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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
(FINAL AMENDMENT)
TO
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934)
WHEELABRATOR TECHNOLOGIES INC.
(NAME OF ISSUER)
WASTE MANAGEMENT, INC.
WMI MERGER SUB, INC.
(NAMES OF PERSONS FILING STATEMENT)
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
962901 30 2
(CUSIP NUMBER OF CLASS OF SECURITIES)
HERBERT A. GETZ, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
WASTE MANAGEMENT, INC.
3003 BUTTERFIELD ROAD
OAK BROOK, ILLINOIS 60523
TELEPHONE: (630) 572-8800
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS
ON BEHALF OF PERSONS FILING STATEMENT)
COPIES TO:
RALPH ARDITI, ESQ. CHARLES W. MULANEY, JR., ESQ.
DEBEVOISE & PLIMPTON SKADDEN, ARPS, SLATE,
875 THIRD AVENUE MEAGHER & FLOM (ILLINOIS)
NEW YORK, NY 10022 333 WEST WACKER DRIVE
(212) 909-6000 CHICAGO, IL 60606
(312) 407-0700
This statement is filed in connection with (check the appropriate box):
a. [XThe]filing of solicitation materials or an information statement subject
to Regulation 14A [17 CFR 240.14a-1 to 240.14b-1], Regulation 14C [17 CFR
240.14c-1 to 240.14c-101] or Rule 13e-3(c) [(S)240.13e-3(c)] under the
Securities Exchange Act of 1934.
b. [_The]filing of a registration statement under the Securities Act of 1933.
c. [_A]tender offer.
d. [_None]of the above.
Check the following box if the soliciting materials referred to in checking
box (a) are preliminary copies: [X]
CALCULATION OF FILING FEE*
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<TABLE>
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Transaction Valuation: Amount of Filing Fee:
$869,867,476 $173,973
</TABLE>
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* Estimated solely for purposes of computing the filing fee. The transaction
valuation was determined by multiplying the number of shares of the
Issuer's common stock to be acquired in the transaction by $16.50, the per
share consideration to be paid in the transaction. The filing fee was
determined by multiplying such valuation by 1/50 of 1%.
[X] Check box if any part of the fee is offset as provided by Rule 0-11 (a)
(2) and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: $173,973 Filing Party: Waste Management, Inc.
Form or Registration No.: Schedule 14A Date Filed: January 21, 1998 and
February 19, 1998
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INTRODUCTION
This Amendment No. 3 is the final amendment (the "Final Amendment") to the
Rule 13e-3 Transaction Statement on Schedule 13E-3 (the "Transaction
Statement") filed pursuant to Section 13(e) of the Securities Exchange Act of
1934, as amended, relating to the Agreement and Plan of Merger (the "Merger
Agreement") dated as of December 8, 1998 by and among Waste Management, Inc.,
a Delaware corporation ("Waste Management"), WMI Merger Sub, Inc., a Delaware
corporation ("Merger Sub"), and Wheelabrator Technologies Inc., a Delaware
corporation (the "Company"). All information set forth below should be read in
connection with the information contained or incorporated by reference in the
Transaction Statement as previously amended. Unless otherwise indicated,
capitalized terms used and not defined herein have the respective meanings
ascribed thereto in the Company's Definitive Proxy Statement, dated February
27, 1998 (the "Definitive Proxy Statement"), a copy of which previously was
filed as Exhibit 17(d)(1) to the Transaction Statement.
On March 30, 1998, Merger Sub was merged with and into the Company. The
Company was the surviving entity. Each share of common stock, par value $.01
per share (the "Common Stock"), of the Company issued and outstanding
immediately prior to the effective time (the "Effective Time") of the Merger
(other than Common Stock owned by Waste Management and its affiliates,
treasury shares held by the Company immediately prior to the Effective Time
and any shares of Common Stock owned by stockholders who perfected their
dissenters rights (the "Dissenting Shares")) was converted into the right to
receive $16.50 in cash (the "Merger Consideration"), pursuant to the terms of
the Merger Agreement.
Pursuant to the Merger Agreement, at the Effective Time, each share of
Common Stock issued, outstanding and owned by Waste Management, Merger Sub or
any direct or indirect subsidiary of Waste Management or any of the Company's
direct or indirect wholly-owned subsidiaries (the "Nonaffiliated Shares") and
all treasury shares held by the Company immediately prior to the Effective
Time ceased to be outstanding and were cancelled and retired without payment
of any consideration therefor and ceased to exist. At the Effective Time, each
share of common stock of Merger Sub issued and outstanding immediately prior
to the Effective Time was converted into one validly issued, fully paid and
nonassessable share of Common Stock of the Company.
Immediately prior to the Effective Time, Waste Management directly or
indirectly owned approximately 67% of the outstanding Common Stock. After the
Effective Time, Waste Management directly or indirectly owned 100% of the
outstanding Common Stock.
Upon consummation of the Merger, the Common Stock ceased to be qualified for
listing on the New York Stock Exchange and became eligible for termination of
registration pursuant to Rules and Regulations under the Securities Exchange
Act of 1934, as amended. The Company filed with the Securities and Exchange
Commission on March 30, 1998 a Form 15 with respect to the termination of
registration of the Common Stock.
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION
Item 1 of the Transaction Statement is hereby amended and supplemented as
follows:
(c) Upon consummation of the Merger, the Common Stock ceased to be qualified
for listing on the New York Stock Exchange and became eligible for termination
of registration pursuant to the Rules and Regulations under the Securities
Exchange Act of 1934, as amended. The Company filed with the Securities and
Exchange Commission on March 30, 1998 a Form 15 with respect to the
termination of registration of the Common Stock.
(f) The Introduction to this Final Amendment to the Transaction Statement is
incorporated herein by reference.
2
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ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE
Item 5 of the Transaction Statement is hereby amended and supplemented as
follows:
(a) The Merger was consummated by the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware on March 30, 1998.
(c) At the Effective Time, the existing members of the Board of Directors of
Merger Sub became the members of the Board of Directors of the Surviving
Corporation.
(f); (g) On March 30, 1998, after the closing of the Merger, the Company
filed with the Securities and Exchange Commission a Form 15 with respect to
the termination of registration of the Common Stock.
ITEM 6. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION
Item 6 of the Transaction Statement is hereby amended and supplemented as
follows:
(a); (c) On March 31, 1998, Waste Management entered into a $1.25 billion
credit facility with The Chase Manhattan Bank as the arranger ("Chase") and
several other participating banks. The credit facility will be comprised of an
unsecured $575 million term facility (the "Term Facility") and an unsecured
$675 million revolving credit facility (the "Revolving Credit Facility" and,
together with the Term Facility, the "Credit Facility"). The purpose of the
Credit Facility is to provide funds required for the payment of the Merger
Consideration in connection with the Merger and to provide a facility for
general corporate purposes including a back-up credit facility in support of
Waste Management's regular issuance of commercial paper. The Credit Facility
has a stated December 31, 1998 expiration date but is anticipated to expire
earlier upon completion of the merger of Waste Management with a subsidiary of
USA Waste Services, Inc., upon consummation of which Waste Management will be
a wholly-owned subsidiary of USA Waste Services, Inc. The Credit Facility also
requires Waste Management to pay down a portion of the funds borrowed
thereunder and reduce the Credit Facility size in the event Waste Management
engages in certain debt or equity offerings or material asset sales. Waste
Management may elect that the Credit Facility bear interest at a rate per
annum equal to (i) the higher of (A) Chase's publicly announced prime rate and
(B) the federal funds effective rate from time to time plus 0.5%, or (ii) the
offered rate for eurodollar deposits in the London interbank market for an
interest period of one month, as adjusted for statutory reserve requirements
for eurocurrency liabilities plus an additional amount (the "Applicable
Margin"). The Applicable Margin for the Term Facility is (i) 0.45% if Waste
Management's senior, unsecured, long-term indebtedness that is not subject to
guarantees or other credit enhancements ("Senior Debt") is rated BBB or higher
and Baa2 or higher by Standard & Poor's Ratings Services ("S&P") and Moody's
Investors Service, Inc. ("Moody's"), respectively, (ii) 0.55% if Waste
Management's Senior Debt is rated BBB- or above and Baa3 or above by S&P and
Moody's, respectively, and (iii) 0.75% if neither (i) nor (ii) is applicable.
The Applicable Margin for the Revolving Credit Facility is (i) 0.30% if Waste
Management's Senior Debt is rated BBB or higher or Baa2 or higher by S&P and
Moody's, respectively, (ii) 0.40% if Waste Management's Senior Debt is rated
BBB- or Baa3 by S&P and Moody's, respectively, and (iii) 0.60% if Waste
Management's Senior Debt is rated lower than BBB- and Baa3 by S&P and Moody's,
respectively. Waste Management may also request to receive money market loans
(if the sum of such money market loans and any revolving loans do not exceed
the maximum permissible revolving loans) at a rate equal to the respective
lender's fixed money market rate. The making of each loan is conditioned upon
(i) the accuracy of all representations and warranties in the credit
documentation (other than the material adverse change and litigation
representations) and compliance with all covenants, including certain net
worth and debt to earnings before interest, taxes, depreciation and
amortization ratios, (ii) there being no default or event of default in
existence at the time of, or after giving effect to the making of, such loan
and (iii), in the case of the Term Facility, the consummation of the Merger in
accordance with the Merger Agreement.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS
Item 7 of the Transaction Statement is amended and supplemented as follows:
(d) The Introduction to this Final Amendment to the Transaction Statement is
incorporated herein by reference.
3
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ITEM 10. INTEREST IN SECURITIES OF THE ISSUER
Item 10 of the Transaction Statement is hereby amended and supplemented as
follows:
(a); (b) The Introduction to this Final Amendment to the Transaction
Statement is hereby incorporated herein by reference in its entirety.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS
The Exhibit Index set forth on page 6 of this Transaction Statement is
incorporated herein by reference.
4
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
April 9, 1998
-------------------------------------
(Date)
Waste Management, Inc.
/s/ Herbert A. Getz
By: _________________________________
(Signature)
Name: Herbert A. Getz
Title: Senior Vice President and
Secretary
Waste Management, Inc.
(Name and Title)
WMI Merger Sub, Inc.
/s/ Herbert A. Getz
By: _________________________________
(Signature)
Name: Herbert A. Getz
Title: Vice President and Secretary
WMI Merger Sub, Inc.
(Name and Title)
<PAGE>
WASTE MANAGEMENT, INC.
WMI MERGER SUB, INC.
SCHEDULE 13E-3
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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<C> <S>
17(a) Credit Agreement dated as of March 31, 1998 among Waste Management,
Inc., the lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent.+
17(b)(1) Fairness opinion of Goldman, Sachs & Co. (incorporated by reference
to Appendix B-1 to the Definitive Proxy Statement filed as Exhibit
17(d)(1) hereto).
17(b)(2) Fairness opinion of Lazard Freres & Co. LLC (incorporated by
reference to Appendix B-2 to the Definitive Proxy Statement filed as
Exhibit 17(d)(1) hereto).
17(b)(3) Fairness opinion of Merrill Lynch, Pierce, Fenner, & Smith
Incorporated.*
17(b)(4) Materials prepared for the Special Committee of Wheelabrator
Technologies Inc. by Goldman, Sachs & Co. and Lazard Freres & Co.
LLC.*
17(b)(5) Materials prepared for the Board of Directors of Waste Management,
Inc. by Merrill Lynch, Pierce, Fenner & Smith Incorporated.*
17(c)(1) Agreement and Plan of Merger dated as of December 8, 1997 by and
among Waste Management, Inc. ("Waste Management"), WMI Merger Sub,
Inc. ("Merger Sub") and Wheelabrator Technologies Inc. (the
"Company") (incorporated by reference to Appendix A to the Definitive
Proxy Statement filed as Exhibit 17(d)(1) hereto).
17(c)(2) Agreement and Plan of Merger and Reorganization, dated June 14, 1989,
among The Wheelabrator Group, Inc. ("WGI"), Resco Holdings Inc.
("RHI") and Wheelabrator Technologies Inc. (incorporated by reference
to Annex I to Joint Proxy Statement/Prospects dated July 24, 1989
included in the Registration Statement of WGI on Form S-4,
Registration No. 33-30113).
17(c)(3) Modification Agreement, dated August 24, 1989, among the Company,
RHI, WTI, The Henley Group, Inc. ("Henley") and Waste Management of
North America, Inc. ("WMNA") (incorporated by reference to the
Statement on Schedule 13D (the "13D") filed by Waste Management on
August 31, 1989).
17(c)(4) Agreement and Plan of Merger, dated March 30, 1990, among Waste
Management, WMI Sub Inc. and the Company (the "WMNA Merger
Agreement") (incorporated by reference to Annex 1 to Exhibit 7 to
Amendment 3 to the 13D, filed by Waste Management on August 2, 1990).
17(c)(5) Amendment to the WMNA Merger Agreement (the "Amendment"), dated July
24, 1990, among Waste Management, WMI Sub Inc. and the Company
(incorporated by reference to the WMNA Merger Agreement, as amended
to reflect the Amendment, a copy of which was included as Annex 1 to
the Proxy Statement-Prospectus of Waste Management and the Company, a
copy of which was included as Exhibit 7 to Amendment 3 to the 13D,
filed by Waste Management on August 2, 1990).
17(c)(6) Certain ancillary agreements to the WMNA Merger Agreement (the
"Ancillary Agreements"), among Waste Management and the Company
(incorporated by reference to the Ancillary Agreements, filed as
Exhibits 8, 9, 10, 11 and 12 to Amendment 4 to the 13D, filed by
Waste Management on September 10, 1990.
17(c)(7) Letter Agreement, dated October 25, 1990, among the Company, WMNA,
Henley, Henley Support Co. Two and RHI (incorporated by reference to
Exhibit 13 to Amendment 6 to the 13D, filed by Waste Management on
November 20, 1990).
</TABLE>
6
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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17(c)(8) The Agreement and Plan of Merger, dated December 8, 1997, among Waste
Management, the Company and WMI Merger Sub, Inc. (incorporated by
reference to Appendix A to the Definitive Proxy Statement filed as
Exhibit 17(d)(1) hereto.
17(d)(1) Definitive Proxy Statement.*
17(d)(2) Letter of Transmittal.+
17(d)(3) Notice of Merger.+
17(e) Section 262 of the Delaware General Corporation Law (incorporated by
reference to Appendix C to the Definitive Proxy Statement filed as
Exhibit 17(d)(1) hereto).
17(f) Inapplicable.
</TABLE>
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+Filed herewith.
*Previously filed.
7
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EXHIBIT 17(A)
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CREDIT AGREEMENT
dated as of
March 31, 1998
among
WASTE MANAGEMENT, INC.,
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$575,000,000 TERM LOAN FACILITY
$675,000,000 REVOLVING CREDIT FACILITY
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
<S> <C>
Page
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Definitions.................................................. 1
SECTION 1.01. Defined Terms.................................................................... 1
SECTION 1.02. Terms Generally.................................................................. 14
SECTION 1.03. Accounting Terms; GAAP........................................................... 14
ARTICLE II
The Credits................................................... 15
SECTION 2.01. Commitments...................................................................... 15
SECTION 2.02. Loans and Borrowings............................................................. 15
SECTION 2.03. Requests for Term and Revolving Borrowings....................................... 15
SECTION 2.04. Funding of Borrowings............................................................ 16
SECTION 2.05. Interest Elections............................................................... 16
SECTION 2.06. Procedure for Money Market Borrowing............................................. 17
SECTION 2.07. Termination and Reduction of Commitments......................................... 18
SECTION 2.08. Repayment of Loans; Evidence of Debt............................................. 19
SECTION 2.09. Prepayment of Loans; Mandatory Commitment Reductions............................. 20
SECTION 2.10. Facility and Commitment Fees..................................................... 21
SECTION 2.11. Interest......................................................................... 21
SECTION 2.12. Alternate Rate of Interest....................................................... 22
SECTION 2.13. Increased Costs.................................................................. 22
SECTION 2.14. Break Funding Payments........................................................... 23
SECTION 2.15. Taxes............................................................................ 24
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...................... 25
SECTION 2.17. Mitigation Obligations; Replacement of Lenders................................... 26
ARTICLE III
Representations and Warranties........................................ 27
SECTION 3.01. Existence........................................................................ 27
SECTION 3.02. Power and Authority; Enforceability.............................................. 27
SECTION 3.03. No Conflicts; No Burdensome Restrictions......................................... 27
SECTION 3.04. Financial Statements; Liabilities; Disclosure; No Material Adverse Change........ 28
SECTION 3.05. Litigation....................................................................... 29
SECTION 3.06. Property Matters................................................................. 29
SECTION 3.07. Compliance; No Default........................................................... 29
SECTION 3.08. Investment and Holding Company Status............................................ 29
SECTION 3.09. Taxes............................................................................ 29
</TABLE>
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<TABLE>
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SECTION 3.10. Labor Matters................................................................... 30
SECTION 3.11. ERISA........................................................................... 30
ARTICLE IV
Conditions.................................................. 30
SECTION 4.01. Effective Date.................................................................. 30
SECTION 4.02. Each Credit Event............................................................... 31
ARTICLE V
Affirmative Covenants.......................................... 31
SECTION 5.01. Financial Statements and Other Information...................................... 31
SECTION 5.02. Notices of Material Events...................................................... 32
SECTION 5.03. Existence; Conduct of Business.................................................. 33
SECTION 5.04. Payment of Obligations.......................................................... 33
SECTION 5.05. Maintenance of Properties; Insurance............................................ 33
SECTION 5.06. Books and Records; Inspection Rights............................................ 33
SECTION 5.07. Compliance with Laws and Contractual Obligations................................ 33
SECTION 5.08. Use of Proceeds................................................................. 34
ARTICLE VI
Negative Covenants............................................. 34
SECTION 6.01. Financial Covenants............................................................. 34
SECTION 6.02. Subsidiary Indebtedness; Guarantee Obligations.................................. 34
SECTION 6.03. Liens; Sale/Leaseback Transactions.............................................. 36
SECTION 6.04. Fundamental Changes............................................................. 37
SECTION 6.05. Restricted Payments............................................................. 37
SECTION 6.06. Transactions with Affiliates.................................................... 38
SECTION 6.07. Limitation on Optional Payments and Modifications of Debt Instruments........... 38
SECTION 6.08. Limitation on Changes in Fiscal Periods......................................... 38
SECTION 6.09. Restrictive Agreements.......................................................... 38
ARTICLE VII
Events of Default............................................ 39
ARTICLE VIII
The Administrative Agent......................................... 41
ARTICLE IX
Miscellaneous................................................ 42
SECTION 9.01. Notices......................................................................... 42
SECTION 9.02. Waivers; Amendments............................................................. 43
</TABLE>
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<TABLE>
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Page
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<S> <C>
SECTION 9.03. Expenses; Indemnity; Damage Waiver......................................... 44
SECTION 9.04. Successors and Assigns..................................................... 45
SECTION 9.05. Survival................................................................... 47
SECTION 9.06. Counterparts; Integration; Effectiveness................................... 47
SECTION 9.07. Severability............................................................... 47
SECTION 9.08. Right of Setoff............................................................ 47
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process................. 48
SECTION 9.10. WAIVER OF JURY TRIAL....................................................... 48
SECTION 9.11. Headings................................................................... 48
SECTION 9.12. Confidentiality............................................................ 49
</TABLE>
SCHEDULES:
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Schedule 1.01 -- Disclosed Matters
Schedule 2.01 -- Commitments
Schedule 6.02 -- Existing Indebtedness and Investment Commitments
Schedule 6.03 -- Existing Liens
Schedule 6.09 -- Existing Restrictions
EXHIBITS:
- --------
Exhibit A -- Form of Addendum
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Opinion of Counsel
Exhibit E -- Form of Money Market Loan Confirmation Letter
-iii-
<PAGE>
CREDIT AGREEMENT, dated as of March 31, 1998, among WASTE MANAGEMENT,
INC., a Delaware corporation, the Lenders party hereto, and THE CHASE MANHATTAN
BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Addendum" means an instrument, substantially in the form of Exhibit
A, by which a Lender becomes a party to this Agreement, effective on the
Effective Date.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
<PAGE>
2
"Applicable Margin" means the per annum rate set forth below opposite
the Level then in effect:
Level Term Loans Revolving Loans
----- ---------- ---------------
Level I 0.450% 0.300%
Level II 0.550% 0.400%
Level III 0.750% 0.600%
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Revolving Commitments and outstanding Term Loans
represented by such Lender's Revolving Commitment and outstanding Term Loans. If
the Revolving Commitments have terminated or expired and the Term Loans have
been paid in full, the Applicable Percentages shall be determined based upon the
Revolving Commitments and outstanding Term Loans most recently in effect or
outstanding, giving effect to any assignments.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit B or any other form approved by the Administrative Agent.
"Attributable Debt" means, in respect of a Sale/Leaseback Transaction,
as at the time of determination, the present value (discounted at the interest
rate assumed in making calculations in accordance with FAS 13) of the total
obligations of the Borrower or the relevant Subsidiary, as lessee, for rental
payments during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Waste Management, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans or Term Loans of the same Class
and Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect and (b) a
Money Market Loan made by a Revolving Lender on a single date and as to which a
single Interest Period is in effect.
"Borrowing Request" means (a) in the case of a Term Borrowing or
Revolving Borrowing, a request by the Borrower for a Borrowing in accordance
with Section 2.03, substantially in the form of Exhibit C and (b) in the case of
a Money Market Borrowing, the relevant Money Market Bid Request.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City, Pittsburgh, Pennsylvania,
Charlotte, North Carolina or Chicago, Illinois are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
<PAGE>
3
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any "person" or "group" (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
SEC thereunder as in effect on the date hereof), of shares representing more
than 20% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated; or (c) the failure of WMNA to
remain a Wholly Owned Subsidiary of the Borrower.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Money Market Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means a Revolving Commitment or Term Commitment, or any
combination thereof (as the context requires).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any non-cash extraordinary,
unusual or non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business) and (f) any other non-cash charges, and minus,
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4
without duplication and to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (a) interest income, (b) any
non-cash extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis.
"Consolidated Leverage Ratio" means, at any date, the ratio of (a)
Consolidated Total Debt on such date to (b) Consolidated EBITDA for the period
of four consecutive fiscal quarters ending with the most recent fiscal quarter
for which the relevant financial information is available.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under this
Agreement) or Requirement of Law applicable to such Subsidiary.
"Consolidated Net Worth" means the total stockholders' equity of the
Borrower and its consolidated Subsidiaries determined in accordance with GAAP.
"Consolidated Total Debt" means, at any date, the aggregate principal
amount of all long-term debt (whether or not classified as a current liability)
and short-term debt required to be classified and accounted for as such on a
balance sheet of the Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP and consistent with the most recent
balance sheet referred to in Section 3.04.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt Offering" means the incurrence by the Borrower or any Subsidiary
(other than any Excluded Subsidiary) of any Indebtedness for borrowed money,
other than (a) commercial paper, (b) industrial revenue bonds, (c) Loans, (d)
Non-Public Indebtedness (as defined below) of the Borrower incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
provided that such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement (and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof), (e) Non-Public Indebtedness
of any
<PAGE>
5
Subsidiary incurred pursuant to clause (i), (ii), (iii), (iv), (v), (vi) or
(vii) of Section 6.02(a), (f) Indebtedness owing to the Borrower or any
Subsidiary and (g) any incurrence of Indebtedness resulting, when taken together
with any one or more related incurrences, in aggregate Net Cash Proceeds of less
than $50,000,000. As used in this definition, "Non-Public Indebtedness" refers
to Indebtedness that is not incurred pursuant to a public offering or a Rule
144A private placement.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the collective reference to (a) actions,
suits and proceedings and the environmental matters disclosed in Schedule 1.01
and (b) matters disclosed pursuant to filings made by the Borrower with the SEC
that were publicly available prior to the Effective Date or pursuant to the
Borrower's Annual Report on Form 10-K delivered to the Lenders on or prior to
the Effective Date.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02), which
date is March 31, 1998.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any of its Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Offering" means the issuance by the Borrower or any Subsidiary
(other than any Excluded Subsidiary) of any Capital Stock, other than (a)
issuances by the Borrower of common stock or common stock options to directors,
officers and employees of the Borrower and its Subsidiaries in connection with
compensation programs, (b) issuances of Capital Stock to the Borrower or any
Subsidiary and (c) any issuance of Capital Stock resulting, when taken together
with any one or more related issuances, in aggregate Net Cash Proceeds of less
than $50,000,000.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of
<PAGE>
6
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or
a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Subsidiaries" means the collective reference to WME, NSC
Corporation, National Seal Company and their respective subsidiaries.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability to comply with
Section 2.15(e) (other than as a result of a Change in Law occurring after the
date such Foreign Lender becomes a Lender), except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average
<PAGE>
7
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer or controller of the
Borrower.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Full Availability Date" means the date on or after April 1, 1998 on
which the WTI Stock Purchase is consummated.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all
<PAGE>
8
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning set forth in Section 9.03(b).
"Index Debt Rating" means the respective ratings assigned by S&P and
Moody's to the senior, unsecured, long-term indebtedness for borrowed money of
the Borrower that is not guaranteed or subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and (c) with respect to any Money Market Loan, the
last day of the Interest Period applicable thereto.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one month thereafter
and (b) with respect to any Money Market Borrowing, the period (which shall not
be less than seven days or more than thirty days) commencing on the date of such
Borrowing and ending on the date specified in the relevant Money Market Bid
Request; provided, that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Eurodollar Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
<PAGE>
9
"Investments" has the meaning set forth in Section 6.02(c).
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Level I" applies at any date if, at such date, the Index Debt Rating
is BBB or above by S&P and Baa2 or above by Moody's.
"Level II" applies at any date if, at such date, Level I is not
applicable and the Index Debt Rating is BBB- or above by S&P and Baa3 or above
by Moody's.
"Level III" applies at any date if, at such date, neither Level I nor
Level II is applicable.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Dow Jones Markets Page 3750 (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing
for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Repayment Obligations" has the meaning set forth in Section
6.02(c).
"Loans" means the loans made by the Lenders (or any of them) to the
Borrower pursuant to this Agreement.
"Majority Revolving Lenders" means the holders of at least 51% of the
Revolving Commitments, or if the Revolving Commitments have been terminated, the
aggregate unpaid principal amount of the Revolving Loans.
"Majority Term Lenders" means the holders of at least 51% of the
aggregate unpaid principal amount of the Term Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the
<PAGE>
10
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its
obligations under this Agreement or (c) the rights of or benefits available to
the Lenders under this Agreement.
"Material Asset Sale" means any sale, transfer or other disposition
(including pursuant to a sale and leaseback transaction) of any property or
asset of the Borrower or any Subsidiary (other than any Excluded Subsidiary),
other than (a) dispositions expressly permitted by Section 6.04, (b)
dispositions of trade receivables and (c) any other disposition resulting, when
taken together with any one or more related dispositions, in aggregate Net Cash
Proceeds of less than $50,000,000.
"Material Indebtedness" means Indebtedness of, commitments providing
for the incurrence of Indebtedness by, or obligations in respect of one or more
Hedging Agreements of, any one or more of the Borrower and its Subsidiaries in a
principal amount exceeding, individually or in the aggregate, $100,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time. Material
Indebtedness shall not include the Loans or the Commitments.
"Money Market Bid" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.06.
"Money Market Bid Rate" means, with respect to any Money Market Bid,
the fixed rate offered by the Lender making such Money Market Bid.
"Money Market Bid Request" means a request by the Borrower for Money
Market Bids in accordance with 2.06.
"Money Market Loan" means a Loan made pursuant to Section 2.06.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including any cash received in
respect of any non-cash proceeds, but only as and when received, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid by the Borrower
and the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale or other disposition of an asset, the
amount of all payments required to be made by the Borrower and the Subsidiaries
as a result of such event to repay any Indebtedness secured by such asset and
(iii) in the case of the sale or other disposition of an asset, the amount of
all taxes paid (or reasonably estimated to be payable) by the Borrower and the
Subsidiaries that are directly attributable to such event (as determined
reasonably and in good faith by the chief financial officer of the Borrower).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
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11
"Participant" has the meaning set forth in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
statutory landlord's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 30 days or are being contested in compliance with Section
5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any of its ERISA Affiliates is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
<PAGE>
12
"Required Lenders" means the holders of at least 51% of (a) until the
Full Availability Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans and (ii) the Revolving
Commitments or, if the Revolving Commitments have been terminated, the aggregate
unpaid principal amount of the Revolving Loans.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restricted Payment" means, with respect to the Borrower and its
Subsidiaries, any dividend or other distribution (whether in cash, securities or
other property) made by the Borrower or such Subsidiary with respect to any
shares of any class its capital stock, or any payment (whether in cash,
securities or other property) by the Borrower or such Subsidiary, including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any shares of any class
of its capital stock or any option, warrant or other right to acquire any shares
of any class of its capital stock.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans hereunder in an
aggregate principal amount not to exceed the amount of such commitment, as such
commitment may be (a) reduced from time to time pursuant to Section 2.07 or 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. The initial aggregate amount of the Lenders'
Revolving Commitments is $675,000,000.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with outstanding
Revolving Loans or Money Market Loans.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Revolving Maturity Date" means December 31, 1998.
"S&P" means Standard & Poor's Rating Services.
"Sale/Leaseback Transaction" has the meaning set forth in Section
6.03(b).
"SEC" means the Securities and Exchange Commission.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus
<PAGE>
13
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "owner") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the owner
in the owner's consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the owner or one or more subsidiaries of the owner or by the
owner and one or more subsidiaries of the owner.
"Subsidiary" means any subsidiary of the Borrower, other than WMFC.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make Term Loans hereunder in an aggregate principal
amount not to exceed the amount of such commitment, as such commitment may be
(a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Commitment is
set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Term Commitment, as applicable. The
initial aggregate amount of the Term Commitments is $575,000,000.
"Term Lender" means a Lender with a Term Commitment or, if the Term
Commitments have terminated or expired, a Lender with outstanding Term Loans.
"Term Loan" means a Loan made pursuant to clause (a) of Section 2.01.
"Term Maturity Date" means December 31, 1998.
"Trade Receivables Facility" has the meaning set forth in Section
4.01.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing (other than in
respect of Money Market Loans), refers to whether the rate of interest on such
Loan, or on the
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14
Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO
Rate or the Alternate Base Rate.
"Wholly Owned Subsidiary" means, as to any Person, any other Person
all of the capital stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"WME" means Waste Management International plc.
"WMFC" means Waste Management Financing Corporation.
"WMNA" means Waste Management of North America, Inc.
"WTI" means Wheelabrator Technologies Inc.
"WTI Stock Purchase" means the acquisition by the Borrower of the
outstanding common stock of WTI not already owned by the Borrower.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time.
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15
ARTICLE II
The Credits
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SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, (a) each Term Lender agrees to make a Term Loan to the Borrower on
the Full Availability Date in a principal amount not exceeding its Term
Commitment and (b) each Revolving Lender agrees to make Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in (i) such aggregate principal
amount exceeding such Lender's Revolving Commitment and (ii) the aggregate
principal amount of all outstanding Revolving Loans and Money Market Loans
exceeding (x) prior to the Full Availability Date, $325,000,000 or (y)
thereafter, the total Revolving Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Term Loan and Revolving
Loan shall be made as part of a Borrowing consisting of Loans of the same Class
and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. Each Money Market Loan shall be made in
accordance with the procedures set forth in Section 2.06. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and the Money
Market Bids of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Term Borrowing and Revolving
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Notwithstanding
anything to the contrary herein, there shall not at any time be more than a
total of ten Eurodollar Borrowings outstanding. Borrowings of more than one Type
and Class may be outstanding at the same time.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Term Maturity Date or the Revolving Maturity Date, as applicable.
SECTION 2.03. Requests for Term and Revolving Borrowings. To request a
Term Borrowing or Revolving Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing and (b) in the case of
an ABR Borrowing, not later than 12:00 noon, New York City time, on the Business
Day of the proposed Borrowing. Each such telephonic Borrowing Request shall be
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16
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received (on the date of
receipt so long as the 2:00 p.m. deadline specified above is satisfied), in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing Request
or Money Market Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Term Borrowing and
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to
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17
continue such Borrowing, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Money Market Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to clause
(iii) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day; and
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06. Procedure for Money Market Borrowing. (a) The Borrower
may at any time and from time to time request any one or more of the Revolving
Lenders to make offers to make Money Market Loans to the Borrower on any
Business Day during the Revolving Availability Period; provided that in no event
may the Borrower request a borrowing of Money Market Loans if, after giving
effect to such borrowing and the use of proceeds thereof, the sum of the Money
Market Loans and the Revolving Loans would be (x) prior to the Full Availability
Date, $325,000,000 or (y) thereafter, greater than the total
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18
Revolving Commitments. Each such Lender may, but shall have no obligation to,
make such offer, and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.06.
(b) In the event that the Borrower desires to borrow a Money Market
Loan from a Lender, the Borrower shall request that such Lender provide a
quotation to the Borrower of the terms under which such Lender would be willing
to provide such Money Market Loan, including the Money Market Bid Rate.
(c) In the event that the Borrower elects to accept a Lender's offer
for a Money Market Loan, the Borrower shall provide telephonic notice to such
Lender of its election by no later than 30 minutes after the time that such
offer was received by the Borrower. The failure of the Borrower to provide such
notice of acceptance in a timely manner shall be deemed to constitute a
rejection of the offer of such Lender. Any Money Market Loan to be made by a
Lender pursuant to this Section 2.06 shall be made by the Lender in the manner
specified in Section 2.04. The Borrower's acceptance of an offer of a Money
Market Loan shall be deemed to constitute a representation and warranty by the
Borrower that the conditions to borrowing set forth in clauses (a) and (b) of
Section 4.02 have been satisfied as of the date of such Money Market Loan.
(d) The Borrower agrees to forward to the Lender with respect to a
Money Market Loan written evidence of such Money Market Loan by sending on the
date upon which such Money Market Loan was made a letter, substantially in the
form of Exhibit E, executed and delivered by a duly authorized officer of the
Borrower, confirming the amount so borrowed, the rate of interest applicable
thereto and the maturity thereof (with such Money Market Loan being due and
payable on such date of maturity); provided that the failure of the Borrower to
provide such letter shall not impair the obligation of the Borrower to repay any
Money Market Loan borrowed by it. All borrowings pursuant to this Section 2.06
shall bear interest at the rate quoted to the Borrower by the relevant Lender in
its quotation described in clause (b) above, regardless of any change in the
Federal Funds Effective Rate or any other interest rate between the time of
quoting and the time of borrowing.
(e) The Borrower shall promptly notify the Administrative Agent of
the amount, Money Market Bid Rate and Interest Period with respect to each Money
Market Loan and the identity of the Lender with respect thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Commitments shall automatically terminate at
5:00 p.m., New York City time, on the Full Availability Date (or, if the
Borrower shall withdraw its offer to consummate the WTI Stock Purchase, on the
date of such withdrawal) or the Term Maturity Date, whichever is sooner and (ii)
the Revolving Commitments shall automatically terminate on the Revolving
Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.09,
the aggregate outstanding principal amount of Revolving Loans and Money Market
Loans would exceed the total Revolving Commitments.
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19
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
(d) Any termination or reduction of the Commitments of any Class
shall be permanent. Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments of
such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Revolving Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Term Lender the then unpaid
principal amount of the Term Loan of such Lender on the Term Maturity Date and
(iii) to the Administrative Agent for the account of each relevant Lender the
then unpaid principal amount of each Money Market Loan made by such Lender on
the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
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SECTION 2.09. Prepayment of Loans; Mandatory Commitment Reductions.
(a) Subject to compliance with Section 2.14, the Borrower shall have the right
at any time and from time to time to optionally prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (e) of this
Section; provided that the Borrower shall not have the right to prepay any Money
Market Loan without the prior consent of the Lender thereof.
(b) In the event and on each occasion that any Net Cash Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Equity Offering or Debt Offering, the Borrower shall, within three Business Days
after such Net Cash Proceeds are received, prepay Term Loans in an aggregate
amount equal to such Net Cash Proceeds.
(c) In the event and on each occasion that any Net Cash Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Material Asset Sale, (i) until the Term Loans have been paid in full, the
Borrower shall, within three Business Days after such Net Cash Proceeds are
received, prepay Term Loans in an aggregate amount equal to such Net Cash
Proceeds or (ii) thereafter, until the Revolving Commitments have been reduced
to $325,000,000 or less, the Revolving Commitments shall automatically be
permanently reduced on the date that is three Business Days after such Net Cash
Proceeds are received in an aggregate amount equal to such Net Cash Proceeds, in
which case, on such date, the Borrower shall prepay the Revolving Loans and,
once the Revolving Loans have been prepaid in full, cash collateralize the Money
Market Loans to the extent the aggregate outstanding principal amount thereof
exceeds the Revolving Commitments as so reduced.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in a written notice to the Administrative
Agent; provided that each prepayment of Borrowings of any Class shall be applied
to prepay ABR Borrowings of such Class before any other Borrowings of such
Class. Notwithstanding anything to the contrary in this Section 2.09, mandatory
prepayments that would otherwise be required to be applied to a Eurodollar
Borrowing prior to the last day of the Interest Period applicable thereto may,
at the option of the Borrower, be deferred until such last day, in which case
the Borrower shall cash collateralize such Eurodollar Borrowing.
(e) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any optional prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section 2.07, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.07. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each optional partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.11.
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(f) In order to cash collateralize any amount of any Loan otherwise
required to be prepaid (such amount, a "Prepayment Amount") pursuant to this
Section 2.09, the Borrower shall place an amount equal to such Prepayment Amount
in an interest-bearing cash collateral account held by the Administrative Agent
for the benefit of the relevant Lenders on terms reasonably satisfactory to the
Administrative Agent; provided that any such amount will be unavailable to be
withdrawn from such cash collateral account except on the last day of the
Interest Period applicable to the relevant Loan. Amounts held in such cash
collateral account shall be invested as reasonably directed by the Borrower. Any
interest earned on the amount held in such cash collateral account shall be
remitted to the Borrower after such Prepayment Amount and accrued interest
thereon has been paid.
SECTION 2.10. Facility and Commitment Fees. The Borrower agrees to
pay to the Administrative Agent for the account of each Revolving Lender a
facility fee, which shall accrue at an annual rate of 0.150% on the amount of
the Revolving Commitment of such Lender (whether or not utilized) (or, if any
Revolving Loans of such Lender remain outstanding after such Revolving
Commitment is terminated, on the amount of such Revolving Loans) during the
period from and including the Effective Date to but excluding the date on which
such Commitment terminates (or, if later, the date such Revolving Loans are paid
in full). Such accrued facility fees shall be payable in arrears, based on
invoices submitted by the Administrative Agent to the Borrower, on the last day
of March, June, September and December of each year and on the date on which the
Revolving Commitments terminate (or, if later, the date the Revolving Loans are
paid in full), commencing on June 30, 1998, and shall be paid in immediately
available funds to the Administrative Agent for distribution to the Revolving
Lenders. In addition, the Borrower agrees to pay to the Administrative Agent for
the account of each Term Lender a commitment fee, which shall accrue during the
period from the Effective Date to the Full Availability Date at an annual rate
of 0.150% on the unutilized amount of the Term Commitments, and shall be payable
on the Full Availability Date or on such earlier date as the Term Commitments
shall terminate pursuant to Section 2.07(a)(i). Facility fees and commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). Facility fees and commitment fees paid shall not be refundable under
any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin.
(c) Each Money Market Loan shall bear interest at a rate per annum
equal to the Money Market Bid Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Eurodollar Loan
or ABR Loan, 2% plus the rate otherwise applicable to such Loan as provided
above or (ii) in the case of any other amount (including overdue Money Market
Loans), the Alternate Base Rate plus 2%.
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(e) The Borrower unconditionally agrees to pay accrued interest on
each Loan, in arrears, on each Interest Payment Date for such Loan; provided
that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment, (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion and (iv) all accrued interest shall be
payable upon termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Money
Market Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Money Market Loan (or of
maintaining its obligation to
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23
make any such Loan) or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 30 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided, further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(e) Notwithstanding any other provision of this Section 2.13, no
Lender shall demand compensation for any increased cost or reduction or other
amount referred to above if it shall not at the time be the general policy or
practice of such Lender to demand such compensation in similar circumstances
under comparable provisions of other credit agreements.
(f) Notwithstanding any other provision of this Section 2.13, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Money Market Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Money Market Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Money Market Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.09(e) and is revoked in accordance herewith), (d) the
failure to borrow any Money Market Loan after accepting the Money Market Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Money Market
Loan other than on the last day
<PAGE>
24
of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.17, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, the loss to any Lender attributable to
any such event shall be deemed to include an amount determined by such Lender to
be equal to the excess, if any, of (i) the amount of interest that such Lender
would pay for a deposit equal to the principal amount of such Loan for the
period from the date of such payment, conversion, failure or assignment to the
last day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest Period that
would have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or an account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or the
relevant Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
<PAGE>
25
(e) Each Foreign Lender shall deliver to the Borrower and the
Administrative Agent two copies of either U.S. Internal Revenue Service Form
1001 or Form 4224, or, in the case of a Foreign Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Foreign Lender delivers a
Form W-8, an annual certificate representing that such Foreign Lender is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Foreign Lender claiming complete exemption from U.S.
federal withholding tax on all payments by the Borrower under this Agreement.
Such forms shall be delivered by each Foreign Lender on or before the date it
becomes a party to this Agreement. In addition, each Foreign Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Foreign Lender. Each Foreign Lender shall promptly
notify the Borrower at any time it determines that it is no longer in a position
to provide any previously delivered certificate to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 2.15(e), a Foreign Lender
shall not be required to deliver any form pursuant to this Section 2.15(e) that
such Foreign Lender is not legally able to deliver.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.13, 2.14
or 2.15, or otherwise) prior to 1:00 p.m., New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except that payments pursuant to Sections 2.13, 2.14 and 2.15
shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all
<PAGE>
26
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(b), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender's obligations under such Section until all such
unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.13, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.15, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any
<PAGE>
27
outstanding Money Market Loans held by it) to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Money Market
Loans), accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, including amounts that would be payable under Section 2.14 if such
assignment were a prepayment, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Existence. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Power and Authority; Enforceability. The Transactions are
within the corporate or other organizational powers of the Borrower and have
been duly authorized by all necessary corporate or other organizational and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. No Conflicts; No Burdensome Restrictions. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries. No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
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28
SECTION 3.04. Financial Statements; Liabilities; Disclosure; No Material
Adverse Change. (a) The Borrower has heretofore furnished to the Lenders its
Annual Report on Form 10-K for the fiscal year ended December 31, 1997, which
contains (i) its restated consolidated balance sheet and statements of income,
stockholders equity and cash flows as of and for the fiscal years ended December
31, 1995 and December 31, 1996, reported on by Arthur Andersen LLP, independent
public accountants, and (ii) its consolidated balance sheet and statements of
income, stockholders equity and cash flows as of and for the fiscal year ended
December 31, 1997, reported on by Arthur Andersen LLP, independent public
accountants. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP. As of the Effective Date, the Borrower and its
Subsidiaries do not have any material Guarantee obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including, without limitation, any material
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that have materially changed from those
reflected, individually or in the aggregate, in either (i) the most recent
financial statements referred to in this paragraph or (ii) the Disclosed
Matters. During the period from December 31, 1997 to and including the date
hereof there has been no disposition by the Borrower or any of its Subsidiaries
of any material part of their business or property (determined on a consolidated
basis with respect to the Borrower and its Subsidiaries), other than
dispositions disclosed in the Disclosed Matters. The Borrower has disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
(b) None of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender on or prior to the Effective Date in connection with the
negotiation of this Agreement or delivered hereunder, taken as a whole, contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
(c) During the period from December 31, 1997 through the Effective Date,
there has been no material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
(d) In connection with the representations and warranties made by the
Borrower in this Section 3.04, the Lenders agree that the Borrower shall not be
deemed in breach of any representation or warranty in this Section 3.04 on
account of the Borrower's completing the matters or taking the actions described
in the Borrower's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, as filed with the SEC, under the heading "Management's Discussion and
Analysis of Financial Condition and Results of Operations", or, in respect of
any such matter or action or other matters emerging from comments received by
the Borrower from the SEC or the Borrower's review of its accounting policies,
practices or procedures, having incurred charges, increased reserves or written
down asset values or adjusted, revised or restated financial statements or
footnotes for one or more quarters or years, so long as the nature and amount of
any such charge, reserve, write-down,
<PAGE>
29
adjustment, revision or restatement are substantially within the parameters
disclosed to the Lenders prior to the Effective Date.
SECTION 3.05. Litigation. Except for the Disclosed Matters, as of the
Effective Date, there are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (a) could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect (other than the Disclosed Matters) or (b)
that involve this Agreement or the Transactions.
SECTION 3.06. Property Matters. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for defects in title that
do not materially interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes,
and none of such property is subject to any Lien except as permitted by Section
6.03.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
SECTION 3.07. Compliance; No Default. Except for the Disclosed Matters,
each of the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
<PAGE>
30
SECTION 3.10. Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (a) there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened, (b) hours worked by
and payment made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters and (c) all payments due from the Borrower or
any of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $40,000,000 the fair market value of the assets of all such
underfunded Plans.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived by each Lender):
(a) The Administrative Agent shall have received (i) from the
Borrower, a counterpart of this Agreement (or a copy thereof by facsimile
transmission) signed on behalf of the Borrower and (ii) from each Lender
listed on Schedule 2.01, an executed Addendum (or a copy thereof by
facsimile transmission).
(b) The Borrower shall have terminated its existing credit facility
entered into as of December 29, 1997 and shall have extended the
termination date of its receivables-based financing arrangements (the
"Trade Receivables Facility") to December 31, 1998.
(c) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Winston & Strawn, counsel for the Borrower,
substantially in the form of Exhibit D, and covering such other matters
relating to the Borrower and its Subsidiaries, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent may reasonably request relating to
the organization, existence and good standing of the Borrower, incumbency
of officers thereof, the authorization of the Transactions, any necessary
corporate, organizational, governmental and third party approvals and any
other legal matters relating to the
<PAGE>
31
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Lenders shall have received the financial statements referred
to in Section 3.04(a).
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.0.2 Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement (other than Sections 3.04(c) and 3.05) shall be true and
correct on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) In the case of the Term Loans, the merger certificate with
respect to the merger of WMI Merger Sub, Inc. and WTI shall have been filed
substantially concurrently with such Borrowing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year of the Borrower,
to the extent prepared to comply with SEC requirements, a copy of Form
10-Ks filed with the SEC for such fiscal year or, if no such Form 10-K was
so filed by Borrower for such fiscal year, its audited consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, in each case
reported on by Arthur Andersen LLP or other independent public
<PAGE>
32
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, to the extent prepared to
comply with SEC requirements, a copy of Form 10-Qs filed with the SEC for
such fiscal quarter or, if no such Form 10-Q was so filed by Borrower for
such fiscal quarter, its consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, in each case certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.01 and, with
respect to any items exceeding $10,000,000, Sections 6.02(a)(viii) and
6.03(a)(vii) and (iii) stating whether any change in GAAP has had a
material effect on the financial statements accompanying such certificate
and specifying the nature of any such change;
(d) promptly after the same become available, copies of all reports
on Form 10-K, 10-Q or 8-K and all proxy statements filed by the Borrower or
WTI with the SEC and any materials distributed by the Borrower or WTI to
its shareholders generally; and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that could reasonably be expected to
result in a Material Adverse Effect;
<PAGE>
33
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, sale of assets, liquidation or dissolution permitted
under Section 6.04.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance . The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, will
cause each of its Wholly Owned Subsidiaries to and, to the extent practicable,
will cause each of its other Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.07. Compliance with Laws and Contractual Obligations . The
Borrower will, and will cause each of its Subsidiaries to, comply with all
Requirements of Law (including, without limitation, Environmental Laws) and all
Contractual Obligations applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
<PAGE>
34
SECTION 5.08. Use of Proceeds. The proceeds of the Term Loans shall
be used only to finance the WTI Stock Purchase. The proceeds of the Revolving
Loans and Money Market Loans shall be used only to finance the working capital
needs of the Borrower and its Subsidiaries in the ordinary course of business,
to refinance commercial paper of the Borrower issued from time to time prior to
the Revolving Maturity Date and for other general corporate purposes (including
to finance the WTI Stock Purchase and other non-hostile acquisitions). No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Covenants. (a) The Borrower will not permit
the Consolidated Leverage Ratio at any time to exceed 3.50 to 1.
(b) The Borrower will not permit Consolidated Net Worth as of the
last day of any fiscal quarter or fiscal year of the Borrower to be less than
$1,000,000,000.
SECTION 6.02. Subsidiary Indebtedness; Guarantee Obligations. (a) The
Borrower will not permit any of its Wholly Owned Subsidiaries to create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created hereunder or under the Trade
Receivables Facility;
(ii) Indebtedness existing on the date hereof and, in the case of
any item of Indebtedness exceeding $25,000,000, described on Schedule 6.02,
and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(iii) Indebtedness of any Subsidiary to the Borrower or any other
Subsidiary and, in the case of any item of Indebtedness exceeding
$25,000,000 outstanding on the date hereof and owing to any non-Wholly
Owned Subsidiary, described on Schedule 6.02, so long as such Indebtedness
results from the operation of the Borrower's cash management system in the
ordinary course of business consistent with past practices;
(iv) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, provided that such Indebtedness is
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement; and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;
<PAGE>
35
(v) Indebtedness of any Person that becomes a Subsidiary after
the date hereof and any Indebtedness assumed in connection with the
acquisition of any assets or secured by a Lien on any assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that such Indebtedness exists at the time such Person becomes a
Subsidiary or at the time such acquisition is consummated and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary or the consummation of such acquisition;
(vi) Indebtedness in respect of performance bonds, bid bonds,
appeal bonds, bankers acceptances, letters of credit, surety bonds or other
similar obligations arising in the ordinary course of business consistent
with past practices, and extensions, renewals and replacements thereof;
(vii) Indebtedness of any foreign Subsidiary of the Borrower to
the Borrower or any other Subsidiary, provided that the Investment
resulting from the incurrence of such Indebtedness is permitted by Section
6.02(c); and
(viii) other Indebtedness for all Wholly Owned Subsidiaries in an
aggregate principal amount not exceeding $100,000,000 at any one time
outstanding.
(b) The Borrower will not, and will not permit any of its Wholly
Owned Subsidiaries to, Guarantee any obligations of any other Person, except (i)
Guarantees by the Borrower, WMNA or WTI of obligations of any Subsidiary not
prohibited hereunder, provided that any Investment resulting from the making of
such Guarantee is permitted by Section 6.02(c) and (ii) Guarantees by the
Borrower, WMNA or WTI of obligations of third parties made in the ordinary
course of business consistent with past practices, provided that after the
Effective Date, no more than $25,000,000 of additional Guarantees of
Indebtedness for borrowed money shall be made pursuant to this clause (ii).
(c) The Borrower will not, and will not permit any of its Wholly
Owned Subsidiaries to, after the Effective Date, make any investment, loan or
advance in or to, or Guarantee any obligations of (collectively, "Investments"),
any Person (other than a Wholly Owned Subsidiary or WMFC), except:
(i) Investments funded prior to the Effective Date;
(ii) Investments made pursuant to binding commitments, Loan
Repayment Obligations (as defined below) or Guarantees in effect on the
Effective Date and, in the case of any commitment, Loan Repayment
Obligation or Guarantee exceeding $25,000,000, as described on Schedule
6.02, so long as such Investments are not funded until the Borrower or the
relevant Subsidiary is required by the terms thereof to do so; and
(iii) other Investments for the Borrower and its Wholly Owned
Subsidiaries, taken together, not exceeding $100,000,000 in the aggregate
at any one time outstanding.
The repayment of Indebtedness owing by the Borrower or any Wholly Owned
Subsidiary to any non-Wholly Owned Subsidiary ("Loan Repayment Obligations")
shall be deemed to be an Investment for the purposes of this paragraph (c).
<PAGE>
36
SECTION 6.03. Liens; Sale/Leaseback Transactions. (a) The Borrower
will not, and will not permit any Subsidiary (other than any Excluded
Subsidiary) to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Permitted Encumbrances;
(ii) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof, or incurred pursuant to binding
commitments in effect on the date hereof, and, in the case of Liens
securing obligations (or commitments in respect thereof) in excess of
$25,000,000, described on Schedule 6.03; provided that (A) such Lien shall
not apply to any other property or asset of the Borrower or any Subsidiary
and (B) such Lien shall secure only those obligations which it secures on
the date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(iii) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof; together with extensions, renewals and replacements of any such
Liens that satisfy the requirements specified in clauses (B) and (C) above;
(iv) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, or on revenues of fixed or
capital assets so acquired, constructed or improved; provided that (A) such
security interests secure Indebtedness permitted by clause (iv) of Section
6.02(a), (B) such security interests and the Indebtedness secured thereby
are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such security interests
shall not apply to any other property or assets of the Borrower or any
Subsidiary; together with extensions, renewals and replacements of any such
Liens that satisfy the requirements specified in clauses (A), (C) and (D)
above;
(v) any Lien that may be deemed to be created by the Trade
Receivables Facility;
(vi) judgment Liens created by or resulting from any litigation
or legal proceeding if released or bonded within 30 days of the date of
creation thereof, unless such litigation or legal proceedings could
reasonably be expected to have a Material Adverse Effect; and
<PAGE>
37
(vii) other Liens not otherwise permitted by the foregoing
clauses (i) through (vi) securing any Indebtedness of any Subsidiary;
provided, that the aggregate outstanding principal amount of obligations
secured by Liens permitted by this clause (vii), when added to the then
outstanding amount of Attributable Debt, shall not exceed $50,000,000.
(b) The Borrower will not, and will not permit any Subsidiary
to, enter into any arrangement with any Person providing for the leasing by the
Borrower or any Subsidiary of real or personal property which has been or is to
be sold or transferred by the Borrower or such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or such
Subsidiary (each, a "Sale/Leaseback Transaction"), unless the aggregate
outstanding principal amount of Attributable Debt resulting from all such
transactions, when added to the then outstanding amount of obligations secured
by Liens permitted by Section 6.03(a)(vii), does not exceed $50,000,000.
(c) The applicability of the covenants contained in this Section
6.03 to non-Wholly Owned Subsidiaries is subject to the provisions of Section
9.02(c).
SECTION 6.04. Fundamental Changes. The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) any substantial part of its assets (determined on a
consolidated basis with respect to the Borrower and its Subsidiaries), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (a) any
Subsidiary (other than WMNA) may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (b) any Subsidiary may merge
into WMNA in a transaction in which WMNA is the surviving corporation, (c) any
Person (other than the Borrower or WMNA) may merge into any Subsidiary (other
than WMNA) in a transaction in which the surviving entity is or becomes a
Subsidiary, (d) any Subsidiary (other than WMNA) may sell, transfer, lease or
otherwise dispose of its assets to another Subsidiary and (e) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders.
SECTION 6.05. Restricted Payments. The Borrower will not, and
will not permit any of its Subsidiaries (other than any Excluded Subsidiary) to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except (a) the Borrower may declare and pay dividends with respect to
its capital stock payable solely in additional shares of its capital stock or
rights thereto, (b) the Borrower and its Subsidiaries may make Restricted
Payments pursuant to and in accordance with stock option plans or other benefit
plans for management or employees of the Borrower and its Subsidiaries, (c) any
Subsidiary may declare and pay dividends on a pro rata basis to the holders of
its capital stock, (d) so long as no Event of Default shall have occurred and be
continuing, the Borrower may pay regularly scheduled dividends in an aggregate
amount not to exceed $100,000,000 in any calendar quarter and (e) so long as no
Event of Default shall have occurred and be continuing, the Borrower and each
Subsidiary may repurchase its capital stock so long as the aggregate amount
expended in connection with all such repurchases does not exceed $50,000,000
during the term of this Agreement. The applicability of the covenants contained
in this Section 6.05 (to the extent relating to repurchases of capital stock) to
non-Wholly Owned Subsidiaries is subject to the provisions of Section 9.02(c).
<PAGE>
38
SECTION 6.06. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.05.
SECTION 6.07. Limitation on Optional Payments and Modifications of
Debt Instruments. The Borrower will not, and will not permit any of its
Subsidiaries (other than any Excluded Subsidiary) to, (a) optionally make or
offer to make any payment, prepayment, repurchase or redemption of or otherwise
defease or segregate funds with respect to any item of its Indebtedness (other
than the Loans) having a principal amount in excess of $100,000,000 (other than
in connection with any refinancing of any such item of Indebtedness in full
through the incurrence of Indebtedness permitted hereby and other than in
connection with payment of Indebtedness under existing revolving credit
facilities) or (b) amend, modify, waive or otherwise change, or consent or agree
to any amendment, modification, waiver or other change to, any of the terms of
any item of its Indebtedness (other than the Loans) having a principal amount in
excess of $100,000,000 (other than any such amendment, modification, waiver or
other change which (i) would extend the maturity or reduce the amount of any
payment of principal thereof or which would reduce the rate or extend the date
for payment of interest thereon, (ii) does not adversely affect the interests of
the Administrative Agent or any Lender under this Agreement or (iii) is of a
technical or clarifying nature). The applicability of the covenants contained in
this Section 6.07 to non-Wholly Owned Subsidiaries is subject to the provisions
of Section 9.02(c).
SECTION 6.08. Limitation on Changes in Fiscal Periods. The Borrower
will not change its method of determining fiscal quarters or fiscal years.
SECTION 6.09. Restrictive Agreements. The Borrower will not, and
will not permit any of its Subsidiaries (other than any Excluded Subsidiary) to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock, to make or repay loans or advances to the Borrower or any
other Subsidiary, to transfer assets to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions contained in documentation governing Indebtedness of (or commitments
providing for the incurrence of Indebtedness by) the Borrower or any of its
Subsidiaries, or in agreements between the Borrower and USA Waste Services,
Inc., which are in effect on the date hereof and identified on Schedule 6.09,
together with any restrictions and conditions contained in documentation
governing any Indebtedness incurred (or commitments received) after the
Effective Date so long as any such restrictions or conditions are no more
onerous than those applicable to the corresponding type of Indebtedness (or
commitment) referred to on said Schedule, (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) above shall not apply to restrictions or
<PAGE>
39
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (v) clause (a) above shall not apply to
customary provisions in leases restricting the assignment thereof.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof, or in any report,
certificate, financial statement or other document furnished pursuant to or
in connection with this Agreement or any amendment or modification hereof,
shall prove to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
existence of the Borrower or WMNA) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent (given at the request of the Required Lenders) to
the Borrower;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable (subject, in the case of interest, to the expiration of any stated
grace period);
(g) (i) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, but subject to the
expiration of any stated grace period) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, to require the prepayment,
repurchase, redemption or defeasance thereof, or to terminate any
commitment associated therewith, prior to its scheduled maturity or
termination date or (ii) a Termination Event occurs under and as defined in
the Trade Receivables Facility;
<PAGE>
40
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $100,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, with the
consent of the Required Lenders, and shall, at the request of the Required
Lenders, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the
Loans then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; and in case of any event
with respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall
<PAGE>
41
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any
<PAGE>
42
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
<PAGE>
43
(a) if to the Borrower, to it at 3003 Butterfield Road, Oak Brook,
Illinois 60523, Attention of Vice President - Finance (Telecopy No.
630-572-1340);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, 1 Chase Manhattan Plaza, New York, New York
10081, Attention of Maggie Swayle (Telecopy No. (212) 552-5662), with a
copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New York
10017, Attention of Joe Lillis (Telecopy No. (212) 270-1063); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender directly affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender directly affected
thereby, (iv) change any of the provisions of Section 2.09(b) or (c) without the
written consent of the Majority Term Lenders, (v) change any of the provisions
of Section 2.09(c) without the written consent of the Majority Revolving Lenders
or (vi) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent
hereunder without the prior written consent of the Administrative Agent.
<PAGE>
44
(c) Each Lender agrees that, in the event that any transaction that
would be prohibited by Section 6.03, Section 6.05 (in the case of repurchases of
capital stock) or Section 6.07 is consummated or proposed to be consummated by a
non-Wholly Owned Subsidiary as a result of recommendations by management or the
independent members of the board of directors of such Subsidiary, such Lender
will not unreasonably withhold its consent to any request by the Borrower to
effectuate appropriate modifications to this Agreement permitting such
transaction, subject to satisfaction of any conditions such Lender reasonably
deems appropriate in connection therewith.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
agrees to pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions of this Agreement (whether or not the transactions
contemplated hereby shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges
and disbursements of any counsel (including the reasonably documented and
allocated cost of internal counsel) for the Administrative Agent or any Lender,
in connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof.
(b) The Borrower agrees to indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto or thereto of their respective obligations hereunder or thereunder or the
consummation of the Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
<PAGE>
45
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment or Loans, the amount of the Commitment and/or Term Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire, except that this proviso
shall not apply to rights in respect of outstanding Money Market Loans; provided
further that any consent of the Borrower otherwise required under this paragraph
shall not be required if an Event of Default under clause (h) or (i) of Article
VII has occurred and is continuing. Any such assignment need not be ratable as
between any Class of Commitments or Loans. Upon acceptance and recording
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
<PAGE>
46
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Prior to disclosing information relating to the Borrower and its
Subsidiaries to any proposed assignee or Participant, each Lender shall cause
such proposed assignee or Participant to enter into a confidentiality agreement
substantially in the form previously executed and delivered by such Lender or
otherwise acceptable to the Borrower.
<PAGE>
47
(h) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any such pledge or assignment to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender
<PAGE>
48
under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. The Borrower hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) The Borrower irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
<PAGE>
49
SECTION 9.12. Confidentiality. Each Lender agrees to maintain the
confidentiality of information furnished to it by or on behalf of the Borrower
in connection with the Transactions as provided in any separate confidentiality
agreement entered into between the Borrower and such Lender.
<PAGE>
50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WASTE MANAGEMENT, INC.
By_________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By_________________________
Name:
Title:
<PAGE>
EXHIBIT 17(d)(2)
LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATE(S) FORMERLY REPRESENTING SHARES
OF COMMON STOCK
OF
WHEELABRATOR TECHNOLOGIES INC.
SURRENDERED FOR CASH PAYMENT PURSUANT TO THE MERGER OF
WMI MERGER SUB, INC., A WHOLLY OWNED SUBSIDIARY
OF WASTE MANAGEMENT, INC., WITH AND INTO WHEELABRATOR TECHNOLOGIES INC.
The Paying Agent:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand or by Overnight Courier:
Wall Street Station Wall Street Plaza
P.O. Box 1010 88 Pine Street, 19th Floor
New York, NY 10268-1010 New York, NY 10005
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The Instructions accompanying this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed. If certificates are
registered in different names, a separate letter of transmittal must be
submitted for each different registered owner. See Instruction 3.
This Letter of Transmittal is to be completed by shareholders surrendering
certificates evidencing Shares (as defined below) of Wheelabrator Technologies
Inc.
DESCRIPTION OF CERTIFICATES(S) SURRENDERED
- -------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) CERTIFICATE(S) SURRENDERED
OF REGISTERED HOLDER(S) (ATTACH ADDITIONAL LIST IF
NECESSARY. SEE INSTRUCTION 8.)
- -------------------------------------------------------------------------------
SHARE NUMBER OF
CERTIFICATE SHARES
NUMBER(S) REPRESENTED BY
CERTIFICATE(S)
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
TOTAL SHARES
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
Ladies and Gentlemen:
In connection with the merger (the "Merger") of WMI Merger Sub, Inc.
("Merger Sub"), a wholly owned subsidiary of Waste Management, Inc. ("Waste
Management"), with and into Wheelabrator Technologies Inc. (the "Company")
pursuant to the Agreement and Plan of Merger, dated as of December 8, 1997
(the "Merger Agreement"), by and among Waste Management, Merger Sub and the
Company, the undersigned, the registered holder(s) of the stock certificate(s)
(the "Certificates") formerly representing shares of common stock, par value
$.01 per share, of the Company (the "Shares") referred to above, or the
transferee or assignee of such registered holder(s), hereby surrenders the
Certificate(s) in exchange for $16.50 in cash (without interest) per Share.
The undersigned has received a copy of the letter dated March 30, 1998 (the
"Notice of Merger") sent to holders of Certificates with this Letter of
Transmittal.
<PAGE>
The undersigned represents that the undersigned has full authority to
surrender the Certificate(s), free and clear of all liens, claims and
encumbrances. The undersigned will, upon request, execute and deliver any
additional documents reasonably deemed appropriate or necessary by Waste
Management or Harris Trust Company of New York (the "Paying Agent") in
connection with the surrender of the Certificate(s). All authority conferred
or agreed to be conferred in this Letter of Transmittal shall be binding upon
the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned.
The undersigned understands that surrender is not made in acceptable form
until receipt by the Paying Agent of this Letter of Transmittal, or a
facsimile hereof, duly completed and signed, together with all accompanying
evidences of authority in form satisfactory to Waste Management (which may
delegate power in whole or in part to the Paying Agent). All questions as to
validity, form and eligibility of any surrender of Certificates hereunder will
be determined by Waste Management (which may delegate power in whole or in
part to the Paying Agent) and such determination shall be final and binding.
The undersigned understands that payment for surrendered Certificate(s) will
be made as promptly as practicable after surrender of Certificate(s) is made
in acceptable form.
Please issue and deliver the check in payment for the Certificate(s)
surrendered pursuant to this Letter of Transmittal to the undersigned at the
address specified above under "DESCRIPTION OF CERTIFICATE(S) SURRENDERED"
unless otherwise indicated under "SPECIAL PAYMENT INSTRUCTIONS" or "SPECIAL
DELIVERY INSTRUCTIONS" below.
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 2 AND 6) (SEE INSTRUCTIONS 2 AND 6)
To be completed ONLY if the To be completed ONLY if the
check(s) for surrendered check(s) for surrendered
Certificate(s) are to be issued in Certificate(s) are to be issued in
the name of someone other than the the name of the undersigned, but
undersigned. are to be sent to the undersigned
at an address other than that set
forth above.
Issue check to: Mail check to:
Name: ............................. Name: .............................
(PLEASE PRINT) (PLEASE PRINT)
Address: .......................... Address: ..........................
................................... ...................................
................................... ...................................
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
...................................
(SOCIAL SECURITY NUMBER OR TAXPAYER
I.D. NUMBER;
SEE SUBSTITUTE FORM W-9 ON REVERSE
SIDE)
<PAGE>
IMPORTANT
SHAREHOLDERS: SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
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Signature(s) of Holder(s)
Dated: , 1998
(Must be signed by the registered holder(s) exactly as name(s) appear(s)
on Certificate(s) or by a person(s) authorized to become a registered
holder(s) by certificates and documents transmitted herewith. If signature
is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, please provide the following information. See
Instruction 3.)
Name(s):
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(Please Print)
Capacity (full title):
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Address:
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(Include Zip Code)
Area Code and Telephone No.:
------------------------------------------------
Taxpayer Identification or Social Security No.:
------------------------------
(See Substitute Form W-9 on reverse side)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 2 AND 3)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized Signature:
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Name:
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(Please Print)
Name of Firm:
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Address:
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(Include Zip Code)
Area Code and Telephone No.:
------------------------------------------------
Dated: , 1998
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<PAGE>
INSTRUCTIONS
1. Delivery of Letter of Transmittal and Certificates. Please do not send
your Certificate(s) directly to the Company or Waste Management. This Letter
of Transmittal or a facsimile hereof, filled in and signed, must be used in
connection with the delivery and surrender of Certificates. A Letter of
Transmittal and the Certificates must be received by the Paying Agent in
satisfactory form in order to make an effective surrender. Certificates
evidencing all surrendered Shares, as well as a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) and any other documents
required by this Letter of Transmittal, must be received by the Paying Agent
at one of its addresses set forth on the reverse hereof in order to receive
payment for Shares. If Certificates are forwarded to the Paying Agent in
multiple deliveries, a properly completed and duly executed Letter of
Transmittal must accompany each such delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, CERTIFICATES AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE SURRENDERING
SHAREHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED
BY THE PAYING AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
Surrender may be made by mail or hand delivery to Harris Trust Company of
New York, as Paying Agent, at the addresses shown on the reverse side of this
Letter of Transmittal. A mailing envelope addressed to the Paying Agent is
enclosed for your convenience.
2. Guarantee of Signatures. Except as otherwise provided below, no signature
guarantee is required on this Letter of Transmittal. Signatures on this Letter
of Transmittal must be guaranteed by a financial institution (including most
banks, savings and loan associations and brokerage houses) that is a
participant in the Securities Transfer Agents Medallion Program (each an
"Eligible Institution") if (a) the Certificate surrendered herewith is
registered in a name other than that of the person surrendering the
Certificate, or (b) the registered holder of Certificates surrendered herewith
has completed either the box entitled "SPECIAL DELIVERY INSTRUCTIONS" or the
box entitled "SPECIAL PAYMENT INSTRUCTIONS" on the reverse hereof. See
Instruction 3.
3. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the
Certificate(s) surrendered hereby, the signatures(s) must correspond with the
name(s) as written on the face of the Certificate(s) without alteration,
enlargement or any other change whatsoever.
If any Certificate surrendered hereby is owned of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If this Letter of Transmittal is signed by the registered holder(s) of the
Certificate(s) surrendered hereby, no endorsements of Certificate(s) or
separate stock powers are required, unless payment is to be made to a person
other than the registered holder(s), in which case the Certificate(s)
surrendered hereby must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name(s) of the registered
holder(s) appear(s) on such Certificate(s). Signatures on such Certificate(s)
and stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Certificate(s) surrendered hereby, the
Certificate(s) surrendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Certificate(s). Signatures on such
Certificate(s) and stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory
to Waste Management of such person's authority so to act must be submitted.
<PAGE>
If Certificates are registered in different names (e.g., "John Doe" and "J.
Doe") or different forms of ownership (e.g., as a joint holder and as a
trustee), it will be necessary to fill in, sign and submit as many separate
Letters of Transmittal as there are different registrations of Certificates
surrendered.
4. Stock Transfer Taxes. The Company will bear the liability for any state
stock transfer taxes applicable to the delivery of checks in payment for
surrendered Certificate(s); provided, however, that if any such check is to be
issued to any person(s) other than the registered holder(s) of the surrendered
Certificate(s) or if surrendered Certificate(s) are registered in the name of
any person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer
to such other person will be deducted from the amount payable for such
Certificate(s) surrendered, unless evidence satisfactory to Waste Management
of the payment of such taxes, or exemption therefrom, is submitted. Except as
provided in this Instruction 4, it will not be necessary for transfer tax
stamps to be affixed to the Certificate(s) surrendered hereby.
5. Validity of Surrender; Irregularities. All questions as to validity, form
and eligibility of any surrender of Certificates hereunder will be determined
by Waste Management (which may delegate power in whole or in part to the
Paying Agent), and such determination shall be final and binding. Waste
Management reserves the right to waive any irregularities or defects in the
surrender of any Certificates, and its interpretations of the terms and
conditions of the Merger Agreement, the Notice of Merger and of this Letter of
Transmittal (including these instructions) with respect to such irregularities
or defects shall be final and binding. A surrender will not be deemed to have
been made until all irregularities have been cured or waived.
6. Special Payment and Delivery Instructions. If checks for surrendered
Certificate(s) are to be issued in the name of someone other than the
person(s) signing this Letter of Transmittal, the box entitled "SPECIAL
PAYMENT INSTRUCTIONS" on the reverse hereof must be completed. If checks for
surrendered Certificate(s) are to be issued to the person(s) signing this
Letter of Transmittal but are to be sent to an address other than that shown
in the box entitled "DESCRIPTION OF SHARES SURRENDERED" then the box entitled
"SPECIAL DELIVERY INSTRUCTIONS" on the reverse hereof must be completed. See
also Instruction 2.
7. Additional Copies. Additional copies of this Letter of Transmittal and of
the Notice of Merger may be obtained from the Paying Agent or the Information
Agent at the address listed on the reverse hereof.
8. Inadequate Space. If the space provided on this Letter of Transmittal is
inadequate, the Certificate numbers and number of Shares formerly represented
thereby should be listed on a separately signed schedule affixed hereto.
9. Lost Certificate(s). If any Certificate(s) have been lost, destroyed or
stolen, such should be indicated on the face of this Letter of Transmittal. In
such event, the Paying Agent will forward additional documentation necessary
to be completed in order to effectively surrender such lost, destroyed or
stolen Certificate(s). No interest will be paid on amounts due for
Certificate(s).
10. Substitute Form W-9. Each person or entity surrendering Certificate(s)
hereby is required to provide the Paying Agent with a correct Taxpayer
Identification Number ("TIN") on Substitute Form W-9, which is provided under
"IMPORTANT TAX INFORMATION" below, and to indicate that such person or entity
is not subject to backup withholding by checking the box in Part 2 of the
form. Failure to provide the information on the Substitute Form W-9 may
subject the surrendering holder of Shares to a penalty and a 31 percent
federal income tax withholding on the payment of the amounts due for the
Certificate(s). The box in Part 3 of the form may be checked if you have not
been issued a TIN and have applied for a number or intend to apply for a
number in the near future. If the box in Part 3 is checked and the Paying
Agent is not provided with a TIN within 60 days, the Paying Agent will
withhold 31 percent on payment of the amounts due for the Certificate(s) until
a TIN is provided to the Paying Agent.
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder is required by law to
provide the Paying Agent (as payer) with such shareholder's correct TIN on
Substitute Form W-9 below. If such shareholder is an individual, the TIN is
the shareholder's social security number. If the Paying Agent is not provided
with the correct TIN, the shareholder may be subject to a penalty imposed by
the Internal Revenue Service. In addition, payments that are made to such
Shareholder pursuant to the Merger Agreement and the Notice of Merger may be
subject to backup withholding of 31 percent.
Exempt shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. (In order for a foreign individual to qualify as an exempt
recipient, such person must submit a statement, signed under penalties of
perjury, attesting to such person's exempt status. Such statements can be
obtained from the Paying Agent). See the enclosed Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Paying Agent is required to withhold 31
percent of any payments made to the shareholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a shareholder pursuant to
the Merger, the shareholder must notify the Paying Agent of such shareholder's
correct TIN by completing the form below certifying that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN)
and that (1) such shareholder has not been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding as a result of
failure to report all interest or dividends or (2) the Internal Revenue
Service has notified such shareholder that such shareholder is no longer
subject to backup withholding.
WHAT NUMBER TO GIVE THE PAYING AGENT
The Shareholder is required to give the Paying Agent the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual
owner, consult the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional guidelines on
which number to report.
PAYER'S NAME: Harris Trust Company of New York
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PART 1--PLEASE PROVIDE YOUR Social Security Number
TIN IN THE BOX AT THE RIGHT OR ..........................
AND CERTIFY BY SIGNING AND Employer Identification
DATING BELOW. Number
SUBSTITUTE
FORM W-9
DEPARTMENT OF ---------------------------------------------------------------
THE TREASURY PART 2--Check this box if you are NOT subject to backup
INTERNAL withholding under the provisions of Section 3406(a)(1)(C) of
REVENUE the Internal Revenue Code because (1) you have not been
SERVICE notified that you are subject to backup withholding as a
result of failure to report all interest or dividends or (2)
the Internal Revenue Service has notified you that you are
no longer subject to backup withholding.----> [_]
PAYER'S
REQUEST FOR
TAXPAYER ---------------------------------------------------------------
IDENTIFICATION CERTIFICATION--UNDER THE PENALTIES OF PER- PART 3--
NUMBER (TIN) JURY, I CERTIFY THAT THE INFORMATION PRO-
VIDED ON THIS FORM IS TRUE, CORRECT, AND
COMPLETE.
Awaiting TIN -
---> [_]
SIGNATURE.............. DATE...............
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU WITH RESPECT TO
CERTIFICATES SURRENDERED IN CONNECTION WITH THE MERGER. PLEASE REVIEW
ENCLOSED "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
<PAGE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TIN HAS NOT BEEN ISSUED TO
ME, AND EITHER (A) I HAVE MAILED OR DELIVERED AN APPLICATION TO RECEIVE A
TIN TO THE APPROPRIATE INTERNAL REVENUE SERVICE CENTER OR SOCIAL SECURITY
ADMINISTRATION OFFICE OR (B) I INTEND TO MAIL OR DELIVER AN APPLICATION IN
THE NEAR FUTURE. I UNDERSTAND THAT IF I DO NOT PROVIDE A TIN WITHIN SIXTY
(60) DAYS, 31 PERCENT OF ALL REPORTABLE PAYMENTS MADE TO ME THEREAFTER
WILL BE WITHHELD UNTIL I PROVIDE A NUMBER.
Signature...............................Date...............................
If you have any questions or require assistance submitting your Certificate(s),
please call:
HARRIS TRUST COMPANY OF NEW YORK
88 Pine Street
19th Floor
New York, NY 10005
(212) 701-7694
Holders of Shares may also contact the Information Agent at the following
address and telephone number:
WHEELABRATOR SHAREHOLDER SERVICES
P.O. Box 1400
Pittsburgh, PA 15230
(800) 443-6474
<PAGE>
EXHIBIT 17(d)(3)
WHEELABRATOR TECHNOLOGIES INC.
4 LIBERTY LANE WEST
HAMPTON, NEW HAMPSHIRE 03482
March 30, 1998
Dear Wheelabrator Technologies Inc. Stockholder:
Today, WMI Merger Sub, Inc. was merged into Wheelabrator Technologies Inc.
(the "Company") under the provisions of Section 251 of the Delaware General
Corporation Law. The Company thus became a wholly owned subsidiary of Waste
Management, Inc. In the merger, the previously outstanding shares of common
stock of the Company were converted into the right to receive $16.50 per share
in cash.
You must now turn in your stock certificates for the Company shares to
receive the $16.50 in cash per share merger consideration (unless you wish to
assert appraisal rights, as noted in the next paragraph). A Letter of
Transmittal is enclosed for you to submit your certificates. You should
complete the Letter of Transmittal and sign it at the appropriate places
(including the substitute Form W-9 taxpayer identification number
certification) and return it along with your stock certificate(s) to Harris
Trust Company of New York in the enclosed pre-addressed envelope, in the
manner set forth in the instructions to the Letter of Transmittal.
If you were a stockholder of record of the Company as of the effective date
of the merger and asserted appraisal rights, as provided in Section 262 of the
Delaware General Corporation Law, do not turn in your stock certificates with
the Letter of Transmittal. Strict compliance with the requirements of Section
262 is necessary in order to properly perfect appraisal rights, and you are
urged to review those requirements carefully.
If you have any questions or require assistance, please call Wheelabrator
Shareholder Services, the Information Agent, at (800) 443-6474 or Harris Trust
Company of New York, the Paying Agent, at (212) 701-7694.
Wheelabrator Technologies Inc.
Enclosures:
Letter of Transmittal, Guidelines for Certification of
Taxpayer Identification Number, Return Envelope
