been
fully satisfied in cash and no New L/Cs are then outstanding, then any
cash collateral held by Collateral Agent to cash collateralize New L/C
Obligations shall be applied in accordance with subsection 4.2(a).
(d) Until Proceeds are applied as set forth in this subsection 4.2,
Collateral Agent shall hold such Proceeds in its custody in accordance
with its regular procedures for handling deposited funds.
(e) Payments by Collateral Agent to the Detroit L/C Lenders in
respect of the Detroit L/C Obligations shall be made to the Detroit L/C
Facility Agent for distribution to the Detroit L/C Lenders in accordance
with the Detroit L/C Facility Agreement and this Agreement; payments by
Collateral Agent to the New L/C Lenders in respect of the New L/C
Obligations shall be made to the New L/C Agent for distribution to the New
L/C Lenders in accordance with the New L/C Facility Agreement and this
Agreement; payments in respect of any High Yield Obligations shall be paid
to the High Yield Trustee for the benefit of the holders of such High
Yield Obligations; and payments in respect of the Cash Management
Obligations shall be made to Cash Management Bank for the benefit of Cash
Management Bank.
(f) In the event that any Secured Party shall receive any
Distribution that such Secured Party is not entitled to receive or retain
under the provisions of this Agreement (in such capacity, each, a "JUNIOR
CREDITOR"), such Junior Creditor shall hold any such Distribution so
received in trust for the benefit of the holders of other Secured
Obligations with the right to receive such Distribution under the
provisions of this Agreement (in such capacity, each, a "SENIOR CREDITOR")
and shall segregate such
28
Distribution from other assets held by such Junior Creditor; and shall
forthwith turn over such Distribution (without liability for interest
thereon, but with any appropriate endorsements or assignments, if
necessary) to the holders of, or to Collateral Agent for the benefit of
the holders of, such Secured Obligations in the form received (with any
appropriate endorsement or assignment, if necessary) to be distributed in
accordance with subsection 4.1 or 4.2, as applicable, and applied to such
Secured Obligations. In the event of a failure of any Junior Creditor to
make any such endorsement or assignment to Collateral Agent or Senior
Creditors, as the case may be, Collateral Agent and such Senior Creditors
are hereby irrevocably authorized on behalf of such Junior Creditor to
make such endorsement or assignment, as applicable.
(g) No payment or distribution to any Senior Creditor pursuant to
the provisions of this Agreement shall entitle the applicable Junior
Creditor or Junior Creditors to exercise any right of subrogation in
respect thereof until (i) all Secured Obligations of such Senior Creditors
(including with respect to any outstanding letters of credit) shall have
been indefeasibly Paid in Full, or (ii) all of such Senior Creditors have
consented in writing to the taking of such action. With respect to any
subrogation claims, each Junior Creditor hereby (to the extent permitted
by applicable law) waives, releases and discharges any and all rights,
claims, causes of action, liabilities, claims and demands, in law or
equity, which such Junior Creditor has had, now has, or may in the future
have, arising out of or relating directly or indirectly to the taking or
not taking of any act or proceeding or not proceeding with any action
which the Senior Creditors (or that representatives) may take in an effort
to collect in respect of the Secured Obligations owed to such Senior
Creditors.
(h) In furtherance of, and without limiting, the priority provisions
set forth in this subsection 4.2, but subject to the applicable voting
provisions set forth in subsection 2.2, each Creditor Party and High Yield
Trustee (and, by their acceptance of the benefits hereof and of the
Collateral Documents, each High Yield Noteholder) agrees that, in order to
enable Collateral Agent to enforce its rights hereunder in any Bankruptcy
Proceeding, Collateral Agent is hereby irrevocably authorized and
empowered in its sole and absolute discretion to receive and collect any
and all dividends or other payments or disbursements made on account of
Collateral Agent's Lien on the Collateral in whatever form the same may be
paid or issued and to apply the same on account of any such Secured
Obligations in accordance with the provisions of the Credit Documents and
this Agreement. At any time, including but not limited to during any
Bankruptcy Proceeding, Collateral Agent and each other Secured Party will
refrain from taking any action which would contest or challenge in any
administrative, legal or equitable action or otherwise the validity or
enforceability of the terms of this Agreement, including the priority
provisions contained in this subsection 4.2 and the Lien priority
provisions contained in subsection 3.1.
(i) Each Secured Party hereby covenants and agrees that (i) except
for the guaranty of the High Yield Obligations by High Yield Guarantors
pursuant to the High Yield Indenture and any New Investor Assurances, such
Secured Party will not accept from any Person on behalf of the Borrowers
any guarantee (a "THIRD-PARTY GUARANTY") of any Secured Obligations unless
such guarantor simultaneously guarantees the payment
29
all Secured Obligations owed to each of the other Secured Parties (or, if
such Third-Party Guaranty guarantees only a portion of the Obligations
owing to such Secured Party, such Secured Party will not accept such
Third-Party Guaranty unless such guarantor simultaneously guarantees the
same proportion of Secured Obligations owing to the other Secured
Parties), and (ii) such Secured Party will not take, accept or obtain any
security interest in, or lien or encumbrance upon, any assets of any of
the Borrowers or any Subsidiary (including any CPIH Subsidiary) or
Affiliate thereof or any other Person to secure the payment and
performance of the Obligations unless the Collateral Agent, for the
benefit of all Secured Parties, is granted a pari passu security interest
in, or lien upon, such assets, in either case, pursuant to documents in
form and substance satisfactory to Detroit L/C Facility Agent and New L/C
Agent.
(j) Each Junior Creditor hereby waives any rights it may have under
applicable law to assert the doctrine of marshalling or to otherwise
require Collateral Agent or any Senior Creditors to marshal any property
of the Loan Parties or any of their respective Affiliates for the benefit
of such Junior Creditors.
SECTION V
5.1 INFORMATION. From time to time, upon the request of Collateral
Agent, each of the following Parties agrees to promptly provide to Collateral
Agent the information described below:
(a) Detroit L/C Facility Agent agrees promptly from time to time to
(i) deliver to Collateral Agent a true, correct and complete copy of any
amendment, waiver or modification of or supplement to any Detroit L/C
Facility Documents upon execution and delivery to Detroit L/C Facility
Agent thereof by the relevant parties thereto and (ii) notify Collateral
Agent of: (A) the aggregate amount of principal of and interest on the
relevant Detroit L/C Obligations (including the aggregate Detroit L/C
Usage) as at such date as Collateral Agent may specify, (B) the current
Detroit L/C Commitment under the Detroit L/C Facility Agreement, and (C)
any payment received by Detroit L/C Facility Agent to be applied to the
principal of or interest on the Obligations and (iv) the amount of any
other fees or expenses outstanding under the Detroit L/C Facility
Agreement (including fees and expenses of Detroit L/C Agents) and, in each
case, Collateral Agent shall be entitled to rely conclusively upon such
information.
(b) New L/C Agent agrees promptly from time to time to (i) deliver
to Collateral Agent a true, correct and complete copy of any amendment,
waiver or modification of or supplement to any New L/C Facility Documents
upon execution and delivery to New L/C Facility Agent thereof by the
relevant parties thereto and (ii) notify Collateral Agent of: (A) the
aggregate amount of principal of and interest on the New L/C Obligations
(including the aggregate New L/C Usage) as at such date as Collateral
Agent may specify, (B) the current New L/C Commitment under the New L/C
Facility Agreement, (C) any payment received by New L/C Agent to be
applied to the principal of or interest on the Obligations, and (D) the
amount of any other fees or expenses outstanding under the New L/C
Facility Agreement (including fees and expenses of New
30
L/C Agent) and, in each case, Collateral Agent shall be entitled to rely
conclusively upon such information.
(c) The High Yield Trustee agrees promptly from time to time to (i)
deliver to Collateral Agent a true, correct and complete copy of any
amendment, waiver or modification of or supplement to any High Yield Note
or the High Yield Indenture upon execution thereof and (ii) notify
Collateral Agent of: (A) the outstanding principal amount of the High
Yield Notes and the amount of accrued but unpaid interest thereon, and (B)
the amount of any other fees or expenses outstanding under the High Yield
Indenture (including fees and expenses of High Yield Trustee) at such date
as Collateral Agent may specify. The High Yield Trustee shall, or shall
cause the registrar for the High Yield Notes to, provide a statement of
such amount as reflected in the register maintained for such purpose by
the High Yield Trustee or such registrar, as the case may be, and
Collateral Agent shall be entitled to rely conclusively upon such
statement.
SECTION VI
6.1 DISCLAIMERS, SUPPLEMENTAL COLLATERAL AGENT, INDEMNITY, ETC.
(a) Collateral Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Collateral Documents
and Collateral Agent shall not by reason of this Agreement or the
Collateral Documents be a trustee for any Secured Party or have any other
fiduciary obligation to any Secured Party (including any obligation under
the Trust Indenture Act of 1939, as amended). Collateral Agent shall not
be responsible to any Secured Party for any recitals, statements,
representations or warranties contained in this Agreement or any other
Credit Document or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any
Credit Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit
Document or any other document referred to or provided for therein or any
Lien under the Collateral Documents or the perfection or priority of any
such Lien or for any failure by any Loan Party to perform any of its
respective obligations under this Agreement or any other Credit Document.
Collateral Agent may exercise such powers, rights and remedies and perform
such duties by or through its Affiliates, agents or employees.
(b) Neither Collateral Agent nor any of its officers, directors,
employees or agents shall be liable to any Secured Parties for any action
taken or omitted by Collateral Agent under or in connection with this
Agreement or any of the Collateral Documents or other Credit Documents
except to the extent caused by Collateral Agent's gross negligence or
willful misconduct. Collateral Agent shall be entitled to refrain from any
act or the taking of any action (including the failure to take an action)
in connection with this Agreement or any of the Collateral Documents or
other Credit Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until Collateral
Agent shall have received instructions in respect thereof from Requisite
Obligees (or such other Secured Parties as may be required to give such
instructions under subsection 2.4(a)) and, upon receipt of such
instructions from Requisite Obligees (or such other Secured Parties, as
the case may be), Collateral Agent
31
shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions. Without prejudice to the generality of the foregoing, (i)
Collateral Agent shall be entitled to rely, and shall be fully protected
in relying, upon any communication, instrument or document believed by it
to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for
Company and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Secured Party shall have any right of
action whatsoever against an Agent as a result of Collateral Agent acting
or (where so instructed) refraining from acting under this Agreement or
any of the other Collateral Documents or other Credit Documents in
accordance with the instructions of Requisite Obligees (or such other
Secured Parties as may be required to give such instructions under
subsection 2.4(a)).
(c) It is the purpose of this Agreement and the Collateral Documents
and other Credit Documents that there shall be no violation of any law of
any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Collateral Documents, and in particular in
case of the enforcement of any of the Collateral Documents, or in case
Collateral Agent deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the Collateral Documents or other Credit
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Collateral Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "SUPPLEMENTAL
COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Collateral Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of
the other Collateral Documents to be exercised by or vested in or conveyed
to Collateral Agent with respect to such Collateral shall be exercisable
by and vest in such Supplemental Collateral Agent to the extent, and only
to the extent, necessary to enable such Supplemental Collateral Agent to
exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and
every covenant and obligation contained in the Collateral Documents and
necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Collateral
Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Agreement that refer to Collateral Agent shall inure to the benefit
of such Supplemental Collateral Agent and all references herein to
Collateral Agent shall be deemed to be references to Collateral Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from any Loan Party be required by
any Supplemental Collateral Agent so appointed by Collateral Agent for
more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties,
32
such Loan Party shall execute, acknowledge and deliver any and all such
instruments promptly upon request by Collateral Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall vest in and be exercised by Collateral Agent until
the appointment of a new Supplemental Collateral Agent.
(d) Each Detroit L/C Lender and New L/C Lender (other than New L/C
Issuing Lender for so long as New L/C Issuing Lender does not have any New
L/C Aggregate Commitments), ratably in accordance with the amount of the
Secured Obligations of such Detroit L/C Lenders and all New L/C Lenders,
secured by the Collateral Documents, severally agrees that it shall
indemnify Collateral Agent and the officers, directors, employees, agents,
attorneys, professional advisors and affiliates of Collateral Agent to the
extent that any such Person is neither reimbursed by any Loan Party under
any Loan Document nor reimbursed out of any Proceeds pursuant to clause
First of subsection 4.2(a), for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements and fees and fees and
disbursements of any advisor engaged by Collateral Agent) or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against Collateral Agent or any such Person exercising the
powers, rights and remedies of a Collateral Agent or performing duties of
a Collateral Agent hereunder or under the other Collateral Documents or in
any way relating to or arising out of this Agreement, any Collateral
Document or any other Credit Document or any other documents contemplated
hereby or thereby or referred to therein or the transactions contemplated
hereby or thereby or the enforcement of any of the terms of any thereof;
provided, however, that no Detroit L/C Lender nor New L/C Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Collateral Agent as determined by a
final judgment of a court of competent jurisdiction. If for any reason a
New L/C Lender shall fail to make any payment to Collateral Agent when due
hereunder, then, without in anyway limiting any right or remedy Collateral
Agent may have against such New L/C Lender with respect thereto, such New
L/C Lender agrees that, as provided in subsection 4.2, deductions from
distributions otherwise due with respect to the New L/C Obligations will
be made so that all New L/C Lenders shall share with the Detroit L/C
Lenders, ratably in accordance with the amount (without duplication) of
such New L/C Obligations secured by the Collateral Documents, the payment
of the amounts due under the preceding sentence. The High Yield Trustee,
on behalf of the holders of the High Yield Obligations, agrees, by its
acceptance of the benefits hereof, that, as provided in subsection 4.2,
deductions from distributions otherwise due such holders of High Yield
Obligations will be made so that such holders of High Yield Obligations
shall share with the Detroit L/C Lenders and New L/C Lenders, ratably in
accordance with the amount (without duplication) of such High Yield
Obligations secured by the Collateral Documents, the payment of the
amounts due under the first sentence of this subsection 6.1(d). No Detroit
L/C Agent nor New L/C Agent, in their respective capacities as Detroit L/C
Agents and New L/C Agent, shall have any liability to any Party under this
subsection 6.1(d).
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(e) The agency hereby created shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon,
Collateral Agent in its individual capacity as a Detroit L/C Agent,
Detroit L/C Lender, New L/C Lender or High Yield Noteholder, as the case
may be, hereunder or under any Credit Document. With respect to its
participation in the Detroit L/C Obligations, New L/C Obligations and High
Yield Obligations, Collateral Agent shall have the same rights and powers
hereunder as any other Secured Party and may exercise the same as though
it were not performing the duties and functions delegated to it hereunder.
Collateral Agent and its Affiliates may accept deposits from, lend money
to, acquire equity interests in and generally engage in any kind of
commercial banking, investment banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from any Loan Party for services in connection with this
Agreement and otherwise without having to account for the same to Secured
Parties.
(f) Collateral Agent may deem and treat the payee of any promissory
note or other evidence of indebtedness relating to the Secured Obligations
as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof, signed by such payee and in
form satisfactory to Collateral Agent, shall have been filed with
Collateral Agent. Any request, authority or consent of any Person who at
the time of making such request or giving such authority or consent is the
holder of any such note or other evidence of indebtedness shall be
conclusive and binding on any subsequent holder, transferee or assignee of
such note or other evidence of indebtedness and of any note or notes or
other evidences of indebtedness issued in exchange therefor.
Notwithstanding anything to the contrary contained in the Detroit L/C
Facility Documents or the New L/C Facility Documents, (i) no assignment or
transfer of any interest of any (A) Detroit L/C Lender in the Detroit L/C
Exposure or Detroit L/Cs (including pursuant to any refinancing,
restatement, replacement or extension of the Detroit L/C Facility
Agreement not prohibited hereunder), and (B) no transfer of any interest
of any New L/C Lender in the New L/C Aggregate Exposure or the New L/Cs
(including pursuant to any refinancing, restatement, replacement or
extension of the New L/C Facility Agreement not prohibited hereunder) and
(ii) no appointment (A) of any successor Detroit L/C Facility Agent or
Detroit L/C Document Agent under the Detroit L/C Facility Agreement
(including pursuant to any refinancing, restatement, replacement or
extension of the Detroit L/C Facility Agreement not prohibited hereunder),
(B) any successor New L/C Agent under the New L/C Facility Agreement
(including pursuant to any refinancing, restatement, replacement or
extension of the New L/C Facility Agreement not prohibited hereunder); or
(C) any successor High Yield Trustee pursuant to the High Yield Indenture
may in any case be made unless such successor, transferee, assignee or any
Person who became a lender pursuant to a refinancing, restatement,
replacement or extension of the Detroit L/C Facility Agreement, New L/C
Facility Agreement, or High Yield Indenture, as the case may be, executes
an Assumption Agreement in the form of Annex 1 hereto shall be made unless
the transferee executes an Assumption Agreement in the form of Annex 1
hereto.
(g) Except as expressly provided herein and in the Collateral
Documents, Collateral Agent shall have no duty to take any affirmative
steps with respect to the
34
collection of amounts payable in respect of the Collateral. Collateral
Agent shall incur no liability to any Secured Party as a result of any
sale of any Collateral at any private sale.
(h) Collateral Agent may resign at any time by giving at least 30
days' notice thereof to the Parties and Collateral Agent may be removed as
Collateral Agent at any time by Requisite Obligees. In the event of such
resignation or removal of Collateral Agent, Requisite Obligees shall
thereupon have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed by Requisite
Obligees within 30 days after the resigning Collateral Agent's giving
notice of its intention to resign, then the resigning Collateral Agent may
appoint, on behalf of Secured Parties, a successor Collateral Agent and
Company hereby agrees to pay to such successor Collateral Agent, in
addition to any other amounts payable to Collateral Agent hereunder and
under the Collateral Documents, such reasonable annual fees in such
amounts and at such times as may be requested by such successor Collateral
Agent.
(i) Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent under
this Agreement and under the Collateral Documents. After any retiring or
removed Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this subsection 6.1 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 Collateral Agent.
(j) In no event shall Collateral Agent or any Secured Party be
liable or responsible for any funds or investments of funds held by any
Loan Party.
(k) Upon the proposed sale or other disposition of any Collateral
that is permitted by the Facility Agreements and not prohibited by
subsection 2.4(a) or to which Requisite Obligees have otherwise consented
pursuant to an Enforcement Action, for which a Loan Party desires to
obtain a security interest release from Collateral Agent, such Loan Party
shall deliver an Officer's Certificate to Collateral Agent, Detroit L/C
Agent and New L/C Agent (i) stating that the Collateral or the Capital
Stock subject to such disposition is being sold or otherwise disposed of
in compliance with the terms hereof and of the Facility Agreements and
(ii) specifying the Collateral or Capital Stock being sold or otherwise
disposed of in the proposed transaction. Upon the receipt of such
Officer's Certificate, Collateral Agent shall, at Loan Parties' (other
than DHC's), joint and several expense, so long as Senior Agent has not
informed Collateral Agent that it (a) has reason to believe that the facts
stated in such Officer's Certificate are not true and correct and (b) if
the sale or other disposition of such item of Collateral or Capital Stock
constitutes an Asset Sale (as defined in each Facility Agreement), has not
received evidence satisfactory to it that arrangements satisfactory to it
have been made for delivery of the Net Asset Sale Proceeds (as defined in
each Facility Agreement) if and as required by subsection 2.3 of the
respective Facility Agreement, execute and deliver such releases of its
security interest in such Collateral as may be reasonably requested by
such Loan Party. In the event of any conflict or inconsistency between
this subsection 6.1(k) and the terms of any other Credit Document, the
terms of this Agreement shall prevail.
35
(l) Concurrently with any Subsidiary of Company becoming Additional
Detroit L/C Borrower or Additional New L/C Borrower, such Subsidiary shall
execute and deliver to Collateral Agent a counterpart to this Agreement in
the form attached hereto as Annex 2 ("COUNTERPART"). Upon delivery of any
such Counterpart to Collateral Agent, each such Additional Detroit L/C
Borrower or Additional New L/C Borrower shall be a Detroit L/C Borrower or
New L/C Borrower, as applicable, and shall be as fully a party hereto as
if such Additional Detroit L/C Borrower or Additional New L/C Borrower
were an original signatory hereto. Each Borrower expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Borrower hereunder, nor by any election
of Collateral Agent or Secured Party not to cause any Subsidiary of
Company to become an Additional Detroit L/C Borrower or Additional New L/C
Borrower, as applicable, hereunder. This Agreement shall be fully
effective as to any Borrower that is or becomes a party hereto regardless
of whether any other Person becomes or fails to become or ceases to be a
Borrower hereunder.
SECTION VII
7.1 MISCELLANEOUS.
(a) All notices and other communications provided for herein shall
be in writing and may be personally served, or sent by telefacsimile or
United States mail or courier service or electronic mail (as further
provided in this clause (a)) and shall be deemed to have been given (i)
when delivered in person or by courier service, (ii) upon receipt of
telefacsimile in complete and legible form, (iii) three Business Days
after deposit in the United States mail with postage prepaid and properly
addressed, or (iv) in the case of electronic mail to the extent provided
in this clause (a); provided that notices to Collateral Agent shall not be
effective until received. For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided
in this subsection 7.1(a)) shall be as set forth under each party's name
on the signature pages (including acknowledgments) hereof. Notices and
other communications to the Lenders, Detroit L/C Agents and New L/C Agent
hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to
procedures approved by Collateral Agent. Collateral Agent or any Borrower
may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited
to particular notices or communications.
(b) No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by any Party
therefrom, shall in any event be effective without the written concurrence
of Requisite Detroit L/C Lenders and Requisite New L/C Lenders; provided
that (i) no such amendment, modification, termination or waiver shall,
without the consent of each Lender with Secured Obligations directly
affected thereby, amend,
36
modify, terminate or waive, or have the effect of amending, modifying,
terminating or waiving, the definition of "Requisite Obligees", (ii) no
such amendment, modification, termination or waiver shall, without the
consent of each Lender and Agent with Secured Obligations directly
affected thereby, amend, modify, terminate or waive, or have the effect of
amending, modifying, terminating or waiving (A) subsection 3.1 or 4.2 or
this subsection 7.1(a), or (B) any other provision of this Agreement in a
manner that would impose any additional material obligations on any Lender
or Agent or prejudice any material rights or remedies of such Lender or
Agent, (iii) no amendment, modification, termination or waiver of any
provision of subsection 2.1 or 2.2 or Section 5 or 6 or of any other
provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Collateral Agent shall be effective without the
written concurrence of Collateral Agent; or (iv) no such amendment,
modification, termination or waiver of this Agreement shall materially
increase or materially adversely affect obligations of any Loan Party or
adversely affect any rights of Loan Party under the other Credit Documents
in each case without such loan party's prior consent; provided, further,
that no amendment, modification, termination or waiver shall (1) reduce or
otherwise adversely affect the right of the High Yield Trustee to request
or direct Collateral Agent to take action on the terms set forth in
subsection 2.1(a), or (2) subordinate in right of payment the High Yield
Obligations, or (3) modify or otherwise alter in any manner adverse to the
holders of the High Yield Notes the priority of such holders' Lien in the
Collateral as provided in subsection 3.1 as in effect on the date hereof
or the right of such holders to receive Proceeds in the amount and order
of priority and under the circumstances described in subsections 4.1(a)
and 4.2(a), as in effect on the date hereof. To the extent (if any) the
provisions of this Agreement are inconsistent with the provisions set
forth in any Facility Agreement or the High Yield Indenture in any
particular circumstance, then the provisions set forth in this Agreement
shall prevail to the extent necessary to eliminate or avoid such
inconsistency in such circumstance.
(c) Subject to the provisions of subsection 6.1(f), this Agreement
shall be binding upon and inure to the benefit of Collateral Agent, each
other Party and each Secured Party and their respective successors and
assigns, including, subject to compliance with the provisions of
subsection 6.1(f), successors to Detroit L/C Agents, New L/C Agent and any
Lenders and High Yield Trustee under the Detroit L/C Facility Agreement,
New L/C Facility, and High Yield Indenture, as applicable.
(d) This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument,
and any of the parties hereto may execute this Agreement by signing any
such counterpart.
(e) This Agreement shall become effective on the Closing Date and
upon the execution of this Agreement by each Loan Party, New L/C Lender
and Detroit L/C Lender and New L/C Agent, Detroit L/C Agents, High Yield
Trustee and Collateral Agent.
(f) The Collateral Agent may deem and treat the Secured Parties
executing and delivering this Agreement and the High Yield Noteholders as
the "Secured Parties" for all purposes hereof unless and until a notice of
the assignment or transfer of any interest held by such Party shall have
been filed with the Collateral Agent in accordance with subsection 6.1(f).
The Company agrees that it will advise the Collateral Agent of any
transfer by any Creditor Party of any Detroit L/C Exposure or New L/C
Aggregate
37
Exposure held by such Creditor Party and will, from time to time upon
request of the Collateral Agent, deliver a list to the Collateral Agent
(which shall be distributed by the Collateral Agent to each Creditor
Party) setting forth, for the Detroit L/C Exposure and New L/C Aggregate
Exposure, the unpaid principal amount (or outstanding undrawn letters of
credit with respect thereto) and holder thereof. The Collateral Agent may
rely on such list unless, after the distribution thereof, the Collateral
Agent is notified by a Secured Party that such information as set forth on
such list is inaccurate.
(g) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE PARTIES
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES IRREVOCABLY
(I) ACCEPTS FOR ITSELF, IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS,
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, (III) AGREES THAT SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH PARTY
HERETO AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 7.1(a)
HEREOF, (IV) AGREES THAT SERVICE OF PROCESS AS PROVIDED IN CLAUSE (III) IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PERSON IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT, (V) AGREES THAT THE PARTIES HERETO
RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY OTHER
JURISDICTION, AND (VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION
7.1(g) RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE
TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
(h) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THE INTERCREDITOR RELATIONSHIP THAT IS
BEING ESTABLISHED. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims, and all other common
law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each
has already relied on the waiver in entering into this Agreement, and that
each will continue to rely on the waiver in their related future dealings.
Each party hereto further warrants and represents that each has reviewed
this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS
38
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, REPLACEMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In
the event of litigation, this Agreement may be filed as a written consent
to a trial by the court.
(i) NO CLAIM MAY BE MADE BY ANY SECURED PARTY OR ANY OF THEIR
RESPECTIVE AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, OR
ATTORNEYS AGAINST ANY OTHER SECURED PARTY OR THEIR RESPECTIVE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, OR ATTORNEYS FOR ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR WRONGFUL CONDUCT
(WHETHER THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY
LAW) IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED AND RELATIONSHIP ESTABLISHED BY THIS AGREEMENT,
OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH
SECURED PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY SUCH
CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
(j) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER OR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER
LAW.
(k) All undertakings and agreements contained in this Agreement are
solely for the benefit of the Secured Parties and there are no other
Persons (other than Loan Parties to the extent expressly provided herein)
who are intended to be benefited in any way by this Agreement. Each Loan
Party agrees that no Secured Party shall have any liability to any of the
Loan Parties for performing its obligations and responsibilities under
this Agreement with respect to the other Secured Parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
LOAN PARTIES:
COVANTA ENERGY CORPORATION
By:
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
EACH OF THE ENTITIES NAMED ON SCHEDULE A
ANNEXED HERETO, AS DETROIT L/C BORROWERS, NEW
L/C BORROWERS AND HIGH YIELD GUARANTORS
By:
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Schedule A
1. AMOR 14 Corporation
2. Xxxxxx Mountain Power
3. Covanta Acquisition, Inc.
4. Covanta Alexandria/Arlington, Inc.
5. Covanta Bessemer, Inc.
6. Covanta Bristol, Inc.
7. Covanta Xxxxxxxxxx Environmental Support, Inc.
8. Covanta Energy Americas, Inc.
9. Covanta Energy Construction, Inc.
10. Covanta Energy Group, Inc.
11. Covanta Energy International, Inc.
12. Covanta Energy Resource Corp.
13. Covanta Energy Services, Inc.
14. Covanta Energy West, Inc.
15. Covanta Engineering Services, Inc.
16. Covanta Fairfax, Inc.
17. Covanta Geothermal Operations Holdings, Inc.
18. Covanta Geothermal Operations, Inc.
19. Covanta Haverhill Properties, Inc.
20. Covanta Haverhill, Inc.
21. Covanta Heber Field Energy, Inc.
22. Covanta Hennepin Energy Resource Co., Limited Partnership
23. Covanta Hillsborough, Inc.
24. Covanta Honolulu Resource Recovery Venture
25. Covanta Huntsville, Inc.
26. Covanta Hydro Energy, Inc.
27. Covanta Hydro Operations West, Inc.
28. Covanta Hydro Operations, Inc.
29. Covanta Imperial Power Services, Inc.
30. Covanta Indianapolis, Inc.
31. Covanta Kent, Inc.
32. Covanta Lancaster, Inc.
33. Covanta Xxx, Inc.
34. Covanta Long Island, Inc.
35. Covanta Xxxxxx Land Corp.
36. Covanta Xxxxxx, Inc.
37. Covanta Mid-Conn., Inc.
38. Covanta Xxxxxxxxxx, Inc.
39. Covanta New Martinsville Hydroelectric Corporation
40. Covanta New Martinsville Hydro-Operations Corporation
41. Covanta Oahu Waste Energy Recovery, Inc.
42. Covanta Omega Lease, Inc.
43. Covanta Onondaga Operations, Inc.
44. Covanta Operations of Union, LLC
45. Covanta OPW Associates, Inc.
46. Covanta OPWH, Inc.
47. Covanta Pasco, Inc.
48. Covanta Plant Services of New Jersey, Inc.
49. Covanta Power Equity Corporation
50. Covanta Power Pacific, Inc.
51. Covanta Power Plant Operations
52. Covanta Projects of Hawaii, Inc.
53. Covanta Projects, Inc.
54. Covanta RRS Holdings, Inc.
55. Covanta Secure Services, Inc.
56. Covanta SIGC Energy, Inc.
57. Covanta SIGC Energy II, Inc.
58. Covanta SIGC Geothermal Operations, Inc.
59. Covanta Stanislaus, Inc.
60. Covanta Systems, LLC
61. Covanta Wallingford Associates, Inc.
62. Covanta Waste to Energy , LLC
63. Covanta Water Holdings, Inc.
64. Covanta Water Systems, Inc.
65. Covanta Water Treatment Services, Inc.
66. DSS Environmental, Inc.
67. ERC Energy II, Inc.
68. ERC Energy, Inc.
69. Haverhill Power, LLC
70. Heber Field Energy II, Inc.
71. Heber Loan Partners
72. LMI, Inc.
73. Mammoth Geothermal Company
74. Mammoth Power Company
75. Michigan Waste Energy, Inc.
76. Mt. Lassen Power
77. Pacific Geothermal Company
78. Pacific Oroville Power, Inc.
79. Pacific Wood Fuels Company
80. Pacific Wood Services Company
81. Three Mountain Operations, Inc.
82. Three Mountain Power, LLC
MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT BENEFICIARIES:
COVANTA ENERGY CORPORATION
By:
--------------------------------------------
Name:
Title:
Notice Address:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
EACH OF THE ENTITIES NAMED ON SCHEDULE B
ANNEXED HERETO, AS MANAGEMENT SERVICES
AND REIMBURSEMENT AGREEMENT BENEFICIARIES
By:
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Authorized Officer
Notice Address for each Management
Services Agreement Beneficiary:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Schedule B
1. Covanta Energy Group, Inc.
2. Covanta Projects, Inc.
XXXXXXXXX:
XXXXXXXXX HOLDING CORPORATION
By: __________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Notice Address:
Xxxxxxxxx Holding Corporation
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxx, Xxxxxx & Xxxxxxxxx LLP
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Collateral Agent and Detroit L/C
Facility Agent
By:
-----------------------------------
Name: Xxxxx X. Xx
Title: Managing Director
Notice Address:
Bank of America, N.A., as
Administrative Agent
555 So. Flower Street, 17th Floor
CA9-706-17-54
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Vice
President
Voice: (000) 000-0000
Fax: (000) 000-0000
email:
xxxxx.xxxxx@xxxxxxxxxxxxx.xxx
BANK OF AMERICA, N.A.,
as Cash Management Bank
By:
-----------------------------------
Name: Xxxxx X. Xx
Title: Managing Director
Notice Address:
DEUTSCHE BANK SECURITIES, INC.,
as Detroit L/C Documentation Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Notice Address:
Attention:
Deutsche Bank Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
BANK ONE, NA,
as New L/C Agent and a New L/C Lender
By:
-----------------------------------
Name:
Title:
Notice Address:
SZ INVESTMENTS, L.L.C.,
as a New L/C Lender
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
Notice Address:
Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx
THIRD AVENUE TRUST, ON BEHALF OF
THIRD AVENUE VALUE FUND SERIES, as a
New L/C Lender
By: ___________________________________
Name:
Title:
Notice Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with a copy to Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
D.E. SHAW LAMINAR PORTFOLIOS, L.L.C.,
as a New L/C Lender
By: ___________________________________
Name:
Title:
Notice Address:
BANC OF AMERICA SECURITIES LLC,
as Agent for BANK OF AMERICA, N.A., as
a Detroit L/C Lender
By: ___________________________________
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
BEAR XXXXXXX & CO. INC.,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Detroit L/C Lender
By: ___________________________________
Name: Xxxxx Xxxxx
Title: Director
By: ___________________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President
IIB BANK LIMITED,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
KBC BANK,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Notice Address:
Attention: Xxxx Xxxxx
KBC Bank NV, New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Notice Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX,
INCORPORATED,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
UBS AG, STAMFORD BRANCH,
as issuer of Detroit L/Cs
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
UBS LOAN FINANCE LLC,
as a Detroit L/C Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRSTAR BANK, N.A.),
as a Detroit L/C Lender
By: ___________________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
WESTLB AG (FORMERLY KNOWN
AS WESTDEUTSCHE LANDESBANK
GIROZENTRALE), NEW YORK
BRANCH, as a Detroit L/C
Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
HIGH YIELD TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: ___________________________________
Name:
Title:
Notice Address:
Annex 1 to
Intercreditor Agreement
ASSUMPTION AGREEMENT, dated as of __________, 200_, made by
_________________ (the "ADDITIONAL SECURED PARTY").
W I T N E S S E T H :
WHEREAS, Covanta Energy Corporation ("COVANTA") and the
Subsidiaries of Covanta listed on the signature pages thereof (together with any
other borrowers that subsequently become party thereto); certain entities listed
on the signature pages thereof as New L/C Lenders ("NEW L/C LENDERS"); certain
financial institutions listed on the signature pages thereof as Detroit L/C
Lenders ("DETROIT L/C LENDERS"); Bank of America, N.A., as administrative agent
for Detroit L/C Lenders and as collateral agent, and Deutsche Bank Securities,
Inc., as documentation agent for and Detroit L/C Lenders, Bank One, NA, as
administrative agent for the New L/C Lenders, Xxxxxxxxx Holding Corporation, the
companies listed on the signature pages thereof as Management Services and
Reimbursement Agreement Beneficiaries and U.S. Bank National Association, in its
capacity as trustee under the High Yield Indenture are parties to that certain
Intercreditor Agreement dated as of March 10, 2004 (as amended, supplemented or
otherwise modified from time to time, the "INTERCREDITOR AGREEMENT");
WHEREAS, the Loan Parties have executed the Collateral
Documents pursuant to which the Loan Parties party to each such document have
granted to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in the Collateral to secure their respective obligations
arising in connection with the Credit Document;
WHEREAS, subsection 6.1(f) of the Intercreditor Agreement
requires the Additional Secured Party to become a party to the Intercreditor
Agreement; and
WHEREAS, the Additional Secured Party has agreed to execute
and deliver this Assumption Agreement in order to become a party to the
Intercreditor Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Intercreditor Agreement and used herein shall have the meanings
given to them in the Intercreditor Agreement.
2. Intercreditor Agreement. By executing and delivering this
Assumption Agreement, the Additional Secured Party hereby becomes a party to the
Intercreditor Agreement as [New L/C Agent] [Detroit L/C Facility Agent] [Detroit
L/C Documentation Agent] [High Yield Trustee] [a Detroit L/C Lender]
A-1-1
[a New L/C Lender] and Secured Party thereunder with the same force and effect
as if originally named therein as [New L/C Agent] [Detroit L/C Facility Agent]
[Detroit L/C Documentation Agent] [High Yield Trustee] [a Detroit L/C Lender] [a
New L/C Lender] and Secured Party and, without limiting the generality of the
foregoing, hereby expressly assumes all obligations and liabilities of [New L/C
Agent] [Detroit L/C Facility Agent] [Detroit L/C Documentation Agent] [High
Yield Trustee] [a Detroit L/C Lender] [a New L/C Lender] and a Secured Party
thereunder and agrees to be bound by the terms thereof.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL SECURED PARTY]
By:___________________________
Name:
Title:
A-1-2
Annex 2 to
Intercreditor Agreement v1
COUNTERPART
COUNTERPART (this "COUNTERPART"), dated as of _______, is delivered
pursuant to subsection 6.1(l) of the Intercreditor Agreement referred to below.
The undersigned hereby agrees that this Counterpart may be attached to the
Intercreditor Agreement, dated as of March 10, 2004 (said Intercreditor
Agreement, as it may heretofore have been and as it may hereafter be further
amended, restated, supplemented or otherwise modified from time to time being
the "INTERCREDITOR AGREEMENT"; capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed therein), among Covanta Energy
Corporation ("COVANTA") and the subsidiaries of Covanta listed on the signature
pages thereof (together with any other borrowers that subsequently become party
thereto); certain entities listed on the signature pages thereof as New L/C
Lenders ("NEW L/C LENDERS"); certain financial institutions listed on the
signature pages thereof as Detroit L/C Lenders ("DETROIT L/C LENDERS"); Bank of
America, N.A., as administrative agent for Detroit L/C Lenders and as collateral
agent, and Deutsche Bank Securities, Inc., as documentation agent for Detroit
L/C Lenders, Bank One, NA, as administrative agent for the New L/C Lenders,
Xxxxxxxxx Holding Corporation, the companies listed on the signature pages
thereof as Management Services and Reimbursement Agreement Beneficiaries and
U.S. Bank National Association, in its capacity as trustee under the High Yield
Indenture. The undersigned by executing and delivering this Counterpart hereby
becomes a [New L/C Borrower][Detroit L/C Borrower] under the Intercreditor
Agreement in accordance with subsection 6.1(l) thereof and agrees to be bound by
all of the terms thereof.
[NAME OF ADDITIONAL DETROIT L/C
BORROWER/NEW L/C BORROWER]
By: ___________________________
Name:
Title:
A-2-1
