<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to ___________
Commission file number 1-6805
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-1673682
- ---------------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
757 N. Eldridge
Houston, Texas 77079
- ---------------------------------------- ------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (281) 870-8100
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X . No .
--- ---
Indicate the number of shares outstanding of the issuer's common stock, as of
February 11, 1997:
213,056,444.
<PAGE> 2
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
(In Thousands Except for Per Share Amounts)
<TABLE>
<CAPTION>
----------------------------------------------------------------------
Three Months Ended
December 31,
--------------------------
1996 1995
----------------------------------------------------------------------
<S> <C> <C>
Revenues $1,495,137 $1,430,781
Cost of operations 1,111,298 1,048,105
---------- ----------
Gross profit 383,839 382,676
Selling, general and
administrative expense 220,037 208,514
---------- ----------
Income from operations 163,802 174,162
Interest, net 45,256 40,977
Equity in earnings of
unconsolidated affiliates (7,721) (12,110)
---------- ----------
Income before income taxes
and minority interest 126,267 145,295
Income taxes 50,507 58,118
Minority interest in
income of consolidated
subsidiaries 3,880 4,167
---------- ----------
Net income $ 71,880 $ 83,010
========== ==========
Number of common and common
equivalent shares used
in computing earnings
per share 201,877 199,878
========== ==========
Earnings per common and
common equivalent share $ .36 $ .42
======= =======
Cash dividends per
common share $ .17 $ .17
======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
-2-
<PAGE> 3
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
ASSETS
(In Thousands)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------
December 31, September 30,
1996 1996
(Unaudited)
- ------------------------------------------------------------------------
<S> <C> <C>
CURRENT ASSETS:
Cash $ 114,368 $ 110,224
Short-term investments 12,194 26,394
Receivables -
Trade, net of allowances for doubtful
accounts of $40,888 and $40,622 928,532 929,316
Other 46,437 42,543
Inventories 50,255 51,536
Deferred income taxes 110,246 119,914
Prepayments and other 81,290 107,868
---------- ----------
Total current assets 1,343,322 1,387,795
---------- ----------
PROPERTY AND EQUIPMENT, at cost, less
accumulated depreciation and amortization
of $2,797,746 and $2,737,788 3,884,308 3,920,721
---------- ----------
OTHER ASSETS:
Cost over fair value of net tangible
assets of acquired businesses,
net of accumulated amortization of
$148,798 and $138,636 1,676,913 1,671,461
Other intangible assets, net of
accumulated amortization of $95,348
and $110,835 106,746 110,925
Deferred income taxes 104,870 122,617
Investments in unconsolidated affiliates 290,848 287,051
Other 99,974 100,336
---------- ----------
Total other assets 2,279,351 2,292,390
---------- ----------
Total assets $7,506,981 $7,600,906
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
-3-
<PAGE> 4
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
LIABILITIES AND COMMON STOCKHOLDERS' EQUITY
(In Thousands Except for Share Amounts)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
December 31, September 30,
1996 1996
(Unaudited)
- --------------------------------------------------------------------------
<S> <C> <C>
CURRENT LIABILITIES:
Current portion of long-term debt $ 45,027 $ 59,806
Accounts payable 436,655 507,731
Accrued liabilities -
Salaries and wages 113,905 129,203
Taxes, other than income 48,576 40,876
Other 450,715 430,187
Income taxes 58,838 35,586
Deferred revenues 194,538 195,101
---------- ----------
Total current liabilities 1,348,254 1,398,490
---------- ----------
DEFERRED ITEMS:
Accrued environmental and
landfill costs 536,141 541,838
Deferred income taxes 107,444 108,041
Other 278,159 275,374
---------- ----------
Total deferred items 921,744 925,253
---------- ----------
LONG-TERM DEBT, net of current portion 2,666,830 2,766,885
---------- ----------
COMMITMENTS AND CONTINGENCIES
COMMON STOCKHOLDERS' EQUITY:
Common stock, $.16 2/3 par; 400,000,000
shares authorized; 213,388,843 and
213,390,458 shares issued 35,572 35,572
Additional paid-in capital 1,744,702 1,730,612
Retained earnings 1,082,807 1,031,331
Treasury stock, 1,028,663 and 1,027,278
shares, at cost (11,987) (11,926)
Stock and Employee Benefit Trust,
10,702,517 and 11,012,423 shares (280,941) (275,311)
---------- ----------
Total common stockholders' equity 2,570,153 2,510,278
---------- ----------
Total liabilities and common
stockholders' equity $7,506,981 $7,600,906
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
-4-
<PAGE> 5
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(In Thousands)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Three Months Ended
December 31,
------------------------
1996 1995
- ----------------------------------------------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 71,880 $ 83,010
---------- ---------
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization -
Property and equipment 129,292 125,630
Goodwill 11,155 11,934
Other intangible assets 6,654 8,009
Deferred income tax expense 23,417 4,930
Amortization of deferred investment tax credit (177) (177)
Provision for losses on accounts receivable 7,531 6,045
Gains on sales of fixed assets (1,603) (835)
Equity in earnings of unconsolidated
affiliates, net of dividends received (5,427) (10,345)
Minority interest in income of consolidated
subsidiaries, net of dividends paid 3,880 4,167
Increase (decrease) in cash from changes in
assets and liabilities excluding effects
of acquisitions -
Trade receivables (6,568) 28,300
Inventories 1,283 (3,945)
Other assets 18,015 11,545
Other liabilities (38,182) (76,098)
---------- ----------
Total adjustments 149,270 109,160
---------- ----------
Net cash provided by operating activities 221,150 192,170
---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (103,176) (249,816)
Payments for businesses acquired (58) (40,344)
Investments in unconsolidated affiliates (6,983) (4,816)
Proceeds from disposition of assets 10,833 24,195
Purchases of short-term investments -- (18,960)
Sales of short-term investments 14,222 --
Return of investment in unconsolidated
affiliates 10,241 8,018
---------- ----------
Net cash used in investing activities (74,921) (281,723)
---------- ---------
</TABLE>
(Continued on following page)
-5-
<PAGE> 6
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS (Continued)
(Unaudited)
(In Thousands)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Three Months Ended
December 31,
------------------------
1996 1995
- ----------------------------------------------------------------------------
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuances of stock 1,861 1,668
Proceeds from issuance of indebtedness 112,907 179,522
Repayments of indebtedness (222,951) (32,952)
Dividends paid (34,225) (33,796)
---------- ---------
Net cash provided by (used in)
financing activities (142,408) 114,442
---------- ---------
EFFECT OF EXCHANGE RATE CHANGES 323 (95)
---------- ---------
NET INCREASE IN CASH 4,144 24,794
CASH AT BEGINNING OF PERIOD 110,224 92,808
---------- ---------
CASH AT END OF PERIOD $ 114,368 $ 117,602
========== =========
SUPPLEMENTAL DISCLOSURE OF CASH PAID FOR:
Interest, net of capitalized amounts $ 30,938 $ 18,953
Income taxes $ 6,142 $ 10,318
</TABLE>
The accompanying notes are an integral part of these financial statements.
-6-
<PAGE> 7
BROWNING-FERRIS INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(1) Basis of Presentation -
The accompanying unaudited financial statements have been
prepared by the Company pursuant to the rules and regulations of
the Securities and Exchange Commission. Certain information and
footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules
and regulations. In the opinion of management, all adjustments and
disclosures necessary to a fair presentation of these financial
statements have been included. These financial statements should
be read in conjunction with the financial statements and notes
thereto included in the Company's Annual Report on Form 10-K for
the year ended September 30, 1996, as filed with the Securities and
Exchange Commission.
In October 1996, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 121 - "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be
Disposed Of", which was issued by the Financial Accounting
Standards Board in March 1995. The statement sets forth standards
for the recognition and measurement of impairment of long-lived
assets, including certain identifiable intangible assets and
goodwill related to those assets, to be held and used in an
entity's operations or expected to be disposed of. As the
Company's prior accounting practices were substantially in
compliance with the provisions of the new standard, the adoption of
SFAS No. 121 had no material effect on the Company's financial
position or results of operations.
(2) Earnings Per Common Share -
The following table reconciles the number of common shares
outstanding with the number of common and common equivalent shares
used in computing primary earnings per share (in thousands):
-7-
<PAGE> 8
<TABLE>
<CAPTION>
Three Months Ended
December 31,
--------------------
1996 1995
------- -------
<S> <C> <C>
Common shares outstanding, end of period 212,360 212,438
Less - Shares held in the Stock and
Employee Benefit Trust (10,702) (13,235)
------- -------
Common shares outstanding for purposes
of computing primary earnings per
share, end of period 201,658 199,203
Effect of using weighted average common
and common equivalent shares outstanding (144) (179)
Effect of shares issuable under stock
option plans based on the treasury
stock method 363 854
------- -------
Shares used in computing earnings
per share 201,877 199,878
======= =======
</TABLE>
Shares of common stock held in the Stock and Employee Benefit
Trust (the "Trust") are not considered to be outstanding in the
computation of common shares outstanding until shares are utilized
at the Company's option for the purposes for which the Trust was
established.
The difference between shares for primary and fully diluted
earnings per share was not significant in any period. Conversion
of the 6 3/4% Convertible Subordinated Debentures due 2005, which
were determined not to be common stock equivalents, was not assumed
in the computation of fully diluted earnings per share because the
debentures had an anti-dilutive effect in the periods prior to
their redemption in February 1996.
Earnings per common and common equivalent share were computed
by dividing net income by the weighted average number of shares of
common stock and common stock equivalents outstanding during each
period. Common stock equivalents include stock options, the
Company's 6 1/4% Convertible Subordinated Debentures due 2012 (the
"6 1/4% Debentures"), which were redeemed in February 1996, and the
7.25% Automatic Common Exchange Securities. The effect of the
6 1/4% Debentures on earnings per share was not significant in the
period prior to their redemption in February 1996 and, accordingly,
has not been included in the computation. The 7.25% Automatic
Common Exchange Securities had no effect on the computations for
the periods presented.
(3) Special Charges -
Special charges of $447 million ($362 million or $1.80 per
share after income taxes) were included in the Company's results of
operations for the fourth quarter of fiscal 1996. Charges of $349
million resulted principally from management decisions to sell the
Company's Italian operations, divest certain domestic and
-8-
<PAGE> 9
international non-core business assets and operations and close
certain recycling facilities not expected to achieve desired
performance objectives. The remainder of the special charges
related to the writedown of the Company's investment in the Azusa,
California landfill to fair value, which was determined based upon
the present value of the estimated future cash flows using a
discount rate commensurate with the risks involved. This writedown
was a result of the changing competitive nature of waste disposal
in the Los Angeles market area and the continuing negative legal
climate, including adverse decisions by California judicial and
regulatory authorities in fiscal 1996 and early fiscal 1997,
bearing on the site's ability to accept municipal solid waste.
The Company expects to complete the sale of its Italian
operations in 1997. An investment banking firm has been engaged to
assist in the marketing and sale of these operations. The Company's
investment in its Italian operations, before considering special
charges, was $206 million as of September 30, 1996. At the time of
the sale of all or substantially all of the Italian operations
occurs, losses accumulated in the foreign currency translation
component of common stockholders' equity ($48 million as of
December 31, 1996) must be reported as an additional loss on the
sale of these operations. Summary financial information related to
the Company's Italian operations is as follows (in thousands):
<TABLE>
<CAPTION>
For the Three Months
Ended
December 31,
--------------------- For the Year Ended
1996 1995 September 30, 1996
------- ------- ------------------
<S> <C> <C> <C>
Revenues $29,232 $29,253 $ 122,782
Income (loss)
from operations
and equity in
earnings of
unconsolidated
affiliates $(2,013) $229 $(182,584)
</TABLE>
The Company also expects to divest certain domestic and
international non-core business assets and operations and close
certain recycling facilities during 1997. Assets of these
operations, prior to the special charges, were approximately $177
million as of September 30, 1996. The results of operations for
these non-core business assets and operations and recycling
facilities were not material to the Company's consolidated results
of operations for fiscal 1996 as the aggregated revenues and income
(loss) from operations of these assets and operations represented
less than 4% of the Company's corresponding consolidated totals, on
a pre-special charge basis. During the first quarter, the Company
closed 22 and sold three recycling facilities.
-9-
<PAGE> 10
(4) Business Combinations -
During the current fiscal year, the Company paid approximately
$68,000 (including additional amounts payable, principally to
former owners, of $10,000) to acquire three solid waste businesses,
which were accounted for as purchases. The results of these
business combinations are not material to the Company's
consolidated results of operations or financial position.
During the prior fiscal year, the Company paid approximately
$243.4 million (including additional amounts payable, principally
to former owners, of $23.3 million and the issuance of 974,085
shares of the Company's common stock valued at $28.3 million) to
acquire 102 solid waste businesses, which were accounted for as
purchases, including the acquisition of the remaining 50% ownership
interest of Pfitzenmeier & Rau ("P&R"), a joint venture previously
owned 50% by Otto Waste Services, a 50% owned subsidiary of the
Company. In connection with these acquisitions, the Company
recorded additional interest-bearing indebtedness of $69.3 million
(including $55.0 million related to P&R) and other liabilities of
$37.4 million. The results of these business combinations were not
material to the Company's consolidated results of operations or
financial position.
The results of all businesses acquired in fiscal years 1997
and 1996 have been included in the consolidated financial
statements from the dates of acquisition. In allocating purchase
price, the assets acquired and liabilities assumed in connection
with the Company's acquisitions have been initially assigned and
recorded based on preliminary estimates of fair value and may be
revised as additional information concerning the valuation of such
assets and liabilities becomes available. As a result, the
financial information included in the Company's consolidated
financial statements is subject to adjustment prospectively as
subsequent revisions in estimates of fair value, if any, are
necessary.
(5) Long-Term Debt -
Long-term debt at December 31, 1996, and September 30, 1996,
was as follows (in thousands):
-10-
<PAGE> 11
<TABLE>
<CAPTION>
December 31, September 30,
1996 1996
------------ -------------
<S> <C> <C>
Senior indebtedness:
6.10% Senior Notes, net of
unamortized discount of $1,764
and $1,838 $ 198,236 $ 198,162
6.375% Senior Notes, net of
unamortized discount of $2,006
and $2,051 197,994 197,949
7 7/8% Senior Notes, net of
unamortized discount of $760
and $783 299,240 299,217
7.40% Debentures, net of
unamortized discount of
$2,069 and $2,082 397,931 397,918
9 1/4% Debentures 100,000 100,000
Solid waste revenue bond
obligations 161,721 149,127
Other notes payable 753,825 804,721
---------- ----------
2,108,947 2,147,094
Commercial paper and short-term
facilities to be refinanced 602,910 679,597
---------- ----------
Total long-term debt 2,711,857 2,826,691
Less current portion 45,027 59,806
---------- ----------
Long-term debt, net of current
portion $2,666,830 $2,766,885
========== ==========
</TABLE>
During December 1996, the Company amended the terms of its
existing $750 million Multicurrency Revolving Credit Agreement
which was originally established to fund the Company's acquisition
of Attwoods plc in December 1994. Under the terms of the amended
agreement, the facility has a 364-day term with a one-year term-out
option available to the Company at any time prior to its maturity
date in December 1997. The agreement contains a net worth
requirement consistent with the Company's $1 billion revolving
credit agreement.
It is the Company's intention to refinance certain commercial
paper balances and other outstanding borrowings classified as long-
term debt through the use of existing committed long-term bank
credit agreements in the event that alternative long-term
refinancing is not arranged. A summary by country of such
commercial paper balances and other outstanding borrowings
classified as long-term debt as of December 31, 1996 and September
30, 1996 is as follows (amounts in thousands):
-11-
<PAGE> 12
<TABLE>
<CAPTION>
December 31, September 30,
1996 1996
------------ -------------
<S> <C> <C>
United States -
Commercial paper $318,447 $438,296
Germany 284,463 241,301
-------- --------
$602,910 $679,597
======== ========
</TABLE>
As of December 31, 1996, distributions from retained earnings
could not exceed $1.0 billion under the most restrictive of the
Company's net worth maintenance requirements.
(6) Commitments and Contingencies -
Legal Proceedings.
The Company and certain subsidiaries are involved in various
administrative matters or litigation, including personal injury and
other civil actions, as well as other claims and disputes that
could result in additional litigation or other adversary
proceedings.
While the final resolution of any matter may have an impact on
the Company's consolidated financial results for a particular
quarterly or annual reporting period, management believes that the
ultimate disposition of these matters will not have a materially
adverse effect upon the consolidated financial position of the
Company.
Environmental Proceedings.
The Company and certain subsidiaries are involved in various
environmental matters or proceedings, including original or renewal
permit application proceedings in connection with the
establishment, operation, expansion, closure and post-closure
activities of certain landfill disposal facilities, and proceedings
relating to governmental actions resulting from the involvement of
various subsidiaries of the Company with certain waste sites
(including Superfund sites), as well as other matters or claims
that could result in additional environmental proceedings.
While the final resolution of any matter may have an impact on
the Company's consolidated financial results for a particular
quarterly or annual reporting period, management believes that the
ultimate disposition of these matters will not have a materially
adverse effect upon the consolidated financial position of the
Company.
-12-
<PAGE> 13
(7) Automatic Common Exchange Securities -
In July 1995, the Company issued to the public 11,499,200
7.25% Automatic Common Exchange Securities with a stated amount of
$35.625 per security ($409.7 million in total). Each security
consists of (1) a purchase contract under which (a) the holder will
purchase from the Company on June 30, 1998 (earlier under certain
circumstances), for an amount in cash equal to the stated amount of
$35.625, between .8333 of a share (in total approximately 9.6
million shares) and one share (a maximum of 11,499,200 shares) of
the Company's common stock (depending on the then market value of
the common stock) and (b) the Company will pay the holder contract
fees at the rate of 2.125% per annum on the security, and (2)
5.125% United States Treasury Notes having a principal amount equal
to $35.625 and maturing on June 30, 1998. The Treasury Notes
underlying these securities are pledged as collateral to secure the
holder's obligation to purchase the Company's common stock under
the purchase contract. The principal of the Treasury Notes
underlying such securities, when paid at maturity, will
automatically be applied to satisfy in full the holder's obligation
to purchase the Company's common stock. These securities are not
included on the Company's balance sheet; an increase in common
stockholders' equity will be reflected when cash proceeds are
received by the Company.
-13-
<PAGE> 14
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
- ---------------------
Net income for the first three months of fiscal 1997 was $71.9
million or $.36 per share. These results compare with net income
for the same period of the prior year of $83.0 million or $.42 per
share. The decline in first quarter results compared with the same
period of the prior year was due to lower earnings in North
America. Fiscal 1997 first quarter results continued to be
affected negatively in North America by the significant decline in
the weighted average value of recycling commodities and increased
operating costs, including severance and reorganization expenses
associated with both the reorganization of North American
operations in June 1996 and the recent reductions in employee
staffing levels to effect improvements in operating and
administrative efficiency. First quarter earnings were also
negatively affected by increased interest expense and lower
earnings of unconsolidated affiliates. The unfavorable impact of
these factors was offset partially by an increase in the Company's
income from operations of $5.7 million, principally due to lower
depreciation and amortization expense, which resulted from the
special charges of $447 million taken in the fourth quarter of
fiscal 1996 (see Note (3) of Notes to Consolidated Financial
Statements).
During the first quarter of fiscal 1997, the Company's actions
reflected its previously announced strategic shift in focus away
from an emphasis on external growth to an emphasis on internal
growth and on increasing return on assets. The redeployment of the
sales force was completed during the quarter, which should enable
sales personnel to better focus on the Company's customers. In
addition, the plan to reduce selling, general and administrative
expenses ("SG&A") commenced during the quarter with the reduction
of approximately 750 employees since September 30, 1996, and the
initiation of business and administrative consolidation activities.
SG&A as a percent of revenues was 14.7% for the first quarter,
higher than the same period of the prior year (14.6%), but lower
than the fourth quarter of fiscal 1996 (15.4%). The Company's SG&A
milestone for fiscal 1997 is to reduce SG&A as a percent of
revenues to 14.6% for the fiscal year. Further, the Company
completed its initial marketplace and business line strategic
reviews during the first quarter and identified core and non-core
business operations (including those considered in the special
charges incurred in the prior quarter) to be marketed and sold with
aggregate revenues of approximately $270 million in the U.S. and
$130 million outside of the U.S. During the first quarter, the
Company closed 22 recycleries and sold three. Capital expenditures
for the first quarter of fiscal 1997 were limited to $104 million
as the Company focused on improving the efficiency of its current
asset base.
The following profitability ratios (shown as a percent of
revenues) reflect certain profitability trends for the Company's
-14-
<PAGE> 15
operations. The Company has established an operating profit
milestone for fiscal 1997 to increase income from operations as a
percent of revenues to 12%. Also presented below are return on
asset information and ratios of earnings to fixed charges.
<TABLE>
<CAPTION>
Three Months Ended
-------------------- Year Ended
12/31/96 12/31/95 9/30/96
--------- --------- ----------
<S> <C> <C> <C>
Profitability Margins:
Gross profit 25.7% 26.7% 25.3%
Income from operations before
special charges 11.0% 12.2% 10.2%
Income from operations 11.0% 12.2% 2.5%
Income before income taxes,
minority interest and
extraordinary item 8.4% 10.2% 0.5%
Net income before special
charges and extraordinary
item (1) 4.8% 5.8% 4.7%
Net income (loss)(1) 4.8% 5.8% (1.8%)
Other Financial Information:
Return on Gross Assets 2.76% 3.09% 11.4%
Ratio of earnings to fixed
charges 2.81 3.29 1.02 (2)
</TABLE>
- ----------
(1) Does not reflect the pro forma effect of the use of cash
proceeds of $409.7 million to be received in the future
under the provisions of the 7.25% Automatic Common
Exchange Securities. (See Note (7) of Notes to
Consolidated Financial Statements.)
(2) Excluding the effects of the fiscal 1996 special charges
of $447 million, the ratio of earnings to fixed charges
for fiscal 1996 was 2.77.
The three months ended December 31, 1996, reflected declines
in all of the profitability margins presented above from the same
period of the prior year. These profitability margins were affected
negatively in domestic operations by the significant decline in the
weighted average value of recycling commodities in the current
quarter as compared with the first quarter of the prior year,
despite the mitigating impact of floor price contracts. The
weighted average market prices in North America for corrugated,
office paper and newspaper declined by 20%, to $56 per ton in the
first quarter of the current year from $70 per ton in the
comparable period last year. Current quarter profitability margins
were also affected negatively by increased operating costs,
including employee severance and reorganization expenses of $4.8
million incurred in the first quarter, offset partially by the
increase in income from operations associated principally with the
reduced depreciation and amortization expense resulting from the
special charges taken in the fourth quarter of fiscal 1996. In the
Company's international operations, improvements in gross profit
and income from operations margins in the current year were offset
-15-
<PAGE> 16
by increased interest expense and reduced earnings from
unconsolidated affiliates, principally due to the acquisition of
the remaining 50% ownership interest in Pfitzenmeier and Rau
("P&R") in the second quarter of fiscal 1996.
As stated above, management's focus has shifted from external
growth to an emphasis on internal growth with success measured by
cash flow and return on gross assets. Return on gross assets
("ROGA"), although not a measure of financial performance under
generally accepted accounting principles, is a new measurement for
the Company representing the quotient of operating cash flow
divided by average gross assets, where operating cash flow and
gross assets are defined generally as follows:
Operating cash flow - the sum of (i) net income before extraordinary item,
(ii) minority interest, (iii) interest expense, net of related income tax
benefit, (iv) depreciation and amortization expense and (v) asset
impairment writedowns (e.g. special charges in fiscal 1996).
Gross assets - the sum of total assets, accumulated depreciation and
amortization, and asset impairment writedowns (until such assets are sold
or otherwise disposed of -- approximately $380 million at December 31,
1996 and $382 million at September 30, 1996) less the sum of (i) current
liabilities, net of interest-bearing indebtedness included therein, (ii)
accrued environmental and landfill costs associated with the continuing
operations of the Company (approximately $463 million at December 31,
1996) and (iii) deferred income tax liabilities.
Gross assets in the ROGA computations for the first quarter of a fiscal year are
the average of the applicable beginning and end of quarter amounts; gross assets
for a fiscal year are the average of the applicable five quarter-end amounts in
the period. The Company established a ROGA milestone for fiscal 1997 to increase
ROGA by 0.5% from fiscal 1996 to 11.9%.
Total assets decreased from $7.6 billion at September 30, 1996
to $7.5 billion at December 31, 1996. The decrease was principally
attributable to the excess of depreciation and amortization expense
over capital expenditures during the first quarter of fiscal 1997.
Gross assets of approximately $9.06 billion in the computation of
ROGA were relatively flat at December 31, 1996 compared with
September 30, 1996.
EBITDA (defined herein as income from operations plus deprec-
iation and amortization expense) was $311 million for the first
three months of fiscal 1997 as compared with $320 million for the
first three months of last year. EBITDA, which is not a measure of
financial performance under generally accepted accounting
principles, is included in this discussion because the Company
understands that such information is used by certain investors when
-16-
<PAGE> 17
analyzing the Company's financial condition and performance.
Revenues -
Revenues for the three months ended December 31, 1996, were
$1.50 billion, a 4.5% increase over the same period last year. The
following table reflects total revenues of the Company by each of
the principal lines of business (dollar amounts in thousands):
<TABLE>
<CAPTION>
Three Months Ended
---------------------- %
12/31/96 12/31/95 Change
---------- ---------- --------
<S> <C> <C> <C>
North American Operations
(including Canada) -
Collection Services -
Solid Waste $ 743,006 $ 705,964 5.2%
Transfer and Disposal -
Solid Waste
Unaffiliated customers 145,228 133,170 9.1%
Affiliated companies 131,726 123,622 6.6%
---------- ----------
276,954 256,792 7.9%
Recycling Services 133,597 133,431 0.1%
Medical Waste Services 49,927 49,628 0.6%
Services Group and Other 21,884 21,172 3.4%
Elimination of affiliated
companies' revenues (131,726) (123,622) 6.6%
---------- ----------
Total North American Operations 1,093,642 1,043,365 4.8%
International Operations 401,495 387,416 3.6%
---------- ----------
Total Company $1,495,137 $1,430,781 4.5%
========== ==========
</TABLE>
As the table below reflects, revenue growth for the three
months ended December 31, 1996, was due principally to acquisitions
and, to a lesser extent, pricing and volume.
<TABLE>
<CAPTION>
Changes in Revenue for
Three Months Ended
December 31,
-----------------------
1996 1995
---------- ----------
<S> <C> <C>
Price 1.2% (2.3)%
Volume 0.9 --
Acquisitions 3.4 11.3
Foreign currency translation (1.0) 1.7
---- ----
Total Percentage Increase 4.5% 10.7%
==== ====
</TABLE>
-17-
<PAGE> 18
As shown above, acquisitions accounted for revenue growth of
3.4% for the first three months of fiscal 1997 over the same period
of the prior year. Revenue growth due to acquisitions was
attributable to acquisitions consummated in fiscal 1996. No
significant acquisitions were closed in the first quarter of the
current year with the new emphasis on internal rather than external
growth. Revenues increased due to change in price during the first
quarter despite the decline in pricing in the North American
recycling business previously discussed. Increases in revenues due
to price were noted in the Company's collection, medical waste and
international businesses while a slight decrease was experienced in
the transfer and disposal business, principally a result of reduced
special waste volumes disposed, which generate more revenue per
unit than solid waste, while the lower priced solid waste volumes
increased compared with the first quarter of fiscal 1996. The
increases in revenue due to volume in the current quarter compared
with the same period of the prior year were driven by increases in
the North American collection, transfer and disposal and recycling
businesses.
Cost of Operations -
Cost of operations increased $63 million or 6.0% for the first
three months of fiscal 1997, compared with the same period of the
prior year. Most of the increase in cost of operations is
attributable to businesses acquired in fiscal 1996. Cost of
operations as a percent of revenues increased from 73.3% for the
three months ended December 31, 1995 to 74.3% for the three months
ended December 31, 1996. Included in cost of operations is
depreciation and amortization expense of approximately $122 million
and $120 million for the three months ended December 31, 1996 and
1995, respectively.
Selling, General and Administrative Expense -
SG&A was $220 million for the first three months of fiscal
1997, an increase of 5.5% over the same period last year. SG&A as
a percent of revenues increased slightly from 14.6% of revenues for
the three months ended December 31, 1995 to 14.7% of revenues for
the three months ended December 31, 1996. The $11.5 million
increase in SG&A was primarily related to higher costs (including
goodwill amortization) associated with the Company's acquisition
activities, and due to approximately $4.8 million of severance and
reorganization expenses associated with both the reorganization of
North American operations in June 1996 and the recent reduction of
approximately 750 employees to effect improvements in operating and
administrative efficiency. Included in SG&A for the three months
ended December 31, 1996 and 1995 was depreciation and amortization
expense of $25 million and $26 million, respectively.
Net Interest Expense -
Net interest expense increased $4.3 million or 10.4% for the
first three months of fiscal 1997 compared with the same period of
the prior year as a result of the increase in average debt
outstanding between the periods, associated principally with fiscal
-18-
<PAGE> 19
1996 capital expenditures of approximately $1.2 billion. At the
end of the first quarter of fiscal 1997, debt outstanding had
declined by $115 million from yearend fiscal 1996, largely as a
result of the limitation on capital spending during the quarter.
The Company has established a milestone for long-term debt which is
to maintain interest-bearing debt at or below the September 30,
1996 level.
Equity in Earnings of Unconsolidated Affiliates -
Equity in earnings of unconsolidated affiliates declined
between the periods primarily due to lower earnings from American
Ref-Fuel waste-to-energy operations and the loss of equity earnings
in this quarter from P&R due to the acquisition of the remaining
50% ownership interest of P&R by Otto Waste Services during the
second quarter of fiscal 1996. Included in this caption are the
earnings of unconsolidated affiliates of Otto Waste Services. The
Company consolidates Otto Waste Services' financial results, which
include equity in earnings of Otto's unconsolidated affiliates.
Minority Interest in Income of Consolidated Subsidiaries -
The decrease in minority interest in income of consolidated
subsidiaries is due to lower consolidated earnings reported by Otto
Waste Services during the current period compared with the same
period last year.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
The Company's working capital deficit of $10.7 million at
September 30, 1996, declined to a deficit of $4.9 million at
December 31, 1996. Over the long term, it continues to be the
Company's desire to maintain substantial available commitments
under bank credit agreements or other financial agreements to
finance short-term capital requirements in excess of internally
generated cash while minimizing working capital.
As discussed in Note (7) of Notes to Consolidated Financial
Statements, in July 1995, the Company issued to the public
11,499,200 7.25% Automatic Common Exchange Securities with a stated
amount of $35.625 per security. These securities are not included
on the Company's balance sheet; an increase in common stockholders'
equity will be reflected when cash proceeds totaling over $400
million are received by the Company no later than June 30, 1998.
Long-term indebtedness (including $564.7 million of Otto Waste
Services debt, which has not been guaranteed by the Company) as a
percentage of total capitalization was 51% as of December 31, 1996,
down from 52% at September 30, 1996. The ratio would have been 43%
at December 31, 1996, on a pro forma basis assuming that under the
provisions related to the Automatic Common Exchange Securities,
cash proceeds of $409.7 million were paid to the Company to
purchase common stock and such proceeds were utilized to repay
long-term debt.
-19-
<PAGE> 20
The capital appropriations budget for fiscal year 1997 was
established at $790 million in anticipation of attractive business
acquisition and development opportunities, to provide new assets to
support planned revenue growth within all consolidated businesses
and to provide for normal replacement capital needs in the
Company's core business. This is a significant reduction from the
$1.2 billion level of capital expenditures in fiscal 1996 and is
reflective of the new emphasis on internal rather than external
growth. The Company believes that its cash flows from operations
and its access to cash from banks and other external sources,
including the public markets, are more than sufficient for its
current financing needs.
As of December 31, 1996, there have been no significant
changes in balance sheet caption amounts compared with September
30, 1996, and there have been no material changes in the Company's
financial condition from that reported at September 30, 1996,
except as disclosed herein.
-20-
<PAGE> 21
PART II. - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company and certain subsidiaries are involved in various administrative
matters or litigation, including original or renewal permit application
proceedings in connection with the establishment, operation, expansion, closure
and post-closure activities of certain landfill disposal facilities,
environmental proceedings relating to governmental actions resulting from the
involvement of various subsidiaries of the Company with certain waste sites
(including Superfund sites), personal injury and other civil actions, as well
as other claims and disputes that could result in additional litigation or
other adversary proceedings.
While the final resolution of any such litigation or such other matters may
have an impact on the Company's consolidated financial results for a particular
reporting period, management believes that the ultimate disposition of such
litigation or such other matters will not have a materially adverse effect upon
the consolidated financial position of the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
4. Amended and Restated Multicurrency Revolving Credit Agreement,
dated December 27, 1996, among BFI, the Banks named therein,
and Credit Suisse.
12. Computation of Ratio of Earnings to Fixed Charges of
Browning-Ferris Industries, Inc. and Subsidiaries.
27. Financial Data Schedule.
(b) Reports on Form 8-K: None
21
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BROWNING-FERRIS INDUSTRIES, INC.
(Company)
/s/ Bruce E. Ranck
-----------------------------------------
Bruce E. Ranck
President and
Chief Executive Officer
/s/ Jeffrey E. Curtiss
-----------------------------------------
Jeffrey E. Curtiss
Senior Vice President and
Chief Financial Officer
Date: February 12, 1997
22
<PAGE> 23
INDEX TO EXHIBITS
Exhibit
No. Description
------- -----------
4. Amended and Restated Multicurrency Revolving Credit Agreement,
dated December 27, 1996, among BFI, the Banks named therein,
and Credit Suisse.
12. Computation of Ratio of Earnings to Fixed Charges of
Browning-Ferris Industries, Inc. and Subsidiaries.
27. Financial Data Schedule.
<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED MULTICURRENCY
REVOLVING CREDIT AGREEMENT
Dated as of
December 27, 1996
among
BROWNING-FERRIS INDUSTRIES, INC.,
THE BANKS NAMED HEREIN, and
CREDIT SUISSE,
as Administrative Agent
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ANDREWS & KURTH L.L.P.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND INTERPRETATION
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SECTION 1.02. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
SECTION 1.03. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
SECTION 2.02. Making the Committed Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
SECTION 2.03. Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
SECTION 2.04. Refinancings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
SECTION 2.05. Optional Conversion of Committed Loans . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
SECTION 2.06. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
SECTION 2.07. Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
SECTION 2.08. Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
SECTION 2.09. Interest on Overdue Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
SECTION 2.10. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
SECTION 2.11. Termination and Reduction of Commitments; Term-Out Date . . . . . . . . . . . . . . . . . . -30-
SECTION 2.12. Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
SECTION 2.13. Reserve Requirements; Change in Circumstances . . . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 2.14. Change in Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 2.15. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
SECTION 2.16. Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 2.17. Sharing of Setoffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 2.18. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
SECTION 2.19. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 2.20. Borrowing Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -43-
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Initial Borrowing . . . . . . . . . . . . . . . . . . . . . . . -43-
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 3.02. Conditions Precedent to the Initial Loan to each
Borrowing Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
SECTION 3.03. Conditions Precedent to Each Committed Borrowing . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 3.04. Conditions Precedent to Each Competitive Borrowing . . . . . . . . . . . . . . . . . . . . -45-
SECTION 3.05. Conditions Precedent to Conversions and Continuations . . . . . . . . . . . . . . . . . . . -46-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 4.02. Principal Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 4.03. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 4.04. Authorization and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 4.05. Non-Violation of Laws, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 4.06. Obligations Binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 4.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 4.08. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 4.09. No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 4.10. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 4.11. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 4.12. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 4.13. Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 4.14. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 4.15 Margin Stock; Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 4.16. Franchises and Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -50-
ARTICLE V
COVENANTS
SECTION 5.01. Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -50-
SECTION 5.02. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -50-
SECTION 5.03. Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -52-
SECTION 5.04. Disposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -53-
SECTION 5.05. Merger and Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 5.06. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 5.07. Financial Statements and Other Information . . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 5.08. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -55-
SECTION 5.09. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
SECTION 5.10. Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 5.11. Compliance with Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
SECTION 5.12. Notices of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
SECTION 5.13. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -57-
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -59-
SECTION 7.02. Administrative Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . -60-
SECTION 7.03. Credit Suisse and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -60-
SECTION 7.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -60-
SECTION 7.05. Administrative Agent's Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -61-
SECTION 7.06. Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -61-
SECTION 7.07. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -62-
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 8.02. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -63-
SECTION 8.03. Effect of Debtor Relief Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -64-
SECTION 8.04. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -64-
SECTION 8.05. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -65-
SECTION 8.06. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -65-
SECTION 8.07. Full Force and Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -66-
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -66-
SECTION 9.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -66-
SECTION 9.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -68-
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 9.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -68-
SECTION 9.05. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -69-
SECTION 9.06. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -70-
SECTION 9.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -71-
SECTION 9.08. Usury Not Intended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -71-
SECTION 9.09. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . -72-
SECTION 9.10. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -72-
SECTION 9.11. Successors and Assigns; Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . -72-
SECTION 9.12. Appointment of Company as Agent for the Other Borrowers . . . . . . . . . . . . . . . . . . -75-
SECTION 9.13. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -75-
SECTION 9.14. SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -76-
SECTION 9.15. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -77-
SECTION 9.16. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -77-
SECTION 9.17. Execution by BFIA, BFII and BFIE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -77-
SECTION 9.18. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -78-
SECTION 9.19. FINAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -78-
EXHIBITS
Exhibit 1.01A Form of Administrative Questionnaire
Exhibit 1.01B Form of Committed Note
Exhibit 1.01C Form of Competitive Note
Exhibit 2.02 Form of Committed Borrowing Request
Exhibit 2.03A Form of Competitive Bid Request
Exhibit 2.03B Form of Competitive Bid
Exhibit 2.20 Borrowing Subsidiary Counterpart
Exhibit 3.01A Form of Opinion of Counsel to BFI
Exhibit 3.01B Form of Opinion of Andrews & Kurth L.L.P.
Exhibit 9.11 Form of Assignment and Acceptance
SCHEDULES
Schedule I Administrative Agent's Accounts
Schedule II Borrower's Accounts
Schedule III Schedule of Principal Subsidiaries
Schedule IV Schedule of Liens
</TABLE>
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<PAGE> 6
AMENDED AND RESTATED MULTICURRENCY
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED MULTICURRENCY REVOLVING CREDIT
AGREEMENT dated as of December 27, 1996, is among:
(a) BROWNING-FERRIS INDUSTRIES, INC., a Delaware
corporation (the "Company");
(b) the Borrowing Subsidiaries, as defined below, that
become a party hereto;
(c) the banks and other financial institutions named
under the caption "Continuing Banks" on the signature pages hereof (the
"Continuing Banks");
(d) the banks and other financial institutions named
under the caption "New Banks" on the signature pages hereof (the "New Banks,"
together with the Continuing Banks and with each other Person who becomes a
Bank pursuant to Section 9.11, collectively, the "Banks"); and
(e) CREDIT SUISSE, as administrative agent for the Banks
(in such capacity together with any other Person who becomes the Administrative
Agent pursuant to Section 7.06, the "Administrative Agent").
PRELIMINARY STATEMENT
A. Pursuant to a L500,000,000 Multicurrency Revolving
Credit Agreement dated December 5, 1994 (the "1994 Agreement") among BFI
Acquisitions, PLC, a company incorporated in England and Wales (company number
2969121), ("BFIA"), BFI International, Inc., a Delaware corporation ("BFII"),
and Browning-Ferris Industries Europe, Inc., a Delaware corporation ("BFIE"), as
borrowers, the Company, as a borrower and as guarantor, the Continuing Banks
and Credit Suisse, as administrative agent for the Continuing Banks, pursuant
to which the Continuing Banks agreed to extend credit thereunder in an
aggregate principal amount not in excess of L500,000,000 which amount was
subsequently converted to U.S. $750,000,000 at any time outstanding.
B. There are no outstanding loan balances or advances
owed by the Company or any of the other borrowers under the 1994 Agreement.
The Company and the other borrowers under the 1994 Agreement have requested the
Continuing Banks to amend and restate the 1994 Agreement to, among other
things, permit the New Banks to become a party thereto, delete BFIA, BFII and
BFIE as borrowers thereunder and permit borrowings on a revolving credit basis
on and after the Effective Date and at any time and from time to time prior to
the Termination Date (each
<PAGE> 7
as herein defined) in an aggregate principal amount not in excess of the
equivalent of U.S.$750,000,000 at any time outstanding. The Company also has
requested that the Banks provide a procedure pursuant to which each Bank may,
on an uncommitted basis, bid up to the full amount of the Total Commitment (as
herein defined), regardless of such Bank's individual Commitment on borrowings
by the Borrowers thereunder. The Banks are willing to extend such credit to
the Borrowers on the terms and conditions herein set forth. Accordingly, the
Borrowers, the Administrative Agent and the Banks agree as follows:
ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND INTERPRETATION
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
"ABR Loan" means any Committed Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Agent" has the meaning specified in the
introduction to this Agreement.
"Administrative Agent's Account" means (a) in the case of
Loans denominated in U.S. Dollars or in any Primary Currency, the account of
the Administrative Agent maintained by the Administrative Agent at the location
specified opposite the currency in which such Loans are denominated on Schedule
I hereto and (b) in any such case, such other account of the Administrative
Agent as is designated in writing from time to time by the Administrative Agent
to the Borrowers and the Banks for such purpose.
"Administrative Agent's Letter" means the letter agreement
dated of even date herewith between the Company and the Administrative Agent.
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit 1.01-A hereto, which each Bank shall
complete and provide to the Administrative Agent.
"Affiliate" means, when used with respect to any Person, any
other Person which controls or is controlled by or is under common control with
such Person. As used in this definition, "control" means the possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or
ownership interests, by contract or otherwise).
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<PAGE> 8
"Agreed Maximum Rate" shall mean, for any date, the Alternate
Base Rate plus 1% per annum.
"Agreement" means this Amended and Restated Multicurrency
Revolving Credit Facility Agreement, as the same may be amended, supplemented
or modified from time to time.
"Alternate Base Rate" means, for any date, a rate per annum
(rounded upwards, if not already a whole multiple of 1/16 of 1%, to the next
higher 1/16 of 1%) equal to the higher of (a) the Prime Rate in effect on such
day and (b) the Federal Funds Effective Rate in effect for such day plus 1/2
of 1%. For purposes hereof, the term "Prime Rate" means, as of a particular
date, the prime rate most recently announced by Credit Suisse in New York, New
York as Credit Suisse's prime rate, automatically fluctuating upward and
downward with and at the time specified in each such announcement without
special notice to any Borrower or any other Person, which prime rate may not
necessarily represent the lowest or best rate actually charged to a customer.
"Federal Funds Effective Rate" means, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System of the United States arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate, as the case
may be.
"Alternate Currency" means the lawful currency of any
jurisdiction that is transferable or convertible into U.S. Dollars other than
U.S. Dollars and any Primary Currency.
"Applicable Differential" means, on any date, with respect to
a Eurodollar Committed Borrowing, 19/100 of 1% per annum until the Termination
Date, and thereafter until the Maturity Date, 25/100 of 1%.
"Applicable Fee Percentage" means, on any date, with respect
to the Total Commitment, 6/100 of 1% per annum.
"Applicable Laws" means the law in effect from time to time
and applicable to this Agreement and the transaction evidenced by, and arising
in connection with, this Agreement which lawfully permits the charging and
collection of the highest permissible lawful, nonusurious rate of interest on
this Agreement and the transaction evidenced by, and arising in connection
with, this
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<PAGE> 9
Agreement and the Notes, including laws of the State of Texas and, to the
extent controlling, laws of the United States of America.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of an ABR Loan and such Bank's
Eurodollar Lending Office in the case of a Eurodollar Committed Loan, and, in
the case of a Competitive Loan, the office of such Bank or any of its
Affiliates notified by such Bank to the Administrative Agent as its Applicable
Lending Office with respect to such Competitive Loan.
"Assignment and Acceptance" has the meaning specified in
Section 9.11(c).
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, as of any particular time, the present value (discounted at
the rate of interest implicit in the terms of the lease involved in such Sale
and Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for net rental payments (excluding,
however, any amounts required to be paid by such lessee, whether or not
designated as rent or additional rent, on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar charges or any
amounts required to be paid by such lessee thereunder contingent upon monetary
inflation or the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges) during the remaining term of such
lease (including any period for which such lease had been extended or may, at
the option of the lessor, be extended).
"Bankruptcy Code" means Title 11 of the United States Code or
any successor thereto.
"Banks" has the meaning specified in the Preliminary
Statement.
"BFIA" has the meaning specified in the Preliminary Statement.
"BFIE" has the meaning specified in the Preliminary Statement.
"BFII" has the meaning specified in the Preliminary Statement.
"Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Borrowers" means the Company and the Borrowing Subsidiaries.
"Borrowers' Account" means (a) in the case of a Loan
denominated in U.S. Dollars or in any Primary Currency, the account of one or
more Borrowers maintained by such Borrower(s) at the location specified for
such Borrower(s) opposite the currency in which such Loans are denominated on
Schedule II hereto and (b) in any such case, such other account of the
Borrowers
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<PAGE> 10
(or any one of them) as is agreed in writing from time to time among the
Borrowers and the Administrative Agent for such purpose.
"Borrowing" means a Loan or group of Loans of a single Type
made by the Banks (or, in the case of a Competitive Borrowing, by the Bank or
Banks whose Competitive Bids have been accepted pursuant to Section 2.03) on a
single date and as to which a single Interest Period is in effect.
"Borrowing Date" means, with respect to each Borrowing made
pursuant to Section 2.02 or Section 2.03, the Business Day upon which the
proceeds of such Borrowing are to be made available to a Borrower.
"Borrowing Subsidiaries" means any Wholly-owned Subsidiary
designated as a Borrowing Subsidiary by the Company pursuant to Section 2.20.
"Borrowing Subsidiary Counterpart" has the meaning specified
in Section 2.20.
"Business Day" means any day of the year on which banks are
not required or authorized by law to close in New York, New York, and, if the
applicable Business Day relates to any Eurodollar Loan or any Fixed Rate Loan,
on which dealings are carried on in the London interbank market and banks are
open for business in the country of issue of the currency of such Eurodollar
Loan or such Fixed Rate Loan, as the case may be.
"Code" means Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Commitment" means, with respect to each Bank, the amount set
forth beneath the name of such Bank on the signature pages hereof (or, as to
any Person who becomes a Bank after the Execution Date, on the signature page
of the Assignment and Acceptance executed by such Person), as such amount may
be permanently terminated or reduced from time to time pursuant to Section
2.11, Section 2.12(d), Section 2.13, Section 2.14 or Section 9.11, and as such
amount may be increased from time to time by assignment or assumption pursuant
to Section 2.13, Section 2.14 or Section 9.11. The Commitment of each Bank
shall automatically and permanently terminate on the Termination Date.
"Committed Borrowing" means a borrowing consisting of
concurrent Committed Loans from each of the Banks pursuant to Section 2.02
distributed ratably among the Banks in accordance with their respective
Commitments or resulting from a Conversion of an existing Committed Borrowing
pursuant to Section 2.05.
"Committed Borrowing Request" has the meaning specified in
Section 2.02.
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<PAGE> 11
"Committed Loans" means the revolving loans made by the Banks
to the Borrowers pursuant to Section 2.02. Each Committed Loan shall be a
Eurodollar Committed Loan or an ABR Loan.
"Committed Note" means, as to each Borrower, a promissory note
of such Borrower payable to the order of each Bank, in substantially the form
of Exhibit 1.01B executed and delivered as provided in Section 2.01, together
with all modifications, extensions, renewals and rearrangements thereof.
"Communications" has the meaning specified in Section 9.02.
"Company" has the meaning specified in the introduction to
this Agreement.
"Competitive Bid" means an offer by a Bank to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Bank pursuant to Section 2.03(a), (a) in the case of a Eurodollar
Competitive Loan, the Margin (which will be added to or subtracted from the
LIBO Rate) and (b) in the case of a Fixed Rate Loan, the fixed rate of
interest, in each case, offered by the Bank making such Competitive Bid.
"Competitive Bid Reduction" means, at any time, the deemed use
of each Bank's Commitment in an amount equal to such Bank's Pro Rata Share of
all outstanding Competitive Loans at such time.
"Competitive Bid Request" means a request for Competitive Bids
made pursuant to Section 2.03 in the form of Exhibit 2.03A.
"Competitive Borrowing" means a borrowing consisting of
Competitive Loan or concurrent Competitive Loans denominated in the same
currency from the Bank or Banks whose Competitive Bid as all or as a part of
such borrowing, as the case may be, has been accepted by a Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" means a loan from a Bank to a Borrower as
part of a Competitive Borrowing resulting from the competitive bidding
procedure described in Section 2.03 and refers to a Eurodollar Competitive Loan
or a Fixed Rate Loan (each of which may be in U.S. Dollars or in any Foreign
Currency).
"Competitive Note" means, as to each Borrower, a promissory
note of such Borrower payable to the order of each Bank, in substantially the
form of Exhibit 1.01C executed and delivered as provided in Section 2.03(f),
together with all modifications, extensions, renewals and rearrangements
thereof.
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<PAGE> 12
"Consolidated Net Income" means, for any period, the net
income of the Company for such period, determined on a consolidated basis in
accordance with generally accepted accounting principles applied on a
consistent basis.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all goodwill, customer lists, covenants not to compete,
trade names, trademarks, patents, copyrights, franchises, organization
expenses, formulas and processes, option rights, and other like intangibles and
(b) all current liabilities; all as reflected in the Company's most recent
consolidated balance sheet contained in the Company's financial statements most
recently delivered to the Administrative Agent pursuant to Section 5.07(a) or
(b) prior to the time as of which "Consolidated Net Tangible Assets" shall be
determined.
"Consolidated Net Worth" means, with respect to the Company,
the stockholders' equity of the Company determined in accordance with generally
accepted accounting principles applied on a consistent basis; provided,
however, the amount of any foreign currency translation adjustment shall not be
included for purposes of determining Consolidated Net Worth.
"Continuing Banks" has the meaning specified in the
introduction to this Agreement.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Committed Loans of one Type into Committed Loans of another Type
or the continuation of Committed Loans of the same Type for another Interest
Period pursuant to Section 2.05.
"Credit Suisse" means Credit Suisse.
"Date of Determination" means any Business Day upon which a
Borrower delivers a Committed Borrowing Request, a Competitive Bid Request or a
notice of Conversion pursuant to Section 2.05 to the Administrative Agent and
such other date upon which the Equivalent in U.S. Dollars of a Loan made in the
Foreign Currency is determined by the Administrative Agent.
"Debt", when used with respect to any Person, means
Indebtedness of such Person for borrowed money, including any indebtedness for
or in respect of money borrowed or raised (whether or not for a cash
consideration), by whatever means (including acceptances and deposits), or for
the deferred purchase price of assets or services (other than (a) current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and (b) any obligation in respect of such
deferred purchase price which has a remaining maturity of one year or less
although its original maturity may have exceeded one year).
"Default" means the occurrence of any event which with the
giving of notice or the passage of time or both could become an Event of
Default.
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<PAGE> 13
"Documents" has the meaning specified in Section 8.02.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" on such Bank's
signature page to this Agreement or, as to any Person who becomes a Bank after
the date hereof, on the signature page of the Assignment and Acceptance
executed by such Bank or such other office of such Bank as such Bank may
hereafter designate from time to time as its "Domestic Lending Office" by
notice to the Company and the Administrative Agent.
"Effective Date" means the date on which the conditions to
borrowing set forth in Article III are first met.
"Election" has the meaning specified in Section 2.12(d).
"Eligible Assignee" means (a) any Bank or any Affiliate of a
Bank; (b) a commercial bank organized under the laws of the United States, or
any state thereof, and having total assets in excess of $1,000,000,000; (c) a
commercial bank organized under the laws of any other country which is a member
of the OECD, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000; provided that such bank is acting through a
branch or agency located in the country in which it is organized, another
country which is also a member of the OECD or in the Cayman Islands; (d) the
central bank of any country which is a member of the OECD; and (e) any other
lender approved by the Administrative Agent and the Company (which approval
shall not be unreasonably withheld).
"Equivalent" means (a) in U.S. Dollars of any Alternate
Currency on any date of determination, the equivalent in U.S. Dollars of such
Alternate Currency determined by using the quoted spot rate at which Credit
Suisse's principal office in New York City, New York, offers to exchange U.S.
Dollars for such Alternate Currency in New York City, New York, at the opening
of business on such date and (b) in any Alternate Currency of U.S. Dollars on
any date of determination, the Equivalent in such Alternate Currency of U.S.
Dollars determined by using the quoted spot rate at which Credit Suisse's
principal office in New York City, New York, offers to exchange such Alternate
Currency for U.S. Dollars in New York City, New York, at the opening of
business on such date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D.
"Eurodollar Borrowing" means a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Committed Borrowing" means any Committed Borrowing
comprised of Eurodollar Loans.
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<PAGE> 14
"Eurodollar Committed Loan" means any Committed Loan
denominated in U.S. Dollars or in a Primary Currency bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of
Article II.
"Eurodollar Competitive Loan" means any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Lending Office" means, with respect to each Bank,
the office of such Bank or any of its Affiliates specified as its "Eurodollar
Lending Office" on such Bank's signature page to this Agreement or, as to any
Person who becomes a Bank after the date hereof, on the signature page of the
Assignment and Acceptance executed by such Bank (or, if such office is
specified, its Domestic Lending Office), or such other office of such Bank or
any of its Affiliates as such Bank may hereafter designate from time to time as
its "Eurodollar Lending Office" by notice to the Company and the Administrative
Agent.
"Eurodollar Loan" means any Eurodollar Competitive Loan or any
Eurodollar Committed Loan.
"Event of Default" means any of the events described in
Article VI.
"Execution Date" means the date of execution and delivery of
this Agreement by the parties hereto.
"Facility Fees" has the meaning specified in Section 2.06(a).
"FDIC" means the Federal Deposit Insurance Corporation of the
United States (or any successor).
"Federal Funds Effective Rate" has the meaning specified in
the definition of the term Alternate Base Rate.
"Financial Officer" means, as to any Person, its chief
financial officer, vice president-finance, principal accounting officer,
treasurer or any other financial officer acceptable to the Administrative
Agent.
"Fixed Rate Borrowing" means a Borrowing composed of Fixed
Rate Loans.
"Fixed Rate Loan" means any Competitive Loan bearing interest
at a fixed percentage rate per annum specified by the Bank making such Loan in
its Competitive Bid, which Loans shall be denominated in U.S. Dollars or in any
Foreign Currency.
"Foreign Borrower" means each Borrowing Subsidiary organized
under the laws of a jurisdiction outside of the United States that becomes a
Borrower hereunder.
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<PAGE> 15
"Foreign Currency" means any Primary Currency or any Alternate
Currency.
"Funded Debt," when used with respect to any Person on any
date, means Debt of such Person which (a) matures or is required to be paid
more than one year from the date of determination thereof or (b) matures within
one year from such date but is unconditionally renewable or extendible (by its
terms or by the terms of any instrument or agreement relating thereto) at the
option of such Person to a date more than one year from such date, or (c)
arises under a revolving credit or similar agreement which obligates the lender
or lenders to extend credit over a period of more than one year from such date.
"Guaranteed Obligations" has the meaning specified in Section
8.01.
"Guaranty" means, the guaranty of the Company contained in
Article VIII.
"Highest Lawful Rate" means, as to any Bank, at the particular
time in question, the maximum nonusurious rate of interest which, under
Applicable Law, such Bank is then permitted to charge the Borrowers on the
Loans. If the maximum rate of interest which, under Applicable Laws, the Banks
are permitted to charge the Borrowers on the Loans shall change after the date
hereof, to the extent permitted by Applicable Law, the Highest Lawful Rate
shall be automatically increased or decreased, as the case may be, as of the
effective time of such change without notice to any Borrower or any other
Person.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company, withholding for United States income taxes, United States back-up
withholding taxes and United States withholding taxes, and (b) in the case of
any Borrower (i) withholding for United Kingdom income taxes and for United
Kingdom withholding taxes, (ii) withholding for withholding taxes imposed by
the Federal Republic of Germany, (iii) withholding for withholding taxes
imposed by the Republic of France, and (iv) withholding for withholding taxes
imposed by The Kingdom of The Netherlands.
"Hostile Acquisition" means acquiring or attempting to acquire
(directly or indirectly) control of any Person if such acquisition or attempted
acquisition is or is reasonably expected to be resisted by or on behalf of such
Person or is otherwise unfriendly or hostile.
"Incurrence Time" has the meaning specified in Section 5.02.
"Indebtedness", when used with respect to any Person, means
any obligation (whether present or future, actual or contingent, secured or
unsecured, as principal or surety or otherwise) of such Person for the payment
or repayment of money which would be regarded as indebtedness in accordance
with generally accepted accounting principles.
"Interest Payment Date" means (a) with respect to any
Eurodollar Committed Loan or ABR Loan, the last day of the Interest Period
applicable thereto and, in addition, in the case of
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<PAGE> 16
a Eurodollar Committed Loan with an Interest Period of six months, the day that
would have been the Interest Payment Date for such Loan had an Interest Period
of three months been applicable to such Loan, and (b) in the case of a
Competitive Loan on the date or dates specified by the Borrower for such
Competitive Loan in the related Competitive Bid Request delivered pursuant to
Section 2.03(a)(i).
"Interest Period" means, for each Eurodollar Loan comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Loan or the date of the Conversion of any ABR Loan into any
Eurodollar Committed Loan and ending on the last day of the period selected by
the Borrower requesting such Borrowing or Conversion pursuant to the provisions
below and, thereafter, with respect to any such Eurodollar Committed Loan, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower requesting such
Borrowing or Conversion may, upon notice received by the Administrative Agent
in accordance with the applicable provisions of Section 2.02(a), 2.03(a)(i) or
2.05, as the case may be, select; provided, however, that:
(a) such Borrower may not select any Interest Period for
any Committed Loan that ends after the scheduled Maturity Date or any
Interest Period for any Competitive Loan that ends after the
Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Loans comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next succeeding
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day;
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month; and
(e) with respect to any Committed Borrowing comprised of
ABR Loans, the period commencing on the Borrowing Date of such
Borrowing and ending on the earliest of the last Business Day of (A)
the next succeeding March, June, September or December, (B) the
Maturity Date and (C) the date such Borrowing is converted into a
Borrowing of a different Type in accordance with Section 2.05 or
repaid or prepaid in accordance with Section 2.07, Section 2.12 or
Section 2.18; and
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<PAGE> 17
(f) with respect to any Competitive Borrowing:
(i) If such Competitive Borrowing is a Fixed Rate
Borrowing, the period commencing on the Borrowing Date of such
Borrowing and ending on the date specified in the Competitive
Bid in which the offer to make such Fixed Rate Borrowing was
extended; provided, however, that each such period shall have
a duration of not less than seven calendar days nor more than
180 days; provided that no such Interest Period may end after
the Termination Date; and
(ii) If such Competitive Borrowing is a Eurodollar
Borrowing, the period commencing on the Borrowing Date of such
Borrowing and ending on the numerically corresponding date (or
if there is no corresponding date, the last day ) in the
calendar month that is one, two, three or six months
thereafter, as a Borrower may elect.
Notwithstanding the foregoing, if any Interest Period would
end on a day which shall not be a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, with respect to Eurodollar
Loans only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the immediately
preceding Business Day.
"Judgment Currency" has the meaning specified in Section 9.16.
"LIBO Rate" means, for any Interest Period for each Eurodollar
Borrowing, an interest rate per annum equal to the rate determined by the
Administrative Agent at approximately 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in U.S. Dollars (as
set forth by any services selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to the
relevant Interest Period; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition, the
"LIBO Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the average (rounded upward to the nearest whole
multiple of one-sixteenth of one percent (0.0625%) per annum, if such average
is not such a multiple) of the rates per annum at which deposits in U.S.
Dollars are offered to major banks in the London interbank market in London,
England by the Reference Banks at approximately 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period for such Interest
Period.
"Lien" means, when used with respect to any Person, any
mortgage, lien, charge, pledge, security interest or encumbrance of any kind
(whether voluntary or involuntary or affirmative or negative, and whether
imposed or created by operation of law or otherwise) upon, or pledge of, any of
its property or assets, whether now owned or hereafter acquired, or any lease
intended as security, any conditional sale agreement, or other title retention
agreement.
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"Loan" means a Competitive Loan, a Committed Loan, a
Eurodollar Loan, a Fixed Rate Loan or an ABR Loan.
"Majority Banks" means, at any time, (a) the Majority
Committed Banks and (b) Banks holding at least 662/3% of the then aggregate
unpaid principal amount of the Competitive Loans.
"Majority Committed Banks" means, at any time, Banks holding
at least 662/3% of the then aggregate unpaid principal amount of the Committed
Loans or if no Committed Loans are outstanding, Banks having at least 662/3% of
the available Commitments (determined without considering the effect of any
reduction pursuant to Section 2.16).
"Margin" means, as to any Eurodollar Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the LIBO Rate
in order to determine the interest rate applicable to such Loan, as specified
in the Competitive Bid relating to such Loan.
"Material Adverse Effect" means an event or circumstance which
materially and adversely affects the business, financial position or results of
operations of the Company and its Subsidiaries on a consolidated basis or the
ability of any Borrower to perform its obligations under this Agreement or the
Notes.
"Maturity Date" means the Termination Date or, as to any
Committed Borrowing that is outstanding on the Termination Date, the first
anniversary of the Termination Date.
"New Banks" has the meaning specified in the introduction to
this Agreement.
"1994 Agreement" has the meaning specified in the Preliminary
Statement.
"Notice of Acquisition" has the meaning specified in Section
2.12(d).
"Notice of Election" has the meaning specified in Section
2.12(d).
"Note" means a Competitive Note or a Committed Note.
"OECD" means the Organization for Economic Cooperation and
Development (or any successor).
"Operating Rights" has the meaning specified in Section 4.16.
"Other Taxes" has the meaning specified in Section 2.19.
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"Payment Office" means, with respect to any Competitive
Borrowing comprised of any Alternate Currency, such office of Credit Suisse as
shall from time to time be selected by the Administrative Agent and designated
by the Administrative Agent in writing to the Borrowers and the Banks for such
purpose.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a foreign state or political
subdivision thereof or any agency of such state or subdivision.
"Plan" means any employee pension benefit plan maintained or
contributed to by the Company or any of its Subsidiaries or by any trade or
business (whether or not incorporated) under common control (as defined in
Section 4001(b) of ERISA) with the Company and insured by the PBGC under Title
IV of ERISA.
"Primary Currencies" means, collectively, the lawful currency
of the United Kingdom of Great Britain and Northern Ireland, the lawful
currency of the Federal Republic of Germany, the lawful currency of the
Republic of France and the lawful currency of The Kingdom of the Netherlands.
"Prime Rate" has the meaning specified in the definition of
the term "Alternate Base Rate".
"Principal Property" means any waste processing, waste
disposal or resource recovery plant or similar facility located within the
United States of America (excluding its territories and possessions and Puerto
Rico) and owned by, or leased to, the Company or any Restricted Subsidiary,
except (a) any such plant or facility (i) owned or leased jointly or in common
with one or more persons other than the Company and its Subsidiaries, in which
the interest of the Company and its Restricted Subsidiaries does not exceed 50%
or (ii) which the board of directors of the Company determines in good faith is
not of material importance to the total business conducted, or assets owned, by
the Company and its Subsidiaries as an entirety, or (b) any portion of any such
plant or facility which the board of directors of the Company determines in
good faith not to be of material importance to the use or operation thereof.
"Principal Subsidiary" means a Subsidiary (a) whose total
assets or gross revenues (each such amount expressed on a combined basis before
eliminations and adjustments in the case of a Subsidiary or a Subsidiary which
itself has Subsidiaries) represent, respectively, not less than 1.75% of either
the consolidated total assets or consolidated gross revenues of the Company and
its Subsidiaries all as calculated annually by reference to the then latest
fiscal year end financial data (consolidated or unconsolidated, as the case may
be) of such Subsidiary and the then latest fiscal year end audited consolidated
financial statements of the Company, or (b) to which is transferred all
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<PAGE> 20
or substantially all of the assets or undertakings of a Principal Subsidiary.
Notwithstanding the foregoing, the term "Principal Subsidiary" shall not
include any Subsidiary of a Principal Subsidiary regardless of whether such
Subsidiary would otherwise be a Principal Subsidiary. A certificate signed by
a Financial Officer of the Company as to whether a Subsidiary is or is not or
was or was not a Principal Subsidiary at a specified date shall, in the absence
of manifest error, be conclusive and binding.
"Pro Rata Share" of any amount means, with respect to any Bank
at any time, the product of (a) a fraction, the numerator of which is the
amount of such Bank's Commitment at such time and the denominator of which is
the Total Commitment at such time and (b) such amount.
"Reference Banks" means Credit Suisse, Texas Commerce Bank
National Association and Bank of America Illinois or, in the event that any one
of such banks ceases to be a Bank hereunder at any time, any other commercial
bank designated by the Company and the Administrative Agent to replace such
Reference Bank hereunder as constituting a "Reference Bank" hereunder.
"Register" has the meaning specified in Section 9.11(e).
"Regulation A" means Regulation A of the Board, as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation D" means Regulation D of the Board as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation G" means Regulation G of the Board as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation T" means Regulation T of the Board as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation U" means Regulation U of the Board as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Regulation X" means Regulation X of the Board as the same is
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Reserve Percentage" of any Bank for the Interest Period for
any Eurodollar Loan, means the reserve percentage applicable during such
Interest Period under regulations issued from time to time by the Board (or if
more than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) for determining the maximum reserve
requirement (including any marginal
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reserve requirement for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period).
"Restricted Subsidiary" means any Subsidiary, substantially
all of the property of which is located, or substantially all of the business
of which is carried on, within the United States of America (excluding its
territories and possessions and Puerto Rico).
"Sale and Leaseback Transaction" has the meaning attributed to
it in Section 5.03.
"Stated Rate" has the meaning attributed to it in Section
9.08.
"Sterling" means the lawful money of the United Kingdom of
Great Britain and Northern Ireland.
"Subsidiary" means, with respect to any Person, any
corporation in which more than 50% of the stock of each class having ordinary
voting power shall, at the time as of which any determination is being made, be
owned of record and beneficially by such Person directly and/or through one or
more other Subsidiaries.
"Taxes" has the meaning specified in Section 2.19.
"Term-Out Date" has the meaning specified in Section 2.11(b).
"Termination Date" means the earlier to occur of (i) December
26, 1997 and (ii) the termination in whole of the Total Commitment pursuant to
Section 2.11 or Section 6.01.
"Termination Notice" has the meaning specified in Section
2.11(b).
"Total Commitment" means at any time the aggregate amount of
the Banks' Commitments, as in effect at such time.
"Type" means, when used in respect to any Loan or Borrowing,
each of the following types of Loans or Borrowings as applicable: Eurodollar
Loan or Eurodollar Borrowing, ABR Loan or ABR Borrowing and Fixed Rate Loan or
Fixed Rate Borrowing.
"United States" and "U.S." each means United States of
America.
"Unused Commitment" means, with respect to any Bank at any
time, (a) such Bank's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Committed Loans
made by such Bank (in its capacity as a Bank) and outstanding at such time; and
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(ii) such Bank's Pro Rata Share of the aggregate principal
amount of Competitive Loans made by the Banks and outstanding at such time.
"U.S. Dollars" and the "$" sign each means the lawful currency
of the United States of America.
"Wholly-owned Subsidiary" means as to the Company, a
Subsidiary, 100% of the stock of every class of which at the time as of which
any determination is made, is owned of record and beneficially by the Company
directly or indirectly through one or more other Subsidiaries of the Company.
SECTION 1.02. Accounting Terms. All accounting terms not
otherwise defined shall be construed in accordance with generally accepted
accounting principles as in effect from time to time as set forth in the
opinions, statements and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants, the Financial
Accounting Standards Board and such other Persons who shall be approved by a
significant segment of the accounting profession and concurred on by the
independent certified public accountants certifying any audited financial
statements of the Company.
SECTION 1.03. Interpretation. (a) In this Agreement, unless
a clear contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to either gender includes the other gender;
(iii) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Agreement, and reference to a Person in
a particular capacity excludes such Person in any other capacity or
individually, provided that nothing in this clause (iv) is intended to
authorize any assignment not otherwise permitted by this Agreement;
(v) reference to any agreement, document or instrument
including this Agreement means such agreement, document or instrument
as amended, supplemented or modified and in effect from time to time
in accordance with the terms thereof and, if applicable, the terms
hereof, and reference to any Note or any other note includes any note
issued pursuant hereto, in extension or renewal thereof and in
substitution or replacement therefor;
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<PAGE> 23
(vi) unless the context indicates otherwise, reference to
any Article, Section, Schedule or Exhibit means such Article or
Section hereof or such Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any
description preceding such term;
(viii) with respect to the determination of any period of
time, the word "from" means "from and including" and the word "to"
means "to but excluding"; and
(ix) reference to any law, rule, regulation or
interpretation means such law, rule, regulation or interpretation as
amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time.
(b) The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
(c) No provision of this Agreement shall be interpreted
or construed against any Person solely because that Person or its legal
representative drafted such provision.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set
forth, each Bank agrees, severally and not jointly, to make Committed Loans to
any Borrower, at any time and from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate
principal amount for each such Committed Loan (determined in the case of any
Committed Loan denominated in a Primary Currency by reference to the Equivalent
thereof in U.S. Dollars on such Date of Determination) not to exceed such
Bank's Unused Commitment on such Date of Determination. Each Committed
Borrowing shall be in an aggregate amount of not less than $25,000,000 (or the
Equivalent thereof in the Primary Currency in which such Committed Borrowing is
denominated) and in the case of any Committed Borrowing in U.S. Dollars shall
be an integral multiple of U.S. $5,000,000, (or, in either event, if less, an
aggregate amount equal to the amount by which the aggregate amount of a
proposed Competitive Borrowing requested by any Borrower exceeds the aggregate
amount of Competitive Loans offered to be made by the Banks and accepted by
such Borrower in respect of such Competitive Borrowing, if such Competitive
Borrowing is made on the same date as such Committed Borrowing) and shall
consist of Committed Loans of the same Type and in the same currency made on
the same day by the Banks according to their respective Pro Rata Shares of such
Committed Borrowing. Within the limits of each Bank's Unused Commitment, any
Borrower may borrow under Section 2.02(a), prepay pursuant to Section 2.12 and
reborrow under Section 2.02(a). Each Bank's Commitment, as in effect on the
Execution Date, is set forth opposite
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<PAGE> 24
its name on the signature page hereto for such Bank. Such Commitments may be
terminated or reduced from time to time pursuant to Section 2.11 and Section
2.12(d), Section 2.13, Section 2.14 or Section 9.11.
(b) The Committed Loans made by each Bank to a Borrower
shall be evidenced by a single Committed Note duly executed on behalf of such
Borrower, dated (i) in the case of the Company, the Execution Date, (ii) in the
case of any other Borrower, the date such Borrower becomes a party to this
Agreement or (iii) in any case, such later date on which the holder of such
Note becomes a party to this Agreement pursuant to Section 9.11, with the
blanks appropriately completed, payable to the order of such Bank in a
principal amount equal to the Commitment of such Bank.
SECTION 2.02. Making the Committed Loans. (a) Each Committed
Borrowing shall be made on notice, given not later than 12:00 noon (New York
City time) on the third Business Day prior to the date of the proposed
Committed Borrowing in the case of a Committed Borrowing comprised of
Eurodollar Loans denominated in U.S. Dollars or the fourth Business Day prior
to the date of the proposed Committed Borrowing in the case of a Committed
Borrowing comprised of Eurodollar Loans denominated in a Primary Currency, or
not later than 11:00 a.m. (New York City time) on the same Business Day as the
date of the proposed Committed Borrowing in the case of a Committed Borrowing
comprised of ABR Loans, by any Borrower to the Administrative Agent, which
shall give each Bank prompt notice thereof by telecopier or telex. Each such
notice of a Committed Borrowing (a "Committed Borrowing Request") shall be by
telephone, confirmed immediately in writing, or by telecopier, in substantially
the form of Exhibit 2.02 hereto, specifying therein (i) the Borrowing Date of
such proposed Committed Borrowing, (ii) the requested Type of Committed Loans
comprising such proposed Committed Borrowing, (iii) the requested aggregate
principal amount of such Committed Borrowing, and (iv) in the case of a
Committed Borrowing consisting of Eurodollar Committed Loans, the requested
initial Interest Period and currency for such Committed Loan. Each Bank shall,
before 1:00 p.m. (New York City time) on the date of such Committed Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the applicable Administrative Agent's Account, in same
day funds, such Bank's Pro Rata Share of such Committed Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent, will,
not later than 3:00 p.m. (New York City time) on the date of such Committed
Borrowing, make such funds available to the Borrower requesting such Committed
Borrowing at the applicable Borrower's Account or at such other address and
account number of such Borrower as is reasonably acceptable to the
Administrative Agent and as such Borrower shall have specified in the related
Committed Borrowing Request. If no election as to the Type of Committed
Borrowing is specified in any such notice, then the requested Committed
Borrowing shall be (i) an ABR Borrowing if the Committed Borrowing is
denominated in U.S. Dollars or (ii) a Eurodollar Borrowing with an Interest
Period of one month, if the Committed Borrowing is denominated in a Primary
Currency. If no Interest Period with respect to any Eurodollar Committed
Borrowing is specified in any such Committed Borrowing Request, then such
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If a Borrower shall not have
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given notice in accordance with this Section 2.02 of its election to refinance
a Committed Borrowing prior to the end of the Interest Period in effect for
such Borrowing, then (unless such Borrowing is repaid at the end of such
Interest Period) such Borrower shall be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing, unless such
Borrowing is comprised of Loans made in a Primary Currency, in which event such
Borrower shall be deemed to have given notice of an election to refinance such
Borrowing with a Eurodollar Borrowing with an Interest Period of one month.
The Administrative Agent shall promptly advise the Banks of any Committed
Borrowing Request given pursuant to this Section 2.02 and of each Bank's
portion of the requested Committed Borrowing by telecopier.
(b) Each Committed Borrowing Request shall be irrevocable
and binding on the Borrower that requested such Borrowing. In the case of any
Committed Borrowing that the related Committed Borrowing Request specifies is
to be comprised of Eurodollar Loans, the Borrower that requested such Borrowing
shall indemnify each Bank against any loss, cost or expense incurred by such
Bank as a result of any failure to fulfill on or before the date specified in
the Committed Borrowing Request for such Committed Borrowing the applicable
conditions set forth in Article III, including any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Committed Loan to be made as part of such Committed Borrowing when such
Committed Loan, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received
notice from a Bank prior to the date of any Committed Borrowing comprised of
Eurodollar Loans, or prior to 12:45 p.m. (New York City time) on the date of
any Committed Borrowing comprised of ABR Loans, that such Bank will not make
available to the Administrative Agent such Bank's Pro Rata Share of such
Committed Borrowing, the Administrative Agent may assume that such Bank has
made such Pro Rata Share available to the Administrative Agent on the date of
such Committed Borrowing in accordance with Section 2.02(a) and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower requesting such Committed Borrowing on such date a corresponding
amount. If and to the extent that such Bank shall not have so made its Pro
Rata Share available to the Administrative Agent, such Bank and such Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
amount, and to pay interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to, or
repurchased from, the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to the Committed Loans
comprising such Committed Borrowing, and (ii) in the case of such Bank, the
higher of (A) the Federal Funds Effective Rate and (B) the cost of funds
incurred by the Administrative Agent in respect to such amount. If such Bank
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Committed Loan as part of such Committed
Borrowing for all purposes of this Agreement.
(d) The failure of any Bank to make the Committed Loan to
be made by it as part of any Committed Borrowing shall not relieve any other
Bank of its obligation, if any, hereunder to make its Committed Loan on the
date of such Committed Borrowing, but no Bank shall be
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responsible for the failure of any other Bank to make the Committed Loan to be
made by such other Bank on the date of any Committed Borrowing.
SECTION 2.03. Competitive Bid Loans. (a) Each Bank severally
agrees that any Borrower may make Competitive Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the then scheduled Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Borrowing, the aggregate principal amount of all Loans outstanding
at such time shall not exceed the Total Commitment at such time (computed
without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive
Borrowing under this Section 2.03 by delivering to the Administrative
Agent, by telecopier or hand delivery, a notice of a Competitive
Borrowing (a "Competitive Bid Request"), in substantially the form of
Exhibit 2.03(A) hereto, specifying therein (A) the requested date of
such proposed Competitive Borrowing (which shall be a Business Day),
(B) the requested aggregate amount of such proposed Competitive
Borrowing, (C) whether such proposed Competitive Borrowing shall
consist of Fixed Rate Loans or Eurodollar Loans, (D) the requested
currency of such proposed Competitive Borrowing, (E) in the case of a
Competitive Borrowing consisting of (1) Eurodollar Loans, the
requested Interest Period for each such Eurodollar Loan, and (2) Fixed
Rate Loans, the requested maturity date for repayment of each such
Fixed Rate Loan (which maturity date may not be earlier than the date
occurring seven days after the date of such proposed Competitive
Borrowing or later than the earlier of (x) 180 days after the date of
such proposed Competitive Borrowing and (y) the Termination Date), (F)
the requested interest payment date or dates for each Competitive Loan
comprising part of such proposed Competitive Borrowing, (G) whether or
not the Competitive Loans comprising such proposed Competitive
Borrowing may be prepaid and, if so, whether with or without penalty,
(H) the address and account number of such Borrower to which the
proceeds of such proposed Competitive Borrowing are to be advanced and
(I) the requested other terms, if any, to be applicable to such
proposed Competitive Borrowing, not later than 10:00 a.m. (New York
City time) (1) at least one Business Day prior to the date of the
proposed Competitive Borrowing, if such Borrower shall specify in the
related Competitive Bid Request that the Competitive Loans to be
offered by the Bank are to be Fixed Rate Loans and that the Fixed Rate
Loans comprising such proposed Competitive Borrowing shall be
denominated in U.S. Dollars, (2) at least three Business Days prior
to the date of the proposed Competitive Borrowing, if such Borrower
shall specify in the related Competitive Bid Request that the Loans
comprising such proposed Competitive Borrowing shall be Fixed Rate
Loans denominated in a Primary Currency and (3) at least four Business
Days prior to the date of the proposed Competitive Borrowing if such
Borrower shall specify in the related Competitive Bid Request that the
Loans comprising such proposed Competitive Borrowing shall be Fixed
Rate Loans denominated in an Alternate Currency or are to be
Eurodollar Loans; provided, however, that the Borrowers may not
request more than one Competitive Borrowing on any Business Day. Each
Competitive Bid Request shall be irrevocable and
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binding on the Borrower that requested such Competitive Borrowing.
The Administrative Agent shall in turn promptly notify each Bank of
each Competitive Bid Request received by it from any Borrower. A
Competitive Bid Request that does not conform substantially to the
format of Exhibit 2.03(A) may be rejected at the Administrative
Agent's sole discretion, and the Administrative Agent shall promptly
notify the Borrower.
(ii) Each Bank may, if, in its sole discretion, it
elects to do so, irrevocably offer by telecopier in the form of
Exhibit 2.03(B) to make one or more Competitive Bid Loans to the
Borrower requesting the Competitive Loans as part of such proposed
Competitive Borrowing at a rate or rates of interest specified by such
Bank in its sole discretion, by notifying the Administrative Agent
(which shall give prompt notice thereof to the Borrower requesting the
Competitive Borrowing), before 10:00 a.m. (New York City time) (A) on
the same Business Day as the date of such proposed Competitive
Borrowing, in the case of a Competitive Borrowing consisting of Fixed
Rate Loans denominated in U.S. Dollars, (B) two Business Days prior to
the date of the proposed Competitive Borrowing, in the case of a
Competitive Borrowing consisting of Fixed Rate Loans denominated in a
Primary Currency, and (C) three Business Days prior to the date of the
proposed Competitive Borrowing, in the case of a Competitive Borrowing
consisting of Eurodollar Loans or Fixed Rate Loans denominated in an
Alternate Currency, the minimum amount and maximum amount of each
Competitive Loan that such Bank would be willing to make as part of
such proposed Competitive Borrowing (which amounts may, subject to the
proviso of the first sentence of this Section 2.03(a), exceed such
Bank's Commitment, if any), the rate or rates of interest therefor in
the case of any such Fixed Rate Loans and the Margin in the case of
any such Eurodollar Loans and such Bank's Applicable Lending Office
with respect to such Competitive Loan; provided that if the
Administrative Agent, in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
requesting such Competitive Borrowing of such offer at least 15
minutes before the time and on the date of which notice of such
election is to be given to the Administrative Agent by the other
Banks.
(iii) The Borrower requesting any particular
Competitive Borrowing shall, in turn, before (A) 11:00 a.m. (New York
City time) on the same Business Day as the date of such proposed
Competitive Borrowing, in the case of a Competitive Borrowing
consisting of Fixed Rate Loans denominated in U.S. Dollars, (B) 12:00
noon (New York City time) two Business Days prior to the date of such
proposed Competitive Borrowing, in the case of a Competitive Borrowing
consisting of Fixed Rate Loans denominated in a Primary Currency, and
(C) 12:00 noon (New York City time) three Business Days prior to the
date of the proposed Competitive Borrowing, in the case of a
Competitive Borrowing consisting of Eurodollar Loans or Fixed Rate
Loans denominated in an Alternate Currency, either:
(1) cancel such Competitive Borrowing by
giving the Administrative Agent notice to that effect; or
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(2) accept one or more of the
offers made by any Bank or Banks pursuant to Section
2.03(a)(ii), in its sole discretion but subject to the next
two succeeding sentences, by giving notice to the
Administrative Agent of the amount of each Competitive Loan
(which amount shall be equal to or greater than the minimum
amount and equal to or less than the maximum amount, notified
to such Borrower by the Administrative Agent on behalf of such
Bank for such Competitive Loan pursuant to Section
2.03(a)(ii)) to be made by each Bank as part of such
Competitive Borrowing, and reject any remaining offers made by
Banks pursuant to Section 2.03(a)(ii) by giving the
Administrative Agent notice to that effect; provided, however,
that such Borrower may not accept offers that, in the
aggregate, exceed the amount of the proposed Competitive
Borrowing specified in the related Competitive Bid Request.
The Borrower that requested such Competitive Borrowing shall
accept the offers made by any Bank or Banks to make
Competitive Loans in order of the lowest to the highest rates
of interest offered by such Banks for a particular Competitive
Borrowing. If two or more Banks have offered the same interest
rate for a particular Competitive Borrowing, the amount to be
borrowed at such interest rate will be allocated among such
Banks ratably according to the amount that each such Bank
offered at such interest rate.
(iv) If the Borrower that requested any particular
Competitive Borrowing notifies the Administrative Agent that such
Competitive Borrowing is canceled pursuant to Section 2.03(a)(iii)(1),
the Administrative Agent shall give prompt notice thereof to each of
the Banks and such Competitive Borrowing shall not be made.
(v) If the Borrower that requested any particular
Competitive Borrowing accepts one or more of the offers made by any
Bank or Banks pursuant to Section 2.03(a)(iii)(2) in respect of such
Competitive Borrowing, the Administrative Agent shall in turn promptly
notify (A) each Bank that has made an offer as described in Section
2.03(a)(ii) of the date and the aggregate amount of such Competitive
Borrowing and whether or not any offer or offers made by such Bank
pursuant to Section 2.03(a)(ii) have been accepted by such Borrower
and (B) each Bank that is to make a Competitive Loan as part of such
Competitive Borrowing, (1) of the amount of each Competitive Loan to
be made by such Bank as part of such Competitive Borrowing and (2)
upon receipt, that the Administrative Agent has received forms of
documents appearing to fulfill the applicable conditions set forth in
Article III. Each Bank that is to make a Competitive Loan as part of
any Competitive Borrowing shall, before 1:00 p.m. (New York City time)
on the date of such Competitive Borrowing specified in the notice
received from the Administrative Agent pursuant to subclause (v)(A) of
the immediately preceding sentence or any later time when such Bank
shall have received notice from the Administrative Agent pursuant to
subclause (v)(B)(2) of the immediately preceding sentence, make
available for the account of its Applicable Lending Office to the
Administrative Agent at (x) in the case of a Competitive Borrowing
denominated in U.S. Dollars or in a Primary Currency, the applicable
Administrative Agent's Accounts, in same day funds, such Bank's
portion of such Competitive Borrowing in U.S. Dollars or in such
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Primary Currency, as the case may be, and (y) in the case of a
Competitive Borrowing denominated in an Alternate Currency, at the
Payment Office for such Alternate Currency (as shall have been
notified by the Administrative Agent to the Banks prior thereto), in
same day funds, such Bank's portion of such Competitive Borrowing in
such Alternate Currency. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower that requested such Borrowing at
the address and the account number specified by such Borrower in the
related Competitive Bid Request or, if no such address and account
number are specified in the related Competitive Bid Request, at the
applicable Administrative Agent's Account or the applicable Payment
Office, as the case may be. Promptly after (1) each Competitive
Borrowing, the Administrative Agent will notify each Bank of the
amount of such Competitive Borrowing, the corresponding Competitive
Bid Reduction resulting therefrom and the dates upon which such
Competitive Bid Reduction commenced and will terminate and (2) the
prepayment of any Competitive Borrowing by the applicable Borrower,
the Administrative Agent will notify each Bank of the amount and date
of each such prepayment and the amount, if any, of the corresponding
Competitive Bid Reduction remaining after giving effect thereto.
(vi) If the Borrower that requested any particular
Competitive Borrowing notifies the Administrative Agent that it
accepts one or more of the offers made by any Bank or Banks pursuant
to Section 2.03(a)(iii)(2), such notice of acceptance shall be
irrevocable and binding on such Borrower. Such Borrower shall
indemnify each Bank against any loss, cost or expense incurred by such
Bank as a result of any failure to fulfill on or before the date
specified in the Competitive Bid Request for such Competitive
Borrowing the applicable conditions set forth in Article III,
including any loss (excluding any loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Competitive
Loan to be made by such Bank as part of such Competitive Borrowing
when such Competitive Loan, as a result of such failure, is not made
on such date.
(b) Subject to clause (2) of Section 2.03(a)(iii) above,
each Competitive Loan shall be in an aggregate amount of not less than U.S.
$25,000,000 and shall be part of a Competitive Borrowing in a minimum principal
amount of U.S. $25,000,000 (or the Equivalent thereof in such Foreign Currency)
and, following the making of each Competitive Borrowing, the Borrowers shall be
in compliance with the limitation set forth in the proviso to the first
sentence of Section 2.03(a); provided, however, that if a Competitive Loan must
be in an amount less than $25,000,000 because of the provisions of clause (2)
of Section 2.03(a)(iii) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances or portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (2)of Section 2.03(a)(iii)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
which shall be in the discretion of the Company. A notice given by a Borrower
pursuant to this Section 2.03(b) shall be irrevocable.
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(c) Within the limits and on the conditions set forth in
this Section 2.03, any Borrower may from time to time borrow under Section
2.03(a), repay pursuant to Section 2.07(a) or prepay pursuant to Section
2.03(d), and reborrow under Section 2.03(a).
(d) The Borrower to which any particular Competitive
Borrowing is made shall have no right to prepay the principal amount of any
Competitive Loan (or any portion thereof) unless, and then only on the terms,
specified by such Borrower for such Competitive Loan in the related Competitive
Bid Request delivered pursuant to Section 2.03(a)(i).
(e) The Borrower to which any particular Competitive
Borrowing is made shall pay interest on the unpaid principal amount of each
Competitive Loan from the date of such Competitive Loan to the date the
principal amount of such Competitive Loan is repaid in full, at the rate of
interest for and in the currency of such Competitive Loan specified by the Bank
making such Competitive Loan in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or dates
specified by such Borrower for such Competitive Loan in the related Competitive
Bid Request delivered pursuant to Section 2.03(a)(i).
(f) The Competitive Loans made by each Bank to a Borrower
shall be evidenced by a single Competitive Note duly executed on behalf of such
Borrower, dated (i) in the case of the Company, the Execution Date, (ii) in the
case of any other Borrower, the date such Borrower becomes a party to this
Agreement or (iii) in any case, such later date on which the holder of such
Note becomes a party to this Agreement pursuant to Section 9.11, with the
blanks appropriately completed, payable to the order of such Bank in a
principal amount equal to the Total Commitment.
SECTION 2.04. Refinancings. Each Borrower may refinance all
or any part of any Borrowing with a Borrowing of the same or a different Type
made pursuant to Section 2.02 or Section 2.03, subject to the conditions and
limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Committed Borrowings and Committed
Borrowings with Competitive Borrowings. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.07 with
the proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Banks to the
Administrative Agent or by the Administrative Agent to the Company pursuant to
Section 2.02(c); provided, however, that (a) if the principal amount extended
by a Bank in a refinancing is greater than the principal amount extended by
such Bank in the Borrowing being refinanced, then such Bank shall pay such
difference to the Administrative Agent for distribution to the Banks described
in (b) below, (b) if the principal amount extended by a Bank in the Borrowing
being refinanced is greater than the principal amount being extended by such
Bank in the refinancing, the Administrative Agent shall return the difference
to such Bank out of amounts received pursuant to (a) above, (c) to the extent
any Bank fails to pay the Administrative Agent amounts due from it pursuant to
(a) above, any Borrowing or portion thereof being refinanced shall not be
deemed repaid in accordance with Section 2.07 to the extent of such failure and
such Borrower shall pay such amount to the Administrative Agent pursuant to
Section 2.07 and (d) to the extent the Company fails to pay to the
Administrative
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Agent any amounts due in accordance with Section 2.07 as a result of the
failure of a Bank to pay the Administrative Agent any amounts due as described
in (c) above, the portion of any refinanced Borrowing deemed not repaid shall
be deemed to be outstanding solely to the Bank which has failed to pay the
Administrative Agent amounts due from it pursuant to (a) above to the full
extent of such Bank's portion of such refinanced Loan.
SECTION 2.05. Optional Conversion of Committed Loans. Each
Borrower may on any Business Day on which no Default or Event of Default has
occurred and is continuing, upon notice given to the Administrative Agent not
later than 12:00 noon (New York City time) on the third Business Day prior to
the date of the proposed Conversion in the case of a Conversion of ABR Loans
into Eurodollar Committed Loans denominated in U.S. Dollars or of Eurodollar
Committed Loans denominated in U.S. Dollars of one Interest Period into
Eurodollar Committed Loans denominated in U.S. Dollars and of another Interest
Period, or the fourth Business Day prior to the date of the proposed Conversion
in the case of a Conversion of ABR Loans or Eurodollar Loans denominated in
U.S. Dollars into Eurodollar Committed Loans denominated in a Primary Currency
or of Eurodollar Committed Loans denominated in a Primary Currency of one
Interest Period into Eurodollar Committed Loans denominated in the same Primary
Currency and of another Interest Period or not later than 11:00 a.m. (New York
City time) on the same Business Day as the date of the proposed Conversion in
the case of a Conversion of Eurodollar Committed Loans into ABR Loans, and, in
any case, subject to the provisions of this Section 2.05 and Sections 2.08, and
2.09, Convert all Loans comprising one or more Committed Borrowings into one or
more Borrowings comprised of Committed Loans so long as, after giving effect to
any such Conversion, each Committed Borrowing resulting from such Conversion is
comprised of Committed Loans denominated in the same currency and, in the case
of each Committed Borrowing comprised of Eurodollar Committed Loans, having the
same Interest Period; provided, however, that:
(a) No Conversion of Committed Loans shall result in (i)
any Committed Borrowing failing to comply with the second sentence of
Section 2.01 or (ii) the aggregate principal amount of all outstanding
Loans at the time of such Conversion exceeding the Total Commitment;
and
(b) In the case of any Conversion of Eurodollar Committed
Loans of one Interest Period into Eurodollar Committed Loans of
another Interest Period or of Eurodollar Loans into ABR Loans other
than on the last day of an Interest Period therefor, the Borrower
requesting such Conversion shall be obligated to reimburse the Banks
in respect thereof pursuant to Section 9.04.
Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion (which shall be a Business Day),
(ii) the Committed Loan to be Converted and (iii) if such Conversion is into
Eurodollar Loans, the currency of and the duration of the initial Interest
Period for such Loan. Each notice of Conversion shall be irrevocable and
binding on the Borrower requesting such Conversion.
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SECTION 2.06. Fees. (a) The Company agrees to pay to each
Bank, through the Administrative Agent, on the last Business Day of each March,
June, September and December from the Execution Date to the date on which the
Commitment of such Bank has been terminated and (ii) on the Termination Date
and on any other date on which the Commitment of such Bank has been terminated,
facility fees (such facility fees being the "Facility Fees"), in immediately
available funds, equal to the Applicable Fee Percentage of the amount of the
Commitment of such Bank, whether used, deemed used or unused, during the
preceding quarter (or shorter period commencing with the Execution Date and/or
ending with the Termination Date). The Facility Fees due to each Bank shall
commence to accrue on the Execution Date and shall cease to accrue on the
earlier of the Termination Date and the termination of the Commitment of such
Bank as provided herein.
(b) The Company agrees to pay to the Administrative Agent
administration fees and auction fees as provided in the Administrative Agent's
Letter.
(c) The Facility Fees due under this Section 2.06 shall
be paid on the date due, in immediately available funds, to the Administrative
Agent for distribution among the Banks. The fees due under Section 2.06(b)
shall be paid pursuant to the Administrative Agent's Letter.
(d) Notwithstanding the foregoing, in no event shall any
Bank be permitted to receive any compensation hereunder constituting interest
in excess of the Highest Lawful Rate.
SECTION 2.07. Repayment of Loans. (a) Each Borrower agrees
to pay the outstanding principal balance of each of its Loans (i) in the case
of a Competitive Loan, on the day(s) agreed upon with the Bank(s) making such
Loans and, in any case, on the Termination Date, and (ii) in the case of a
Committed Loan, on the Maturity Date. Each Loan shall bear interest from the
date of the Borrowing of which such Loan is a part on the outstanding principal
balance thereof as set forth in Section 2.08.
(b) Each Bank shall, and is hereby authorized by each
Borrower to, endorse on the schedule attached to the relevant Note of such
Borrower held by such Bank (or on a continuation of such schedule attached to
each such Note and made a part thereof) or in its internal records relating to
such Note an appropriate notation evidencing the date and amount of each
Competitive Loan or Committed Loan of such Bank to such Borrower, each payment
or prepayment of principal of any Competitive Loan or Committed Loan and the
other information provided for on such schedule. The aggregate unpaid
principal amount so recorded shall be presumptive evidence of the principal
amount owing by such Borrower to a Bank and unpaid under each such Note of such
Bank. The failure of any Bank to make such a notation or any error therein
shall not in any manner affect the obligation of such Borrower to repay the
Competitive Loans or Committed Loans made by such Bank in accordance with the
terms of the relevant Note.
SECTION 2.08. Interest on Loans. (a) Subject to the
provisions of Section 2.08(d) and Section 2.09, the Loans comprising each
Eurodollar Borrowing shall bear interest at a rate per annum equal to (i) in
the case of each Eurodollar Committed Loan, the lesser of (A) the LIBO Rate
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for the Interest Period in effect for such Borrowing plus the Applicable
Differential from time to time in effect and (B) the Highest Lawful Rate, and
(ii) in the case of each Eurodollar Competitive Loan, the lesser of (A) the
LIBO Rate for the Interest Period in effect for such Borrowing plus the Margin
offered by the Bank making such Loan and accepted by a Borrower pursuant to
Section 2.03 and (B) the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.08(d) and
Section 2.09, the Loans comprising each ABR Borrowing shall bear interest at a
rate per annum equal to the lesser of (i) (A)the Alternate Base Rate until the
Termination Date and (B) thereafter until the Maturity Date, the Alternate Base
Rate plus 6/100 of 1% and (ii) the Highest Lawful Rate.
(c) Subject to the provisions of Section 2.09, each Fixed
Rate Loan shall bear interest at a rate per annum equal to the fixed rate of
interest offered by the Bank making such Loan and accepted by a Borrower
pursuant to Section 2.03, but not in excess of the Highest Lawful Rate.
(d) Interest on each Loan shall be payable in arrears on
each Interest Payment Date applicable to such Loan except as otherwise provided
in this Agreement. The applicable LIBO Rate or Alternate Base Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. The Administrative Agent shall promptly
advise the Borrowers and each Bank, as appropriate, of such determination.
SECTION 2.09. Interest on Overdue Amounts. If any Borrower
shall default in the payment of the principal of or interest on any Loan or any
other amount becoming due hereunder, whether by scheduled maturity, notice of
prepayment acceleration or otherwise such Borrower shall on demand from time to
time pay interest, to the extent permitted by law, on such defaulted amount up
to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum equal to the lesser of (a) the Agreed Maximum
Rate and (b) the Highest Lawful Rate.
SECTION 2.10. Interest Rate Determination. (a) If the
Administrative Agent is unable to ascertain the LIBO Rate as set forth in the
definition of such term in Section 1.01, each Reference Bank agrees to furnish
to the Administrative Agent timely information for the purpose of determining
each LIBO Rate in accordance with the definition thereof set forth in Section
1.01. If any one of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the remaining Reference Banks.
The Administrative Agent shall give prompt notice to the Borrowers and the
Banks of the applicable interest rate determined by the Administrative Agent
for purposes of Section 2.08.
(b) If, with respect to any Eurodollar Committed Loans,
the Reference Banks notify the Administrative Agent that the LIBO Rate for any
Interest Period for such Eurodollar Committed Loans will not adequately reflect
the cost to such Reference Banks of making, funding or maintaining their
respective Eurodollar Committed Loans for such Interest Period, the
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Administrative Agent shall forthwith so notify the affected Borrowers and the
Banks, whereupon, unless, subject to Section 2.15 hereof, the Committed
Borrowing Request requesting such Eurodollar Committed Loans is rescinded by
the applicable Borrower or any Eurodollar Committed Loans that are subject to
any request for Conversion given pursuant to Section 2.05 is repaid in full at
the end of its Interest Period, (i) such Eurodollar Committed Loans will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurodollar Committed Loans are denominated in U.S. Dollars, Convert
into ABR Loans and (B) if such Eurodollar Committed Loans are denominated in a
Primary Currency, be exchanged for an Equivalent amount of U.S. Dollars and
converted into ABR Loans and (ii) the obligation of the Banks to make
Eurodollar Committed Loans shall be suspended until the Administrative Agent
shall notify the Borrowers and the Banks that the circumstances causing such
suspension no longer exist.
(c) If any Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Committed Loan made or to be made to
such Borrower in accordance with the provisions contained in the definition of
"Interest Period" set forth in Section 1.01, the Administrative Agent will
forthwith so notify such Borrower and the Banks and the Borrower will be deemed
to have selected an Interest Period of one month for such Eurodollar Committed
Loans, effective automatically, on the last day of the then existing Interest
Period therefor.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Committed Loan will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurodollar Committed Loan is denominated in U.S. Dollars, Convert
into an ABR Loan and (B) if such Eurodollar Committed Loan is denominated in a
Primary Currency, be exchanged for an Equivalent amount of U.S. Dollars and
Converted into an ABR Loan and (ii) the obligation of the Banks to make
Eurodollar Committed Loans, shall be suspended.
(e) If the Administrative Agent and none of the Reference
Banks are able to furnish timely information to the Administrative Agent for
determining the LIBO Rate for any Eurodollar Loan in accordance with clause (b)
of the definition thereof set forth in Section 1.01:
(i) the Administrative Agent shall forthwith notify the
affected Borrower and the Banks that the interest rates cannot be
determined for such Eurodollar Loan;
(ii) whereupon, unless, subject to Section 2.15 hereof,
the Committed Borrowing Request requesting such Eurodollar Committed
Loans is rescinded by the applicable Borrower or any Eurodollar
Committed Loans that are subject to any request for Conversion given
pursuant to Section 2.05 is repaid in full at the end of its Interest
Period, each such Eurodollar Committed Loan will automatically, on the
last day of the then existing Interest Period therefor, (A) if such
Eurodollar Committed Loan is denominated in U.S. Dollars, Convert into
an ABR Loan and (B) if such Eurodollar Committed Loan is denominated
in a Primary Currency, be exchanged for an Equivalent amount of U.S.
Dollars and Converted
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into an ABR Loan (or, if such Loan is then an ABR Loan, will continue
as an ABR Loan); and
(iii) the obligation of the Banks to make Eurodollar Loans,
or to convert Committed Loans into Eurodollar Committed Loans, shall
be suspended until the Administrative Agent shall notify the Borrowers
and the Banks that the circumstances causing such suspension no longer
exist.
SECTION 2.11. Termination and Reduction of Commitments;
Term-Out Date. (a) The Total Commitment shall be automatically terminated on
the Termination Date.
(b) Upon at least ten Business Days' prior irrevocable
written or telecopy notice (a "Termination Notice") to the Administrative
Agent, the Company may at any time in whole permanently terminate, or from time
to time in part permanently reduce, the Total Commitment on the date specified
in such Termination Notice; provided, however, that (i) each partial reduction
of the Total Commitment shall be in a minimum principal amount of $25,000,000
and in an integral multiple of $10,000,000 over such amount and (ii) no such
termination or reduction shall be made which would reduce the Total Commitment
to an amount less than the aggregate outstanding principal amount of the then
outstanding Competitive Loans. Such Termination Notice shall specify the date
and the amount of the termination or reduction of the Total Commitment. In
addition, if the Company permanently terminates the Total Commitment prior to
December 26, 1997, the Company may at its option elect upon the date of such
permanent termination (such date being the "Term-Out Date") to repay the
outstanding Committed Loans on the Maturity Date by specifying such election in
such Termination Notice given pursuant to this Section 2.11(b). The
Administrative Agent shall promptly notify the Banks of the amount of any such
termination or reduction of the Total Commitment and, in the case of any
permanent termination of the Total Commitment, any election by the Company to
designate a Term-Out Date for any Committed Loans outstanding on that date.
(c) Except in the circumstances described in Section
2.12(d), Section 2.13 or Section 2.14, each reduction in the Total Commitment
hereunder shall be made ratably among the Banks in accordance with their
respective Commitments. The Company shall pay to the Administrative Agent for
the account of the Banks, on the date of each termination or reduction, the
Facility Fees on the amount of the Commitments so terminated or reduced accrued
through the date of such termination or reduction.
SECTION 2.12. Prepayment. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Committed Borrowing, in
whole or in part, upon written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent: (i)
before 10:00 a.m., New York City time, five Business Days prior to prepayment,
in the case of Eurodollar Committed Loans, and (ii) before 10:00 a.m., New York
City time, one Business Day prior to prepayment, in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $1,000,000 and not less than $10,000,000 (or
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the Equivalent thereof in the Primary Currency in which such Eurodollar
Committed Borrowing is denominated, determined on the date the related notice
of prepayment is given).
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11(b), but subject to the right of the
Company to select a Term-Out Date, the Borrowers shall pay or prepay so much of
the Committed Borrowings as shall be necessary in order that the aggregate
principal amount of the Competitive Loans and Committed Loans outstanding will
not exceed the Total Commitment, after giving effect to such termination or
reduction.
(c) Each notice of prepayment given by a Borrower
hereunder shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit such Borrower to prepay such Borrowing (or portion thereof) by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.15 and Section 2.16 but otherwise
without premium or penalty. All prepayments under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
(d) If any Borrower intends to use the proceeds of any
Borrowing to finance a Hostile Acquisition, such Borrower shall give the
Administrative Agent and the Banks notice (a "Notice of Acquisition") thereof.
Any Bank may elect (an "Election") to have its Commitment terminated in whole
and to require the repayment in full of its Loans and other amounts owing to it
hereunder. Each Bank making an Election (a "Withdrawing Bank") shall give the
Borrowers, the Administrative Agent and the other Banks notice (a "Notice of
Election") of its Election not more than ten Business Days after its receipt of
a Notice of Acquisition and specifying the reason or reasons for its Election.
The Notice of Election of each Withdrawing Bank shall be irrevocable and shall
specify the date (the "Withdrawal Date") upon which such Withdrawing Bank will
cease to be a party to this Agreement. The Withdrawal Date for a Withdrawing
Bank shall not be earlier than five Business Days after receipt by the
Borrowers of such Withdrawing Bank's Notice of Election; provided, however if a
Withdrawing Bank has Loans outstanding hereunder, the Withdrawal Date for such
Withdrawing Bank shall be the latest date that is the end of an Interest Period
applicable to the outstanding Loans made by such Withdrawing Bank. Upon
receipt by the Administrative Agent and the Borrowers of a Notice of Election
from a Withdrawing Bank, the unused portion of the Commitment of such
Withdrawing Bank shall automatically terminate and such Withdrawing Bank shall
not thereafter be permitted to make a Competitive Bid pursuant to Section 2.03.
The Borrowers, within five Business Days of receipt of a Notice of Election,
shall pay to such Withdrawing Bank all Facility Fees on the amount of its
Commitment so terminated, accrued through the date of payment. In addition, on
the last day of each Interest Period applicable to the outstanding Loans of a
Withdrawing Bank occurring prior to such Withdrawing Bank's Withdrawal Date,
the Commitment of such Withdrawing Bank shall automatically reduce by an amount
equal to the principal amount of the Loans whose Interest Period ends on such
date, and the applicable Borrower, or the Company in the case of Facility Fees,
shall pay to such Withdrawing Bank the principal amount of all such Loans, all
accrued and unpaid interest thereon and Facility Fees on the amount of such
Withdrawing Bank's Commitment so terminated, accrued through the date of
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payment and, if applicable, amounts pursuant to Section 2.13, Section 2.14,
Section 2.15 and Section 2.19. On the Withdrawal Date for each Withdrawing
Bank, the Commitment of such Withdrawing Bank shall terminate in whole, and the
applicable Borrower, or the Company in the case of Facility Fees, shall pay to
such Withdrawing Bank the principal amount of all of its outstanding Loans,
accrued and unpaid interest thereon, Facility Fees on the amount of such
Withdrawing Bank's Commitment so terminated, accrued through the Withdrawal
Date, and all other outstanding amounts (including amounts pursuant to Section
2.13, Section 2.14, Section 2.15 and Section 2.19) due to such Withdrawing Bank
hereunder. Upon and after each Withdrawing Bank's Withdrawal Date and the
repayment under this Section 2.12(d) in full to such Withdrawing Bank of its
outstanding Loans, the accrued interest thereon, its Facility Fees and all
other fees and costs due to it hereunder, such Withdrawing Bank shall not be a
party to this Agreement nor be included as a "Bank" hereunder except for
purposes of Section 2.13, Section 2.14, Section 2.15 and Section 9.05.
(e) In the event any Withdrawing Bank makes an Election
pursuant to Section 2.12(d), the Company may give notice to such Withdrawing
Bank (with copies to the Administrative Agent) that it wishes to seek one or
more Eligible Assignees (which may be one or more of the Banks) to assume the
Commitment of such Withdrawing Bank and to purchase its outstanding Loans and
Notes. Each Withdrawing Bank making an Election pursuant to Section 2.12(d)
agrees to sell its Commitment, Loans, Notes and interest in this Agreement
pursuant to Section 9.11(c) to any such Eligible Assignee for an amount equal
to the sum of the outstanding unpaid principal of and accrued interest on such
Loans and Notes plus all other fees and amounts (including any compensation
claimed by such Withdrawing Bank under Section 2.13) due such Withdrawing Bank
hereunder calculated, in each case, to the date such Commitment, Loans, Notes
and interest are purchased, whereupon such Withdrawing Bank shall have no
further Commitment or other obligation to any Borrower hereunder or under any
Note.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Bank of making or maintaining any of
the Loans may fluctuate as a result of the applicability of, or changes in,
reserve requirements imposed by the Board, including reserve requirements under
Regulation D in connection with Eurocurrency Liabilities. Subject to Section
9.08, each Borrower agrees to pay to each Bank, as provided in Section 2.13(d),
at any time when such Bank shall be required to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Bank from the date of such Loan until such principal amount is paid in
full, payable on each Interest Payment Date for such Eurodollar Loan, at an
interest rate per annum equal at all times during each Interest Period to the
excess of (i) the rate obtained by dividing the LIBO Rate for such Interest
Period by a percentage equal to 100% minus the reserve percentage applicable
during such Interest Period under regulations issued from time to time by the
Board (or if more than one such percentage is so applicable, minus the daily
average of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) for determining the maximum
requirement (including any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets consisting of
or including
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Eurocurrency Liabilities over (ii) the LIBO Rate for such Interest Period. It
is understood by the parties hereto that the rates of interest applicable to
Eurodollar Loans have been determined on the assumption that no such reserve
requirements exist or will exist and that such rates do not reflect costs
imposed on the Banks in connection with such reserve requirements. It is
agreed that for purposes of this Section 2.13(a) the Eurodollar Loans made
hereunder shall be deemed to constitute Eurocurrency Liabilities and to be
subject to the reserve requirements of Regulation D without benefit of or
credit for proration, exemptions or offsets which might otherwise be available
to the Banks from time to time under Regulation D.
(b) Notwithstanding any other provision herein, if after
the Execution Date the introduction of any applicable law or regulation or any
change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank with any
applicable guideline or request from any central bank or governmental authority
(whether or not having the force of law) (i) shall change the basis of taxation
of payments to any Bank of the principal of or interest on any Eurodollar Loan
or Fixed Rate Loan made by such Bank or any other fees or amounts payable
hereunder (other than (x) taxes imposed on the overall net income of such Bank
or its Applicable Lending Office by the jurisdiction in which such Bank or its
Applicable Lending Office has its principal office or by any political
subdivision or taxing authority therein (or any tax which is enacted or adopted
by such jurisdiction, political subdivision or taxing authority as a direct
substitute for any such taxes) or (y) any tax, assessment or other governmental
charge that would not have been imposed but for the failure of any Bank to
comply with any certification, information, documentation or other reporting
requirement), (ii) shall 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, such Bank, or (iii) shall impose on such
Bank or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Fixed Rate Loan made by such Bank, and the
result of any of the foregoing shall be to increase the cost to such Bank of
maintaining its Commitment or of making or maintaining any Eurodollar Loan or
Fixed Rate Loan or to reduce the amount of any sum received or receivable by
such Bank hereunder (whether of principal, interest or otherwise) in respect
thereof by an amount deemed in good faith by such Bank to be material, then
each Borrower shall pay to the Administrative Agent for the account of such
Bank such additional amount or amounts as will compensate such Bank for such
increase or reduction to such Bank upon demand by such Bank (through the
Administrative Agent).
(c) If any Bank shall have determined in good faith that
the applicability of any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards," or the adoption after the Execution
Date of any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority,
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central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital, as a consequence of this Agreement or
the Loans made by such Bank pursuant hereto to a level below that which such
Bank could have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, as provided in Section 2.13(d), each Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for any
such increased capital requirement.
(d) Each Bank will notify the Borrowers through the
Administrative Agent of any event occurring after the date of this Agreement
which will entitle such Bank to compensation pursuant to this Section 2.13, as
promptly as practicable, and in any event within 90 days after it becomes aware
thereof and determines to request compensation. A certificate of a Bank
setting forth in reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Bank (or participating banks or other entities
pursuant to Section 9.11) as specified in paragraph (a), (b) or (c) above, as
the case may be, and (ii) the calculation of such amount or amounts under
paragraphs (a), (b) and (c) above, or if such calculation is not practicable, a
statement setting forth in reasonable detail the basis for the amounts claimed
as necessary to compensate such Bank, shall be delivered to the applicable
Borrower (with a copy to the Administrative Agent) and shall be conclusive
absent manifest error. Each Borrower shall pay to the Administrative Agent for
the account of such Bank the amount shown as due on any such certificate within
30 days after its receipt of the same.
(e) Except as expressly provided in Section 2.13(d),
failure on the part of any Bank to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on
capital with respect to any Interest Period or any other period shall not
constitute a waiver of such Bank's rights to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any other period.
The protection of this Section 2.13 shall be available to each Bank regardless
of any possible contention of invalidity or inapplicability of law, regulation
or condition which shall have been imposed.
(f) In the event any Bank shall seek compensation
pursuant to this Section 2.13, the Company may give notice to such Bank (with
copies to the Administrative Agent) that it wishes to seek one or more Eligible
Assignees (which may be one or more of the Banks) to assume the Commitment of
such Bank and to purchase its outstanding Loans and Notes. Each Bank
requesting compensation pursuant to this Section 2.13 agrees to sell its
Commitment, Loans, Notes and interest in this Agreement pursuant to Section
9.11(c) to any such Eligible Assignee for an amount equal to the sum of the
outstanding unpaid principal of and accrued interest on such Loans and Notes
plus all other fees and amounts (including any compensation claimed by such
Bank under this Section 2.13) due such Bank hereunder calculated, in each case,
to the date such Commitment, Loans, Notes and interest are purchased, whereupon
such Bank shall have no further Commitment or other obligation to any Borrower
hereunder or under any Note.
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(g) Without prejudice to the survival of any other
obligations of the Borrowers hereunder, the obligations of the Borrowers under
this Section 2.13 shall survive the termination of this Agreement and the
payment or assignment of the Notes.
(h) Notwithstanding anything in this Section 2.13 to the
contrary, in no event shall any Bank be permitted to take or receive any
compensation hereunder constituting interest in excess of the Highest Lawful
Rate.
SECTION 2.14. Change in Legality. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank or
its Eurodollar Lending Office to make or maintain any Eurodollar Loan or to
give effect to its obligations as contemplated hereby, then, by written notice
to the Borrowers and to the Administrative Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Bank hereunder, whereupon such Bank shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by the Company for a Eurodollar Committed
Borrowing shall, as to such Bank only (unless the Company (x) shall
have withdrawn such request, in which case such request shall be of no
force and effect, or (y) shall have made a new request for a Borrowing
of a different Type in accordance with the terms hereof, which shall
be deemed to supersede such request for a Eurodollar Committed
Borrowing), be deemed a request for an ABR Loan; and
(ii) require that all outstanding Eurodollar Loans made by
it be Converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically Converted to ABR Loans as of the effective date
of such notice as provided in Section 2.14(b).
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied
to repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the
Borrowers (with a copy to the Administrative Agent) by any Bank pursuant to
Section 2.14(a) shall be effective as to each Eurodollar Loan, if lawful, on
the last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of receipt
by the Company.
(c) In the event any Bank shall give a notice to the
Borrowers pursuant to this Section 2.14, the Company may give notice to such
Bank (with copies to the Administrative Agent) that it wishes to seek one or
more Eligible Assignees (which may be one or more of the Banks) to
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assume the Commitment of such Bank and to purchase its outstanding Loans and
Notes. Each Bank giving a notice to the Company pursuant to this Section 2.14
agrees to sell its Commitment, Loans, Notes and interest in this Agreement
pursuant to Section 9.11(c) to any such Eligible Assignee for an amount equal
to the sum of the outstanding unpaid principal of and accrued interest on such
Loans and Notes plus all other fees and amounts (including any compensation
claimed by such Bank under Section 2.15) due such Bank hereunder calculated, in
each case, to the date such Commitment, Loans, Notes, interest and fees are
purchased, whereupon such Bank shall have no further Commitment or other
obligation to the Borrowers hereunder or under any Note.
SECTION 2.15. Indemnity. The Company shall indemnify each
Bank against any loss or reasonable expense which such Bank may sustain or
incur as a consequence of (a) any failure by a Borrower to fulfill on the date
of any borrowing hereunder the applicable conditions set forth in Article III,
(b) any failure by a Borrower to borrow or to refinance, convert (other than
conversion into an ABR Loan) or continue any Loan hereunder after a Committed
Borrowing Request pursuant to Article II has been given or after Competitive
Bids have been accepted or after a notice of Conversion has been given pursuant
to Section 2.05, (c) any payment, prepayment or Conversion of a Eurodollar Loan
or Fixed Rate Loan required or permitted by any provision of this Agreement or
otherwise made on a date other than the last day of the applicable Interest
Period, (d) any default in the payment or prepayment of the principal amount of
any Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, by notice of prepayment or otherwise), or (e)
the occurrence of any Event of Default, including, in the case of any of the
events set forth in clauses (a) through (e) of this Section 2.15, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan or Fixed Rate Loan.
Such loss or reasonable expense shall include an amount equal to the excess, if
any, as reasonably determined by each Bank of (y) its cost of obtaining the
funds for the Loan being paid, prepaid or converted or not borrowed,
refinanced, converted or continued (based on the LIBO Rate or, in the case of a
Fixed Rate Loan, the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment or conversion or failure to borrow,
refinance, convert or continue to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, refinance, convert or continue
the Interest Period for the Loan which would have commenced on the date of such
failure to borrow, refinance, convert or continue) over (z) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid or converted or not borrowed,
refinanced, converted or continued for such period or Interest Period, as the
case may be. A certificate of each Bank setting forth any amount or amounts
which such Bank is entitled to receive pursuant to this Section 2.15 together
with either a calculation of such amount or amounts or a statement of the basis
on which such amount or amounts have been determined shall be delivered to the
Company (with a copy to the Administrative Agent) and shall be conclusive, if
made in good faith, absent manifest error. The Company shall pay to the
Administrative Agent for the account of each Bank the amount shown as due on
any certificate within 30 days after its receipt of the same. Without
prejudice to the survival of any other obligation of the Company hereunder, the
obligations of the Company under this Section 2.15 shall survive the
termination of this Agreement and/or the payment or assignment of any of the
Notes. Without
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limitation of this Section 2.15, the provisions of this Section 2.15 shall be
enforceable against the Company with respect to the conditions described in
clauses (a) and (b) of this Section 2.15, with respect to any Committed
Borrowing Request or Competitive Bid Request given by a Borrower hereunder on
or after the Execution Date regardless of whether the Effective Date occurs.
Notwithstanding the foregoing, in no event shall any Bank be permitted to
receive any compensation hereunder constituting interest in excess of the
Highest Lawful Rate.
SECTION 2.16. Pro Rata Treatment. Except as provided in
Section 2.12(d) or as required under Section 2.13, Section 2.14 or Section 2.15
each Committed Borrowing, each payment or prepayment of principal of any
Committed Borrowing, each payment of interest on the Committed Loans, each
payment of the Facility Fees with respect to each Bank's Commitment, each
reduction of the Commitments and each refinancing of any Borrowing with a
Committed Borrowing of any Type shall be allocated pro rata among the Banks in
accordance with their respective Commitments (or, if such Commitments shall
have expired or been terminated, in accordance with the respective principal
amounts of their outstanding Committed Loans) after giving effect to any
payment or prepayment of Committed Loans. Each payment of principal of any
Competitive Borrowing shall be allocated pro rata among the Banks participating
in such Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective amounts
of accrued and unpaid interest on their outstanding Competitive Loans
comprising such Borrowing. For purposes of determining the available
Commitments of the Banks at any time, each outstanding Competitive Borrowing
shall be deemed to have utilized the Commitments of the Banks (including those
Banks which shall not have made Loans as part of such Competitive Borrowing)
pro rata in accordance with such respective Commitments. Each Bank agrees that
in computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. (a) Each Bank agrees that
if it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrowers (pursuant to Section 9.06 or otherwise)
including a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim received by such Bank under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by similar means, obtain payment (voluntary
or involuntary) (other than pursuant to Section 2.13, Section 2.14 or Section
2.15) of any Committed Loan or Loans as a result of which the unpaid principal
portion of the Committed Loans of such Bank shall be proportionately less than
the unpaid principal portion of the Committed Loans of any other Bank, it shall
be deemed simultaneously to have purchased from such other Bank at face value,
and shall promptly pay to such other Bank the purchase price for, a
participation in the Committed Loans of such other Bank, so that the aggregate
unpaid principal amount of the Committed Loans and participation in the
Committed Loans held by each Bank shall be in the same proportion to the
aggregate unpaid principal amount of all Committed Loans then outstanding as
the principal amount of its Committed Loans prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Committed
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Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.17 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Committed Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by such Borrower to such
Bank by reason thereof as fully as if such Bank had made a Committed Loan
directly to such Borrower in the amount of such participation.
(b) In the event that a Bank shall receive a payment of
the type described in paragraph (a) of this Section 2.17, with respect to a
Competitive Loan at a time when no Committed Loans are outstanding, as a result
of which the unpaid principal portion of the Competitive Loans of such Bank
shall be proportionately less than the unpaid principal portion of the
Competitive Loans of any other Bank on the date of such payment, it shall be
deemed to have simultaneously purchased from such other Bank at face value, and
shall promptly pay to such other Bank the purchase price for, a participation
in the Competitive Loans of such Bank, so that the aggregate unpaid principal
amount of the Competitive Loans and participation in Competitive Loans held by
each Bank shall be in the same proportion to the aggregate unpaid principal
amount of all Competitive Loans then outstanding as the principal amount of its
Competitive Loans prior to such exercise of banker's lien, setoff or
counterclaim was to the principal amount of all Competitive Loans outstanding
prior to such exercise of banker's lien, setoff or counterclaim; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a participation in a
Competitive Loan deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by such Borrower to such Bank as fully as if such Bank had made a
Competitive Loan directly to such Borrower in the amount of such participation.
SECTION 2.18. Payments and Computations. (a) Each Borrower
shall make each payment required to be made by it hereunder and under the
Notes, except with respect to principal of, interest on and other amounts
arising from, or incurred in respect of, Loans denominated in a Foreign
Currency, not later than 12:00 noon (New York City time) on the day when due in
U.S. Dollars to the Administrative Agent at the applicable Administrative
Agent's Account, in same day funds. Each Borrower shall make each payment
required to be made by it hereunder and under the Notes with respect to
principal of, interest on and other amounts arising from, or incurred in
respect of, Loans denominated in a Foreign Currency not later than 12:00 noon
(at the time of the jurisdiction in which the applicable Administrative Agent's
Account or the Payment Office for such Foreign Currency is located) on the day
when due in such Foreign Currency to the Administrative Agent, in same day
funds, (i) in the case of each Primary Currency, at the applicable
Administrative
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Agent's Account and (ii) in the case of each Alternate Currency, by deposit of
such funds to the account of the Administrative Agent maintained at the
applicable Payment Office. The Administrative Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or the Facility Fees ratably (other than amounts payable pursuant to
Sections 2.02(c), 2.03, 2.12(d), 2.13, 2.14 and 2.15 or Section 9.04(b) to the
Banks for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Bank to such
Bank for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.11(f), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Bank assignee thereunder, and the parties to such
Assignment and the Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest that are based on clause
(a) of the definition of Alternate Base Rate set forth in Section 1.01, the
LIBO Rate for Committed Loans denominated in Sterling and the LIBO Rate for
Competitive Loans denominated in Sterling or in an Alternate Currency where the
market convention for such currency is a basis of 365 or 366 days shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest that are otherwise based on the
LIBO Rate or that are based on the Federal Funds Rate and Facility Fees shall
be made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or Facility Fees are
payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
fees, as the case may be; provided, however, that if such extension would
cause payment of interest on or principal of Eurodollar Loans to be made in the
next following calendar month, such payment shall be made on the immediately
preceding Business Day.
(d) Unless the Administrative Agent shall have received
notice from the Borrower required to make any payment hereunder prior to the
date on which such payment is due to the Bank hereunder that such Borrower will
not make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each lender on such due date an amount equal to the amount then
due such Bank. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank,
together with interest thereon, for each day from the date such amount is
distributed to such Bank
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until the date such Bank repays such amount to the Administrative Agent, at the
higher of (i) the Federal Funds Effective Rate and (ii) the cost of funds
incurred by the Administrative Agent in respect of such amount.
(e) To the extent that the Administrative Agent receives
funds for application to the amounts owing by any Borrower under or in respect
of this Agreement or any Note in currencies other than the currency or
currencies required to enable the Administrative Agent to distribute funds to
the Banks in accordance with the terms of this Section 2.18, the Administrative
Agent shall be entitled to convert or exchange such funds into U.S. Dollars or
into a Foreign Currency or from U.S. Dollars to a Foreign Currency or from an
Alternate Currency to U.S. Dollars, as the case may be, to the extent necessary
to enable the Administrative Agent to distribute such funds in accordance with
the terms of this Section 2.18; provided that each of the Borrowers and each of
the Banks hereby agree that the Administrative Agent shall not be liable or
responsible for any loss, cost or expense suffered by such Borrower or such
Bank as a result of any conversion or exchange of currencies effected pursuant
to this Section 2.18(d) or as a result of the failure of the Administrative
Agent to effect any such conversion or exchange; and provided further that the
Company agrees to indemnify the Administrative Agent and each Bank, and hold
the Administrative Agent and each Bank harmless, for any and all costs and
expenses incurred by the Administrative Agent or any Bank for any conversion or
exchange of currencies (or the failure to Convert or exchange any currencies)
in accordance with this Section 2.18(d).
SECTION 2.19. Taxes. (a) Any and all payments by the
Borrowers hereunder shall be made, in accordance with Section 2.18, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the Administrative Agent's or any Bank's
income and franchise taxes imposed on the Administrative Agent or any Bank by
the United States or any jurisdiction under the laws of which it is organized
or any political subdivision thereof (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If any Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to the Administrative
Agent or any Bank or if the Administrative Agent shall be required by law to
deduct any Taxes from or in respect of any sum paid or payable hereunder or
under any Note to any Bank, (i) the sum payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions, whether by such Borrower or the
Administrative Agent, applicable to additional sums payable under this Section
2.19), such Bank and the Administrative Agent each receive an amount equal to
the sum they each would have received had no such deductions been made (for
example, and without limitation, if the sum paid or payable hereunder from or
in respect of which a Borrower or the Administrative Agent shall be required to
deduct any Taxes is interest, the interest payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions applicable to additional interest),
such Bank and the Administrative Agent each receive interest equal to the
interest they each would have received had no such deduction been made), (ii)
such Borrower (or, as the case may be and as required by applicable law, the
Administrative Agent) shall make such deductions and (iii) such
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Borrower (or, as the case may be and as required by applicable law, the
Administrative Agent) shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank and the
Administrative Agent for the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 2.19) paid by such Bank or the Administrative Agent, as the case
may be, and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Such indemnification shall be made within
10 days after the date any Bank or the Administrative Agent, as the case may
be, makes written demand therefor, along with information detailing the reason
such Taxes or Other Taxes were imposed. If the Company, after consultation
with such Bank or the Administrative Agent, as the case may be, reasonably
determines that such Taxes or Other Taxes were incorrect or not legally
asserted, then, the Administrative Agent or such Bank, as the case may be,
shall, at the expense of the Company, take all actions reasonably requested by
the Company to cause such amounts to be refunded. If a Bank or the
Administrative Agent shall become aware that it is entitled to receive a refund
in respect of Taxes or Other Taxes, it shall promptly notify the applicable
Borrower and the Company (if it is not the Borrower) of the availability of
such refund and shall, within 10 days thereafter, apply for such refund at such
Borrower's expense. If any Bank or the Administrative Agent receives a refund
in respect of any Taxes or Other Taxes for which such Bank or the
Administrative Agent has received payment from a Borrower hereunder it shall
promptly notify such Borrower and the Company (if it is not the Borrower) of
such refund and shall repay such refund to such Borrower without interest,
provided that such Borrower, upon the request of such Bank or the
Administrative Agent, agrees to return such refund (plus penalties, interest or
other charges) to such Bank or the Administrative Agent in the event such Bank
or the Administrative Agent is required to repay such refund.
(d) Within 30 days after the date of any payment of Taxes
or Other Taxes withheld by a Borrower in respect of any payment to any Bank (or
transferee) or the Administrative Agent, such Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.02, the original
or a certified copy of a receipt evidencing payment thereof or, if such
original or copy of a receipt is not available from the relevant taxing
authority, other documentation of payment reasonably satisfactory to such Bank
(or transferee) or the Administrative Agent.
(e) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations contained in this
Section 2.19 shall survive the payment in full of principal and interest
hereunder.
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(f) Each Bank shall (i) promptly after the Effective Date
in the case of each Continuing Bank and New Bank and promptly after the date of
the Assignment and Acceptance, pursuant to which it became a Bank in the case
of each other Bank and (ii) from time to time thereafter upon the obsolescence
or expiration of any previously delivered form or certificate (but only so long
as such Bank remains lawfully able to do so), provide the Company and the
Administrative Agent with any form or certificate that is required by any
taxing authority (including, if applicable, two original Internal Revenue
Service forms 1001 or 4224, as appropriate (or any successor form or other form
prescribed by the Internal Revenue Service), an original Internal Revenue
Service form W-9 (or any successor form), as shall be appropriate to establish,
subject to the last sentence of this Section 2.19(f), that such Bank is exempt
from Home Jurisdiction Withholding Taxes on payments pursuant to this Agreement
or the Notes (or, in the case of a Bank that becomes a party to this Agreement
pursuant to Section 9.11(a), (b) and (c), exempt from or entitled to a reduced
rate of Home Jurisdiction Withholding Taxes on payments pursuant to this
Agreement or the Notes that is no greater than the rate to which the assigning
Bank was entitled); provided, however, that such Bank shall have been advised
in writing by the Company or any other Borrower (including at the time any
renewal form is due) of the form or certificate applicable to it, determined by
reference to the jurisdiction of organization and Applicable Lending Offices of
such Bank set forth on the signature page for each Bank hereto, in the case of
each Continuing Bank and New Bank, or to the jurisdiction of organization and
Applicable Lending Offices of such Bank set forth in the Assignment and
Acceptance, as the case may be, pursuant to which it became a Bank, in the case
of each other Bank, or such other branch or office of such Bank designated by
such Bank from time to time as the branch or office at which any of its Loans
are to be made or maintained. Each Bank shall promptly notify the Company and
the Administrative Agent if, because of any change in the jurisdiction of
organization or an Applicable Lending Office of such Bank, (A) it is required
to withdraw or cancel any form or certificate previously submitted by it or any
form or certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of any Home Jurisdiction
Withholding Tax to a greater or lesser extent than the extent to which payments
to it pursuant to this Agreement or the Notes were previously subject. If any
form or document referred to in this Section 2.19(f) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001
or 4224, that the Bank reasonably considers to be confidential, the Bank shall
give notice thereof to the Company and the Administrative Agent and shall not
be obligated to include in such form or document such confidential information;
provided, however, such form or document will state that such confidential
information may be requested directly from the Bank.
(g) Any Bank claiming any additional amounts payable
pursuant to this Section 2.19 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document
requested by a Borrower or to change the jurisdiction of its applicable lending
office if the making of such a filing or change would avoid the need for or
reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Bank, be otherwise
disadvantageous to such Bank.
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SECTION 2.20 Borrowing Subsidiaries. The Company may
designate any Wholly-owned Subsidiary as a Borrowing Subsidiary. Upon the
acceptance by the Administrative Agent of a Borrowing Subsidiary Counterpart of
this Agreement in the form of Exhibit 2.20 (a "Borrowing Subsidiary
Counterpart") executed by a Wholly-owned Subsidiary and the Company, such
Wholly-owned Subsidiary shall be a Borrowing Subsidiary and a party to this
Agreement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Initial Borrowing.
The obligation of each Bank to make its initial Loan is subject to the
condition precedent that the Administrative Agent shall have received on the
Execution Date the following, each dated (unless otherwise indicated) such day
and, with respect to all such documents referred to in Section 3.01(a),
Section 3.01(d), Section 3.01(e), Section 3.01(f), Section 3.01(g), and Section
3.01(h) in sufficient copies for each Bank and the Administrative Agent:
(a) A counterpart of this Agreement dated the Execution
Date (to which all of the Exhibits and Schedules have been attached)
executed by each of the parties hereto.
(b) The Notes of the Company, dated of even date
herewith, properly executed by the Company payable to the order of the
Banks, respectively.
(c) The Administrative Agent's Letter dated the Execution
Date executed by the Company and the Administrative Agent.
(d) Copies of the Certificate of Incorporation of the
Company, together with all amendments, and a current certificate of
good standing, both certified by the appropriate governmental office,
in its jurisdiction of organization.
(e) A certificate of the Secretary or an Assistant
Secretary of the Company certifying, inter alia, (i) true and complete
copies of the by-laws of the Company, together with all amendments,
(ii) true and complete copies of resolutions adopted by the Board of
Directors of the Company authorizing the Company to borrow and effect
other transactions hereunder including the Guaranty, and (iii) the
incumbency and specimen signatures of the Persons executing any
documents on behalf of the Company.
(f) A certificate of a Financial Officer of the Company
certifying the absence of the occurrence and continuance of any
Default or Event of Default with respect to the Company.
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(g) The written opinion of the Associate General Counsel
of the Company, addressed to the Administrative Agent and the Banks,
substantially in the form set out in Exhibit 3.01-A.
(h) The written opinion of Andrews & Kurth L.L.P.,
counsel for the Administrative Agent, addressed to the Administrative
Agent and the Banks, substantially in the form set out in Exhibit
3.01-B.
(i) An Administrative Questionnaire completed by each
Bank.
In addition, on the Effective Date the Administrative Agent shall have received
all fees to which it is entitled to receive on such date pursuant to the
Administrative Agent's Letter.
SECTION 3.02. Conditions Precedent to the Initial Loan to
each Borrowing Subsidiary. The obligation of each Bank to make its initial
Loan to any Borrowing Subsidiary is subject to the further conditions precedent
that the Administrative Agent shall have received on or before the Borrowing
Date for such Loan the following, each dated such day, and with respect to all
such documents referred to in Section 3.02(a), Section 3.02(c), Section
3.02(d), Section 3.02(e), Section 3.02(f) and Section 3.02(h) in sufficient
copies for each Bank and the Administrative Agent that is not a Bank.
(a) A Borrowing Subsidiary Counterpart executed by such
Borrowing Subsidiary and the Company.
(b) The Notes of such Borrowing Subsidiary dated the date
of such Borrowing, properly executed to the order of the Banks, respectively.
(c) Copies of the Articles or Certificate of
Incorporation (or other similar evidence of organization) of such Borrowing
Subsidiary, together with all amendments, and a current certificate of good
standing (or the equivalent thereof), both certified by the appropriate
governmental officer, in its jurisdiction of organization.
(d) A certificate of the Secretary or Assistant Secretary
(or persons performing similar functions) of such Borrowing Subsidiary
certifying, inter alia (i) true and complete copies of the bylaws (or other
similar document of such Borrowing Subsidiary) together with all amendments,
(ii) true and complete copies of resolutions adopted by the Board of Directors
(or persons performing similar functions) of such Borrowing Subsidiary to
borrow and effect other transactions hereunder and (iii) the incumbency and
specimen signatures of the Persons executing any documents on behalf of such
Borrowing Subsidiary.
(e) A Certificate of a Financial Officer of such
Borrowing Subsidiary certifying the absence of the occurrence and continuance
of any Default or Event of Default with respect to such Borrowing Subsidiary.
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(f) One or more written opinions of counsel to such
Borrowing Subsidiary, each in form and substance satisfactory to the
Administrative Agent and the Banks.
(g) A letter from CT Corporation System, Inc., in form
and substance satisfactory to the Administrative Agent, evidencing the
obligation of CT Corporation System, Inc. to accept service of process in the
State of Texas on behalf of such Borrowing Subsidiary.
(h) Such other documents as the Administrative Agent or
any Bank through the Administrative Agent may have reasonably requested.
SECTION 3.03. Conditions Precedent to Each Committed
Borrowing. The obligation of each Bank to make a Committed Loan on the
occasion of any Committed Borrowing (including the initial Committed Borrowing)
shall be subject to the further conditions precedent that on the Borrowing Date
of such Committed Borrowing the following statements shall be true (and each of
the giving of the applicable Committed Borrowing Request and the acceptance by
a Borrower of the proceeds of such Committed Borrowing shall constitute a
representation and warranty by the Company and such Borrower, if not the
Company, that on the date of such Committed Borrowing such statements are
true):
(a) The representations and warranties contained in
Article IV are correct on and as of the date of such Committed Borrowing,
before and after giving effect to such Committed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
provided, however, that for purposes of this clause (a), on and after the date
on which the Company delivers its audited consolidated financial statements to
the Administrative Agent and the Banks pursuant to Section 5.07(a), (A) the
reference in the first sentence of Section 4.07 to the Company's financial
statements contained in the Company's Annual Report on Form 10-K shall be a
reference to the audited consolidated financial statements of the Company most
recently delivered to the Administrative Agent and the Banks by the Company
pursuant to Section 5.07(a) prior to the date of such Committed Borrowing and
(B) the reference in the last sentence of Section 4.07 to September 30, 1996,
shall be a reference to the date of the audited consolidated financial
statements most recently delivered to the Administrative Agent and the Banks
pursuant to Section 5.07(a);
(b) No event has occurred and is continuing, or would
result from such Committed Borrowing or from the application of the proceeds
therefrom, which constitutes either a Default or an Event of Default; and
(c) Following the making of such Committed Borrowing and
all other Borrowings to be made on the same day under this Agreement, the
aggregate principal amount of all Loans then outstanding shall not exceed the
Total Commitment.
SECTION 3.04. Conditions Precedent to Each Competitive
Borrowing. The obligation of each Bank which is to make a Competitive Loan on
the occasion of a Competitive
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Borrowing (including the initial Competitive Borrowing) to make such
Competitive Loan as part of such Competitive Borrowing is subject to the
further conditions precedent that:
(a) The Administrative Agent shall have received a
Competitive Bid Request with respect thereto; and
(b) On the Borrowing Date of such Competitive Borrowing,
the following statements shall be true (and each of the giving of the
applicable Competitive Bid Request and the acceptance by the Borrowers of the
proceeds of such Competitive Borrowing shall constitute a representation and
warranty by the Company and such Borrower, if not the Company, that on the date
of such Competitive Borrowing such statements are true):
(i) The representations and warranties contained in
Article IV are correct on and as of the date of such Competitive
Borrowing, before and after giving effect to such Competitive
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; provided, however, that for purposes of
this clause (i), on and after the date on which the Company delivers
its audited consolidated financial statements to the Administrative
Agent and the Banks pursuant to Section 5.07(a), (A) the reference in
the first sentence of Section 4.07 to the Company's financial
statements contained in the Company's Annual Report on Form 10-K shall
be a reference to the consolidated financial statements of the Company
most recently delivered to the Administrative Agent and the Banks by
the Company pursuant to Section 5.07(a) prior to the date of such
Competitive Borrowing and (B) the reference in the last sentence of
Section 4.07 to September 30, 1996, shall be a reference to the date
of the audited consolidated financial statements most recently
delivered to the Administrative Agent and the Banks pursuant to
Section 5.07(a);
(ii) No event has occurred and is continuing, or would
result from such Competitive Borrowing or from the application of the
proceeds therefrom, which constitutes either a Default or an Event of
Default; and
(iii) Following the making of such Competitive Borrowing
and all other Borrowings to be made on the same day under this
Agreement, the aggregate principal amount of all Loans then
outstanding shall not exceed the Total Commitment.
SECTION 3.05. Conditions Precedent to Conversions and
Continuations. The obligation of the Banks to convert any existing Committed
Borrowing into a Eurodollar Committed Borrowing or to continue any existing
Committed Borrowing as a Eurodollar Committed Borrowing is subject to the
condition precedent that on the date of such conversion or continuation no
Default or Event of Default shall have occurred and be continuing or would
result from the making of such conversion or continuation. The acceptance of
the benefits of each such conversion and continuation shall constitute a
representation and warranty by the Borrowers to each of the Banks that no
Default or Event of Default shall have occurred and be continuing or would
result from the making of such conversion or continuation.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative
Agent and the Banks, and, to the extent the following relates to any Borrowing
Subsidiary, such Borrowing Subsidiary severally represents and warrants as to
itself to the Administrative Agent and the Banks, in each case, as follows:
SECTION 4.01. Organization. Each Borrower and each Principal
Subsidiary (a) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (b) has the
corporate power to own its property and to carry on its business as now being
conducted and (c) is duly qualified to do business and is in good standing in
each jurisdiction in which the properties owned or leased by it therein or in
which the nature of the business conducted by it makes such qualification
necessary except where the failure of such Borrower or such Principal
Subsidiary to be so qualified or in good standing, individually or
collectively, would not have a Material Adverse Effect.
SECTION 4.02. Principal Subsidiaries. Set forth on Schedule
III is a complete and accurate list of all Principal Subsidiaries existing on
September 30, 1996, showing the jurisdiction of its incorporation, and the
percentage of its outstanding capital stock owned by the Company on the date
hereof. All stock of each Principal Subsidiary has been validly issued, is
fully paid and nonassessable and (except for directors' qualifying shares) is
owned, directly or indirectly, by the Company free and clear of all Liens not
permitted under Section 5.02 hereof.
SECTION 4.03. Powers. Each Borrower has the corporate power
to execute, deliver and perform its obligations under this Agreement and its
Notes and, in the case of the Company, under the Guaranty, all of which have
been duly authorized by all proper and necessary corporate action.
SECTION 4.04. Authorization and Consents. All actions,
conditions and things required by applicable statutes (whether foreign,
federal, state or local) or any order, rule or regulation of any court or
governmental agency or body to be taken, fulfilled and done (including the
obtaining of any necessary consents or approvals) in order (a) to enable each
Borrower lawfully to execute deliver and perform its obligations under this
Agreement and its Notes, and in the case of the Company, the Guaranty, and (b)
to ensure that those obligations are legally binding and enforceable against
such Borrower in accordance with their respective terms and (c) to make this
Agreement and the Notes admissible as evidence in the state and federal courts
in the State of Texas, have been taken, fulfilled and done.
SECTION 4.05. Non-Violation of Laws, Etc. The execution,
delivery and performance by each Borrower of its obligations under this
Agreement and its Notes do not and will
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not violate (a) any statute or any order, rule or regulation of any court or
governmental agency or body to which it is subject, (b) its charter or bylaws,
or (c) any agreement to which it or any of its Subsidiaries is a party or by
which it or its assets may be bound or affected, other than violations of any
such agreements which individually or collectively would not have a Material
Adverse Effect, and do not and will not, except as provided in Section 5.02,
result in or require the creation of any Lien of any nature upon or with
respect to any assets now owned or hereafter acquired by such Borrower or any
such Subsidiary.
SECTION 4.06. Obligations Binding. This Agreement and the
Notes constitute valid and binding obligations of each Borrower party thereto,
enforceable against such Borrower in accordance with their respective terms,
except as the enforceability of this Agreement and the Notes may be limited by
general principles of equity and bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights
generally.
SECTION 4.07. Financial Statements. The consolidated balance
sheets of the Company as of September 30, 1995 and September 30, 1996, and the
related consolidated statements of operations, common stockholders' equity and
cash flows, for each of the three years in the period ended September 30, 1996,
including in each case the footnotes thereto, audited by Arthur Andersen LLP
and contained in the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1996, which have been delivered to the Administrative Agent
and the Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Company and its
Subsidiaries as of such dates and their results of operations and their cash
flows for the periods ended on such dates. There has been no material adverse
change in such results of operations or financial position since September 30,
1996.
SECTION 4.08. Litigation. No proceedings against or
affecting any Borrower or any of its Subsidiaries are pending, or to the
knowledge of the Company or any such Borrower, threatened before any court or
governmental agency or department:
(a) which purport to or do restrain the execution,
delivery or performance by the Borrowers under this Agreement or the
Notes or the enforcement of this Agreement or the Notes; or
(b) which involve a material risk of having (either
individually or collectively) a Material Adverse Effect.
SECTION 4.09. No Default. Neither any Default nor any Event
of Default has occurred and is continuing or will occur as a result of making
any Loan. Neither the Company nor any of its Subsidiaries is in breach or
default under any agreement relating to Indebtedness to any extent or in a
manner which is likely to have a Material Adverse Effect.
SECTION 4.10. Investment Company Act. Neither the Company
nor any of its Subsidiaries is, or is directly or indirectly controlled by or
acting on behalf of any Person which is,
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an "investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
SECTION 4.11. Public Utility Holding Company Act. Neither
the Company nor any of its Subsidiaries is a non-exempt "holding company," or
subject to regulation as such, or, to the knowledge of the Company's officers,
an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 4.12. ERISA. Neither the Company nor any of its
Subsidiaries has incurred any accumulated funding deficiency within the meaning
of ERISA which would have a Material Adverse Effect and neither the Company nor
any such Subsidiary has incurred any liability in connection with any Plan
under Sections 501 or 502 of ERISA, Subtitle IV of ERISA, or Chapter 43 of the
Code which would have a Material Adverse Effect, and each Plan is and has been
in compliance in all material respects with all applicable law.
SECTION 4.13. Tax Returns and Payments. (a) The Company and
its Subsidiaries have filed all foreign, federal, state and other tax returns
(or obtained extensions with respect thereto) which, to the knowledge of the
Company's officers, are required to be filed and have paid all taxes which are
shown to be due pursuant to such returns. No material income tax liability of
the Company or any of its Subsidiaries has been asserted by the Internal
Revenue Service of the United States or any foreign, state or local agency for
income taxes in excess of those already paid which is not being contested in
good faith by appropriate proceedings and for which adequate reserves have not
been created on the books of the Company and its Subsidiaries.
(b) The federal income tax liabilities, if any, of the
Company and its Subsidiaries have been finally determined by the Internal
Revenue Service and satisfied for all taxable years through the 1985 fiscal
year.
SECTION 4.14. Information. On the date hereof all
information, exhibits and reports originating from the Company and furnished in
writing to the Administrative Agent in connection with the negotiation of this
Agreement (excluding, however, any analyst or broker reports furnished to the
Administrative Agent or any Bank by any Person for their information) did not
contain any misstatement of fact or omit to state a fact, which misstatement or
omission would make the statements contained therein, taken as a whole, in the
light of the circumstances in which they were made, materially untrue or
misleading.
SECTION 4.15 Margin Stock; Use of Proceeds. (a) Neither the
Company nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U). No part of the proceeds of any Borrowing will be
used, directly or indirectly, for the purpose of purchasing or carrying or
trading in any securities under such circumstances as to involve any Borrower
or any Bank in a violation of Regulation G, T, U or X.
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(b) The Borrowers will use the proceeds of each Borrowing
for their general corporate purposes, including commercial paper backup and
acquisitions.
SECTION 4.16. Franchises and Other Rights. The Company and
each of its Subsidiaries have all franchises, permits, licenses, and other
authority (collectively, the "Operating Rights") as are necessary to enable
them to carry on their respective businesses as now being conducted, failure to
have which would in the aggregate have a Material Adverse Effect. None of the
Company or any such Subsidiary is in default under any of the Operating Rights
which default could have a Material Adverse Effect.
ARTICLE V
COVENANTS
So long as any Note shall remain unpaid or any Bank shall have
any Commitment hereunder, each Borrower covenants and agrees for itself and the
Company covenants and agrees with respect to each other Borrower as follows:
SECTION 5.01. Status. Each Borrower's payment obligations
under this Agreement rank and will at all times rank at least equally and
ratably in all respects with all its other unsecured and unsubordinated
indebtedness other than statutorily preferred indebtedness.
SECTION 5.02. Negative Pledge. (a) Except as otherwise
provided in paragraph (b) below, the Company shall not, and shall not permit
any Restricted Subsidiary to, incur any Indebtedness secured by a Lien upon (i)
any Principal Property of the Company or any Restricted Subsidiary, (ii) upon
any shares of stock other than (at all times while 25% or more of the value of
the assets of the Company or such Restricted Subsidiary, as the case may be,
consist of such margin stock) margin stock (within the meaning of Regulation U)
or (iii) any long-term receivable of the Company due from any Restricted
Subsidiary (whether such Principal Property, shares of stock or long-term
receivables are now owned or hereafter acquired) without in any such case
effectively providing concurrently with the incurrence of any such Indebtedness
that all sums payable at that time or thereafter under this Agreement (together
with, if the Company shall so determine, any other Indebtedness of the Company
or such Restricted Subsidiary then existing or thereafter created which is not
subordinate to such sums) shall be secured equally and ratably with (or at the
option of the Company, prior to) such Indebtedness, so long as such
Indebtedness shall be so secured; provided, however, that nothing in this
Section 5.02 shall prevent, restrict or apply to (and thereby shall be excluded
from secured Indebtedness in any computation under this Section 5.02)
Indebtedness secured by:
(i) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business that are not yet past due
or which are being contested by the Company in
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good faith and against which adequate reserves as required by
generally accepted accounting principles have been established by the
Company;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of worker's compensation, or to participate
in any fund in connection with worker's compensation, unemployment
insurance, old-age pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen,
carriers, or other like liens, securing obligations incurred in the
ordinary course of business that are not yet past due or which are
being contested by the Company in good faith and against which
adequate reserves as required by generally accepted accounting
principles have been established by the Company;
(iv) Liens on property, shares of stock or indebtedness of
any corporation existing at the time such corporation becomes a
Restricted Subsidiary or arising thereafter (A) otherwise than in
connection with the borrowing of money arranged thereafter and (B)
pursuant to contractual commitments entered into prior to and not in
contemplation of such corporation becoming a Restricted Subsidiary;
(v) Liens on any property (including shares of stock or
Indebtedness) existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or securing the payment
of all or any part of the purchase price or construction cost thereof
or securing any Indebtedness incurred prior to, at the time of, or
within 180 days after the acquisition of such property, shares of
stock or Indebtedness or the completion of any such construction,
whichever is later, for the purpose of financing all or any part of
the purchase price or construction cost thereof;
(vi) Liens on any property to secure all or any part of
the cost of development, operation, construction, alteration, repair
or improvement of all or any part of such property, or to secure
Indebtedness incurred prior to, at the time of or within 180 days
after, the completion of such development, operation, construction,
alteration, repair or improvement, whichever is later, for the purpose
of financing all or any part of such cost;
(vii) Liens which secure Indebtedness owing by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary or by
the Company to a Restricted Subsidiary;
(viii) Liens on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any state
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, or
in favor of any other country or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost
of construction
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of the property subject to such Liens, or in favor of any trustee or
mortgagee for the benefit of holders of indebtedness of any such
entity incurred for any such purpose;
(ix) Liens incurred in connection with tax exempt or
similar financing of pollution control, sewage or solid or hazardous
waste disposal facilities, or similarly qualified facilities;
(x) Liens existing as of September 30, 1996 and as set
out in Schedule IV; and
(xi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing sub-paragraphs (i) to (x),
inclusive, or of any Indebtedness secured thereby; provided that such
extension, renewal or replacement Lien shall be limited to all or any
part of the same property that secured the Lien extended, renewed or
replaced (plus any improvements on such property) and shall secure no
larger amount of Indebtedness than that existing at the time of such
extension, renewal or replacement.
(b) Notwithstanding the foregoing provisions of this
Section 5.02, the Company and any one or more Restricted Subsidiaries may incur
Indebtedness secured by a Lien which would otherwise be subject to the
foregoing restrictions if at the time it does so (the "Incurrence Time") the
aggregate amount of such Indebtedness plus all other Indebtedness of the
Company and its Restricted Subsidiaries secured by a Lien which would otherwise
be subject to the foregoing restrictions (not including Indebtedness permitted
to be secured under sub-paragraphs (i) through (xi) above), plus the aggregate
Attributable Debt (determined as of the Incurrence Time) of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions permitted by
paragraphs (a) and (b) of Section 5.03 entered into after the date of this
Agreement and in existence at the Incurrence Time (less the aggregate amount of
proceeds of such Sale and Leaseback Transactions which shall have been applied
in accordance with paragraph (d) of Section 5.03), does not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 5.03. Sale and Leaseback Transactions. The Company
shall not itself, and shall not permit any Restricted Subsidiary to, enter into
any arrangements after the date of this Agreement with any bank, insurance
company or other lender or investor (other than the Company or another
Restricted Subsidiary) providing for the leasing as lessee by the Company or
any such Restricted Subsidiary of any Principal Property (except a lease for a
temporary period not to exceed three years by the end of which it is intended
the use of such Principal Property by the lessee will be discontinued), which
was or is owned by the Company or a Restricted Subsidiary and which has been or
is to be sold or transferred by the Company or a Restricted Subsidiary, more
than 180 days after the completion of construction and commencement of full
operation thereof by the Company or such Restricted Subsidiary, to such lender
or investor or to any Person to whom funds have been or are to be advanced by
such lender or investor on the security of such Principal Property (herein
called a "Sale and Leaseback Transaction") unless:
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(a) the Company or such Restricted Subsidiary would (at
the time of entering into such arrangement) be entitled pursuant to
sub-paragraphs (i) through (xi) of paragraph (a) of Section 5.02,
without equally and ratably securing all sums payable at that time or
thereafter under this Agreement, to incur Indebtedness secured by a
Lien on such Principal Property; or
(b) such Sale and Leaseback Transaction relates to a
landfill or other waste disposal site (excluding any plant or similar
facility located thereon) owned by the Company or such Restricted
Subsidiary or which the Company or such Restricted Subsidiary has the
right to use; or
(c) the Attributable Debt of the Company and its
Restricted Subsidiaries in respect of such Sale and Leaseback
Transaction and all other Sale and Leaseback Transactions entered into
after the date of this Agreement (other than such Sale and Leaseback
Transactions as are permitted by paragraphs (a) and (b) of this
Section 5.03(less the aggregate amount of proceeds of such Sale and
Leaseback Transactions which shall have been applied in accordance
with paragraph (d) of this Section 5.03)), plus the aggregate
principal amount of Indebtedness secured by Liens on Principal
Properties then outstanding (excluding any such Indebtedness secured
by Liens covered in sub-paragraphs (i) through (xi) of paragraph (a)
of Section 5.02) which do not equally and ratably secure such sums,
would not exceed 10% of Consolidated Net Tangible Assets; or
(d) the Company, within 180 days after the sale or
transfer, applies or causes a Restricted Subsidiary to apply an amount
equal to the greater of the net proceeds of such sale or transfer or
fair market value of the Principal Property so sold and leased back at
the time of entering into such Sale and Leaseback Transaction (in
either case as determined by the board of directors of the Company) to
the repayment or prepayment of Loans or to the retirement of other
Indebtedness of the Company (other than Indebtedness subordinated to
the obligations of the Company under this Agreement) or Funded Debt of
a Restricted Subsidiary; provided that the amount to be so applied
shall be reduced by the principal amount of any such Indebtedness of
the Company or a Restricted Subsidiary voluntarily retired by the
Company or a Restricted Subsidiary within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in
this sub- paragraph (d) may be affected by payment at maturity.
Notwithstanding the foregoing, where the Company or any
Restricted Subsidiary is the lessee in any Sale and Leaseback Transaction,
Attributable Debt shall not include any Indebtedness resulting from the
guarantee by the Company or any other Restricted Subsidiary of the lessee's
obligation thereunder if the lessee's obligation is included in Attributable
Debt.
SECTION 5.04. Disposals. The Company will not, and will
ensure that its Subsidiaries will not (whether by a single transaction or a
number of related transactions and whether
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at one time or over a period of time) sell or otherwise dispose of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole.
SECTION 5.05. Merger and Consolidation. No Borrower shall
merge into or consolidate with any Person and no Borrower shall permit any
Person to merge into or consolidate with such Borrower unless:
(a) in case a Borrower shall merge into or consolidate
with another corporation, the corporation formed by such consolidation
or into which such Borrower is merged or consolidated shall be a
corporation organized and existing under the laws of the jurisdiction
of such Borrower, or under the laws of the United States of America,
any state thereof or the District of Columbia and, if such Borrower is
not the survivor, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Administrative Agent, in form
satisfactory to the Majority Banks the due and punctual payment of all
sums payable at that time or thereafter under this Agreement and the
performance of every covenant of such Borrower contained in this
Agreement to be performed or observed; and
(b) immediately after giving effect to such transaction
and treating any Indebtedness which becomes an obligation of such
Borrower or a Subsidiary as a result of such transaction as having
been incurred by such Borrower or such Subsidiary at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing;
provided, however, that the undertaking of the Banks to make Loans to the
Company shall not inure to the benefit of any successor or assign of the
Company, including any successor or assign by merger or consolidation, unless
the Company is the surviving entity.
SECTION 5.06. Financial Covenants. The Company shall not
permit Consolidated Net Worth (i) at any time during the fiscal year ending
September 30, 1997 to be less than $1,576,912,000 and (ii) at any time during
each fiscal year thereafter to be less than an amount equal to the sum of (A)
the amount of Consolidated Net Worth required under this Section 5.06 for the
immediately preceding fiscal year plus (B) 20% of Consolidated Net Income for
such immediately preceding fiscal year; provided, however, if Consolidated Net
Income in any such preceding fiscal year is less than zero, the amount to be
aggregated for such fiscal year shall be zero.
SECTION 5.07. Financial Statements and Other Information.
The Company shall maintain a system of accounting in accordance with generally
accepted accounting principles and practices and will furnish to the
Administrative Agent (with a sufficient number of copies for each Bank):
(a) as soon as available, and in any case within 120 days
after the end of each fiscal year of the Company, the consolidated
balance sheet of the Company as of the close of such fiscal year, and
the related consolidated statement of operations, common stockholders'
equity and cash flows (or such other related statements as the Company
shall
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prepare in accordance with generally accepted accounting principles
and practices) for the Company for such year, setting forth, in
comparative form, the corresponding figures from the preceding fiscal
year, audited by independent public accountants selected by the
Company;
(b) as soon as available, and in any case within 60 days
after the end of each of the first three fiscal quarters of each
fiscal year of the Company, the consolidated balance sheet of the
Company as of the end of such quarter, the related consolidated
statement of operations for the Company for such fiscal quarter and
for the fiscal year to date, and the consolidated statement of cash
flows (or such other related statements as the Company shall prepare
in accordance with generally accepted accounting principles and
practices) for the Company for the fiscal year to date;
(c) at the time of each delivery of a balance sheet
pursuant to the foregoing paragraphs (a) and (b), a certificate of an
authorized Financial Officer of the Company stating that no Default or
Event of Default shall have occurred and be continuing, and setting
forth computations in reasonable detail showing, as at the date of
such balance sheet, whether or not there was compliance with the
financial covenant contained in Section 5.06;
(d) promptly after their becoming available, (i) copies
of all financial statements, reports and proxy statements which the
Company shall have sent to its stockholders generally; and (ii) copies
of all registration statements (other than registration statements on
Form S-8 or any successor form) and regular and periodic reports
(other than reports on Form 11-K or any successor form), if any, which
the Company shall have filed with the Securities and Exchange
Commission or any governmental agency or agencies substituted
therefor, or any similar or corresponding governmental department,
commission, board, bureau or agency, federal, state or foreign, or
(except for routine listing applications) with any national securities
exchange, provided that these obligations do not extend to documents
filed and not available for public inspection;
(e) prior to announcing that any Borrower will use the
proceeds of any Borrowing to acquire or attempt to acquire any Person
in a Hostile Acquisition, a notice thereof together with the identity
of such Person; and
(f) such other information relating to the performance of
the provisions of this Agreement by any Borrower or to the business
and financial position of any Borrower or any of its Subsidiaries as
the Administrative Agent or any Bank (through the Administrative
Agent) may from time to time reasonably request, including information
concerning material legal proceedings and such legal opinions and/or
other documents relevant in the context of or relating to this
Agreement as the Administrative Agent may reasonably request.
SECTION 5.08. Payment of Taxes. Each Borrower will pay and
discharge, and cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges
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or levies imposed upon it or upon its income and profits, or upon any property
belonging to it, prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a Lien upon any material property
of such Borrower or such Subsidiary not permitted by Section 5.02(a)(i),
provided that neither any Borrower nor any such Subsidiary shall be required to
pay any such tax, assessment, charge, levy or claim the payment of which is
being contested in good faith and by proper proceedings and in respect of which
such Borrower has provided adequate reserves on its books.
SECTION 5.09. Insurance. To the extent such insurance shall
be available on commercially reasonable terms, each Borrower shall, and shall
cause its Subsidiaries to, keep adequately insured by financially sound and
reputable insurers, or by way of adequate self-insurance, all risks of loss of
a character usually insured by corporations of comparable size and financial
strength and with comparable risks.
SECTION 5.10. Maintenance of Existence. (a) Each Borrower
will preserve and maintain its corporate existence in good standing; provided,
however, that nothing herein shall prevent any merger or consolidation
permitted by Section 5.05;
(b) The Company will cause each of its Subsidiaries
(other than the Borrowing Subsidiaries) to preserve and maintain its corporate
existence in good standing, if the failure to do so could have a Material
Adverse Effect; and
(c) Each Borrower will and will cause each of its
Subsidiaries to qualify and remain qualified to do business as a foreign
corporation in each jurisdiction in which the character of the properties owned
or leased by it therein or in which the transaction of its business is such
that failure to qualify has or could have a Material Adverse Effect.
SECTION 5.11. Compliance with Applicable Laws. Each Borrower
will comply, and cause each of its Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority of the United States of America and such other state,
local and other national jurisdictions to which such Borrower or any such
Subsidiary may be subject, a breach of which has or could have a Material
Adverse Effect. Without prejudice to the generality of the foregoing sentence,
no Borrower will apply the proceeds of any Loan in such a way that would result
in the violation by such Borrower or any Bank of the provisions of Regulation
U, T, G or X.
SECTION 5.12. Notices of Default. Each Borrower will furnish
to the Administrative Agent, immediately upon becoming aware of the existence
of any Default or Event of Default, a written notice specifying the nature and
period of existence thereof and what action such Borrower is taking or proposes
to take with respect thereto.
SECTION 5.13. Inspection. Each Borrower shall permit an
authorized representative or representatives of the Administrative Agent or any
of the Banks to visit and inspect at all
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reasonable times, at the risk and expense of the inspecting party, any of the
properties of such Borrower or its Subsidiaries, including its books, and to
make extracts therefrom (subject to any confidentiality agreements, copyright
laws and similar requirements) and to discuss the affairs, finances, and
accounts of such Borrower or its Subsidiaries with its officers and employees.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Company or any Borrowing Subsidiary shall fail to
pay (i) any installment of principal of any Note on the date on which
such payment is due or (ii) any payment of interest on any such Note
or any other amount due hereunder within three Business Days after
notice of such non-payment has been given to the Company by the
Administrative Agent; or
(b) Any representation or warranty made or, pursuant to
Article III, deemed made by or on behalf of any of the Borrowers
herein or in any document, certificate or financial statement
delivered in connection with this Agreement shall prove to have been
incorrect in any material respect when made or deemed made and the
same remains incorrect for a period of 30 days after the earlier of
written notice thereof shall have been given to the Company by the
Administrative Agent or any Bank or discovery thereof by the senior
financial officer or senior operating officer of such Borrower; or
(c) Any Borrower shall fail to perform or observe any
covenant contained in Section 5.04, 5.05, 5.06 or 5.10(a) of this
Agreement; or
(d) Any Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement and any
such failure shall remain unremedied for 30 calendar days after the
earlier of written notice of such failure shall have been given to the
Company by the Administrative Agent or any Bank or discovery of such
failure by the senior financial officer or senior operating officer of
such Borrower; or
(e) The Company or any of its Subsidiaries shall (i)
default in the payment of any Indebtedness (excluding Indebtedness
evidenced by the Notes) of the Company or such Subsidiary (as the case
may be), or any interest or premium thereon, when due whether by
acceleration or otherwise beyond any period of grace provided with
respect thereto or (ii) default in the performance or observance of
any other term or condition with respect to such other Indebtedness if
the effect of such default is to accelerate the maturity of such
Indebtedness or any such Indebtedness shall be declared due and
payable or is required to
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be prepaid (other than by a regularly scheduled required prepayment or
as a result of the giving of notice of a voluntary prepayment) prior
to the stated maturity thereof, if in the case of any defaults
described in clauses (i) and (ii) of this Section 6.01(e), the
aggregate principal amount of all such Indebtedness for which all such
defaults shall have occurred and be continuing exceeds $50,000,000;
provided, however (at all times while 25% or more of the value of the
assets of the Company or such other Person, as the case may be,
consist of margin stock), a default for purposes of this Section
6.01(e) shall not be deemed to exist by reason of the acceleration of
the maturity of any such obligation to a Bank or an affiliate (within
the meaning of Regulation U) of a Bank solely by reason of a default
in the performance of a term or condition in any agreement or
instrument under or by which such obligation is created, evidenced or
secured, which term and condition restricts the right of the Company
or any other Person to sell, pledge or otherwise dispose of any margin
stock (within the meaning of Regulation U) held by the Company or such
other Person; or
(f) Any Borrower or any Principal Subsidiary shall admit
in writing its inability to pay, or generally shall not be paying, its
debts as such debts become due; or
(g) Any Borrower or any Principal Subsidiary shall (i)
apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the
application or consent of any Borrower or any Principal Subsidiary in
any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of such Borrower or such
Principal Subsidiary or of all or any substantial part of its assets
or (iii) similar relief in respect of such Borrower or such Principal
Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustments of debts,
and such proceeding or case shall continue undismissed, for a period
of 90 days; or an order for relief against any Borrower or any
Principal Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(i) A final judgment or judgments for the payment of
money shall be rendered by a court or courts against any Borrower or
any Principal Subsidiary in excess of $50,000,000 in the aggregate for
all such judgments and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within the appeal time provided by law and such
Borrower or such Principal
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Subsidiary, as the case may be, shall not, within said period, or such
longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(j) (i) Any finding or determination shall be made by the
PBGC that any Borrower has satisfied the criteria for a distress
termination with respect to a Plan under Section 4041(c) of ERISA, or
(ii) (A) any fact or circumstance shall occur with respect to a Plan
which, in the opinion of the Majority Banks, provides grounds for the
commencement of any proceeding under Section 4042 of ERISA, (B) any
proceeding shall be commenced with respect to a Plan under Section
4042 of ERISA, or (C) any Plan termination or any full or partial
withdrawal from a Plan or Plans shall occur, which event described in
subparagraph (A), (B), or (C), individually or in combination with any
other such event(s), could result in liability of any Borrower or any
Principal Subsidiary to the PBGC or to the Plan or Plans in the
aggregate amount of $20,000,000 or more, or (iii) the actuarial
present value of unfunded vested benefits under all Plans shall exceed
$50,000,000;
then, (x) if any Event of Default described in Section 6.01(g) or Section
6.01(h) shall occur and be continuing, all Notes then outstanding hereunder and
interest accrued thereon and all liabilities hereunder shall thereupon
automatically become and be immediately due and payable without presentment,
demand, protest, notice of intent to accelerate, or other notice of any kind to
any Borrower, all of which are hereby expressly waived, the Commitments (if
still in existence) shall thereupon terminate and the Banks shall be under no
further obligation to make Loans hereunder, and (y) if any other Event of
Default shall occur and be continuing, the Administrative Agent shall (1) if
requested by the Majority Banks, by notice to the Borrower, terminate the
Commitments (if still in existence) and they shall thereupon terminate, and (2)
if requested by the Majority Banks, by notice to the Borrower, declare all
Notes then outstanding hereunder and interest accrued thereon and all
liabilities of the Borrowers thereunder to be immediately due and payable, and
the same shall thereupon become and be forthwith due and payable without
presentment, demand, protest, notice of intent to accelerate, or other notice
of any kind to any Borrower or any other Person, all of which are hereby
expressly waived by the Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Except as expressly
provided in Section 7.06, each Bank hereby irrevocably appoints and authorizes
the Administrative Agent to act on its behalf and to exercise such powers under
this Agreement as are specifically delegated to or required of it by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement or the Notes
(including enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected
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in so acting or refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and all holders of
Notes; provided, however, that the Administrative Agent shall not be required
to take any action which exposes the Administrative Agent to personal liability
or which is contrary to this Agreement or applicable law.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement (including the Guaranty) or the
Notes (a) with the consent or at the request of the Majority Banks or (b) in
the absence of its or their own gross negligence or willful misconduct (IT
BEING THE EXPRESS INTENTION OF THE PARTIES THAT THE ADMINISTRATIVE AGENT AND
ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES SHALL HAVE NO
LIABILITY FOR ACTIONS AND OMISSIONS UNDER THIS SECTION 7.02 RESULTING FROM
THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE). Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may treat the payee
of each Note as the holder thereof until the Administrative Agent receives
written notice of the assignment or transfer thereof signed by such payee and
in form satisfactory to the Administrative Agent; (ii) may consult with legal
counsel (including counsel for the Borrowers), independent public accountants
and other experts selected by it and shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (iii) makes no warranty or representation
to any Bank and shall not be responsible to any Bank for any statements,
warranties or representations made in or in connection with this Agreement or
any Note by any other Person; (iv) except as otherwise expressly provided
herein, shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any Note or to inspect the property (including the books and
records) of any Borrower; (v) except for its own due execution and delivery
thereof (as applicable) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement (including the Guaranty) or any Note or any other
instrument or document furnished pursuant hereto or thereto; and (vi) shall
incur no liability under or with respect of this Agreement or any Note by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopier, cable or telex) reasonably believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Credit Suisse and Affiliates. Credit Suisse
shall have the same rights and powers under this Agreement or any Note as any
other Bank and may exercise the same as though it were not the Administrative
Agent. The term "Bank" or "Banks" shall, unless otherwise expressly indicated,
include Credit Suisse, in its individual capacity. Credit Suisse and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, any Borrower,
any of the Subsidiaries and any Person who may do business with or own
securities of the Company or of its Subsidiaries, all as if Credit Suisse was
not the Administrative Agent and without any duty to account therefor to the
Banks.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges
and agrees that it has, independently and without reliance upon the
Administrative Agent or any other Bank and
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based on the financial statements referred to in Section 4.07 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also
acknowledges and agrees that it will, independently and without reliance upon
the Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
Notes.
SECTION 7.05. Administrative Agent's Indemnity. The
Administrative Agent shall not be required to take any action hereunder or to
prosecute or defend any suit in respect of this Agreement (including the
Guaranty) or the Notes unless indemnified to the Administrative Agent's
satisfaction by the Banks against loss, cost, liability and expense. If any
indemnity furnished to the Administrative Agent shall become impaired, the
Administrative Agent may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given. In addition, the
Banks agree to indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Notes then held by each of them (or if no Notes are at the time outstanding,
ratably according to either (i) the respective amount of their Commitments, or
(ii) if no Commitments are outstanding, the respective amounts of the
Commitments immediately prior to the time the Commitments ceased to be
outstanding), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement, the Guaranty or any action taken or omitted by the
Administrative Agent under this Agreement, the Guaranty or the Notes (including
any action taken or omitted under Article II of this Agreement); provided that
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. EACH BANK AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS UNDER
THIS SECTION 7.05, TO INDEMNIFY THE ADMINISTRATIVE AGENT RATABLY AS AFORESAID
FOR ALL SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR RESULTING
FROM THE ADMINISTRATIVE AGENT'S SOLE OR CONTRIBUTORY NEGLIGENCE. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out- of-pocket expenses
(including reasonable counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, administration, or enforcement of,
or legal advice in respect of rights or responsibilities under, this Agreement
(including the Guaranty) and the Notes to the extent that the Administrative
Agent is not reimbursed for such expenses by the Company. The provisions of
this Section 7.05 shall survive the termination of this Agreement and/or the
payment or assignment of any of the Notes.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks, and the Borrowers and may be removed as Administrative Agent under
this Agreement and the Notes at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks (with the
approval of the Company, which approval shall not be unreasonably withheld)
shall have the right
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to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Majority Banks, and shall have
accepted such appointment, within 30 calendar days after the retiring
Administrative Agent's giving of a notice of resignation or the Majority Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent (with the approval of the Company, which approval shall not be
unreasonably withheld) may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any state thereof and
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder and under the
Notes by a successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the Notes. After any retiring Administrative Agent's
resignation or removal as Administrative Agent hereunder and under the Notes,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement and the Notes.
SECTION 7.07. Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent shall
have received notice from a Bank or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." If the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Banks; provided, however,
if such notice is received from a Bank, the Administrative Agent also shall
give notice thereof to the Company for itself and on behalf of the other
Borrowers. The Administrative Agent shall be entitled to take action or
refrain from taking action with respect to such Default or Event of Default as
provided in Section 7.01 and Section 7.02.
ARTICLE VIII
GUARANTY
In consideration of the premises and in order to induce the
Banks to make Loans hereunder to the Borrowing Subsidiaries:
SECTION 8.01. Guaranty. The Company hereby unconditionally
and irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each Borrowing
Subsidiary to pay the principal of and interest on the Notes of such Borrowing
Subsidiary (including interest accruing or becoming owing both prior to and
subsequent to the commencement of any proceeding against or with respect to
such Borrowing Subsidiary under any chapter of the Bankruptcy Code of 1978 (11
U.S.C. Section 101 et seq.), as from time to time amended, or any similar
statute in any other jurisdiction), and all other amounts from time to time
payable by such Borrowing Subsidiary under this Agreement and the Notes of such
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Borrowing Subsidiary (such obligations with respect to the Borrowing
Subsidiaries being herein called the "Guaranteed Obligations"), and agrees to
pay any and all reasonable costs and expenses incurred by each Bank and the
Administrative Agent in enforcing any rights under this guaranty (including the
reasonable fees and expenses of outside counsel or the reasonable allocated
costs of in-house counsel). This guaranty is an absolute, irrevocable,
unconditional, present and continuing guaranty of payment and not of
collectibility and is in no way conditioned or contingent upon any attempt to
collect from any Borrowing Subsidiary, or any other action, occurrence or
circumstance whatsoever.
SECTION 8.02. Guaranty Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of this Agreement and the Notes of the Borrowing Subsidiaries. The Company
agrees that the Guaranteed Obligations and the Notes, this Agreement and all
other instruments and agreements applicable to the Company and the Borrowing
Subsidiaries (the Notes, this Agreement and all such other instruments and
agreements being hereinafter referred to in this Article VIII as the
"Documents") may be extended or renewed, and Loans repaid and reborrowed in
whole or in part, without notice to or assent by the Company, and that it will
remain bound upon this guaranty notwithstanding any extension, renewal or other
alteration of any Guaranteed Obligations or Documents, or any repayment and
reborrowing of Loans. To the maximum extent permitted by applicable law,
except as expressly provided in this Agreement, the obligations of the Company
under this guaranty shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms hereof under any
circumstances whatsoever, including:
(a) any extension, renewal, modification, settlement,
compromise, waiver or release in respect of any Guaranteed
Obligations;
(b) any extension, renewal, amendment, modification,
rescission, waiver or release in respect of any of the Documents;
(c) any release, exchange, substitution, non-perfection
or invalidity of, or failure to exercise rights or remedies with
respect to, any direct or indirect security for any Guaranteed
Obligations, including the release of any Borrowing Subsidiary or
other Person liable on any Guaranteed Obligations;
(d) any change in the corporate existence, structure or
ownership of the Company, any Borrowing Subsidiary or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Company, any Borrowing Subsidiary or any of their respective assets;
(e) the existence of any claim, defense, set-off or other
rights or remedies which any Borrowing Subsidiary at any time may have
against the Company, or the Company or such Borrowing Subsidiary may
have at any time against the Administrative Agent, any Bank, any other
Borrowing Subsidiary or any other Person, whether in connection with
this
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Agreement, the Documents, the transactions contemplated thereby or any
other transaction other than by the payment in full by the Borrowing
Subsidiaries of the Guaranteed Obligations after the termination of
the Commitments of the Banks;
(f) any invalidity or unenforceability for any reason of
this Agreement or any other Document, or any provision of law
purporting to prohibit the payment or performance by the Company or
any Borrowing Subsidiary of the Guaranteed Obligations or Loan
Documents, or of any other obligation to the Administrative Agent or
any Bank; or
(g) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing.
SECTION 8.03. Effect of Debtor Relief Laws. If after receipt
of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of the Guaranteed Obligations, the
Administrative Agent or any Bank is for any reason compelled to surrender or
voluntarily surrenders, such payment or proceeds to any Person (a) because such
payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference,
fraudulent conveyance, fraudulent transfer, impermissible set-off or a
diversion of trust funds or (b) for any other reason, including (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Administrative Agent, any Bank or any of their respective
properties or (ii) any settlement or compromise of any such claim effected by
the Administrative Agent or any Bank with any such claimant (including any
Borrowing Subsidiary), then the Guaranteed Obligations or part thereof intended
to be satisfied shall be reinstated and continue, and this guaranty shall
continue in full force as if such payment or proceeds had not been received,
notwithstanding any revocation thereof or the cancellation of any Note or any
other instrument evidencing any Guaranteed Obligations or otherwise; and the
Company shall be liable to pay the Administrative Agent and the Banks, and
hereby does indemnify the Administrative Agent and the Banks and hold them
harmless for the amount of such payment or proceeds so surrendered and all
expenses (including reasonable attorneys' fees, court costs and expenses
attributable thereto) incurred by the Administrative Agent or any Bank in the
defense of any claim made against it that any payment or proceeds received by
the Administrative Agent or any Bank in respect of all or part of the
Guaranteed Obligations must be surrendered. The provisions of this paragraph
shall survive the termination of this Agreement, and any satisfaction and
discharge of the Borrowing Subsidiaries by virtue of any payment, court order
or any federal or state law.
SECTION 8.04. Subrogation. Notwithstanding any payment or
payments made by the Company hereunder, or any set-off or application by the
Administrative Agent or any Bank of any security or of any credits or claims,
the Company will not assert or exercise any rights of the Administrative Agent
or any Bank or of the Company against any Borrowing Subsidiary to recover the
amount of any payment made by the Company to the Administrative Agent or any
Bank hereunder by way of any claim, remedy or subrogation, reimbursement,
exoneration, contribution, indemnity, participation or otherwise arising by
contract, by statute, under common law or
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otherwise, and the Company shall not have any right of recourse to or any claim
against assets or property of any Borrowing Subsidiary, until all of the
obligations of the Company and the Borrowing Subsidiaries under the Documents
are paid in full. If any amount shall nevertheless be paid to the Company by a
Borrowing Subsidiary prior to payment in full of the obligations of the Company
and such Borrowing Subsidiary under the Documents, such amount shall be held in
trust for the benefit of the Administrative Agent and the Banks and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Agreement, and any satisfaction
and discharge of the Borrowing Subsidiaries by virtue of any payment, court
order or any federal or state law.
SECTION 8.05. Subordination. If the Company becomes the
holder of any indebtedness payable by a Borrowing Subsidiary, the Company
hereby subordinates all indebtedness owing to it from such Borrowing Subsidiary
to all indebtedness of such Borrowing Subsidiary to the Administrative Agent
and the Banks, and agrees that during the continuance of any Default or Event
of Default it shall not accept any payment on the same until payment in full of
the obligations of such Borrowing Subsidiary under this Agreement and the other
Documents after the termination of the Commitments of the Banks, and shall in
no circumstance whatsoever attempt to set-off or reduce any obligations
hereunder because of such indebtedness. If any amount shall nevertheless be
paid to the Company by a Borrowing Subsidiary prior to payment in full of the
Guaranteed Obligations, such amount shall be held in trust for the benefit of
the Administrative Agent and the Banks and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured.
SECTION 8.06. Waiver. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this guaranty and waives presentment, demand of
payment, notice of intent to accelerate, notice of dishonor or nonpayment and
any requirement that the Administrative Agent or any Bank institute suit,
collection proceedings or take any other action to collect the Guaranteed
Obligations, including any requirement that the Administrative Agent or any
Bank protect, secure, perfect or insure any Lien against any property subject
thereto or exhaust any right or take any action against any Borrowing
Subsidiary or any other Person or any collateral (it being the intention of the
Administrative Agent, the Banks and the Company that this guaranty is to be a
guaranty of payment and not of collection). It shall not be necessary for the
Administrative Agent or any Bank, in order to enforce any payment by the
Company hereunder, to institute suit or exhaust its rights and remedies against
any Borrowing Subsidiary or any other Person, including others liable to pay
any Guaranteed Obligations, or to enforce its rights against any security ever
given to secure payment thereof. The Company hereby expressly waives to the
maximum extent permitted by applicable law each and every right to which it may
be entitled by virtue of the suretyship laws of the State of Texas, including
any and all rights it may have pursuant to Rule 31, Texas Rules of Civil
Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and
Chapter 34 of the Texas Business and Commerce Code. The Company hereby waives
marshaling of assets and liabilities, notice by the Administrative Agent or any
Bank of any indebtedness or liability to which such Bank applies
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or may apply any amounts received by such Bank, and of the creation,
advancement, increase, existence, extension, renewal, rearrangement or
modification of the Guaranteed Obligations. The Company expressly waives, to
the extent permitted by applicable law, the benefit of any and all laws
providing for exemption of property from execution or for valuation and
appraisal upon foreclosure.
SECTION 8.07. Full Force and Effect. This Guaranty is a
continuing guaranty and shall remain in full force and effect until all of the
obligations of the Company and the Borrowing Subsidiaries under this Agreement
and the other Documents and all other amounts payable under this guaranty have
been paid in full (after the termination of the Commitments of the Banks). All
rights, remedies and powers provided in this guaranty may be exercised, and all
waivers contained in this guaranty may be enforced, only to the extent that the
exercise or enforcement thereof does not violate any provisions of applicable
law which may not be waived.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any Note, nor consent to any departure by any
Borrower herefrom or therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Banks in all cases, and then, in
any case, such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following; (a) waive any of the conditions specified in
Article III; provided, however, any amendment or waiver of any provision of
Article IV (other than Section 4.15), Article V or Article VI signed by the
Majority Banks shall not constitute a waiver of the conditions of Article III,
(b) except as expressly provided in Section 2.12(d), Section 2.13(f) or
Section 2.14(c), reduce or increase the amount or alter the terms of the
Commitments of any Bank or subject any Bank to any additional obligations, (c)
reduce the principal of, or rate or amount of interest applicable to, any Loan
other than as provided in this Agreement, or any fees hereunder, (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes or
any fees hereunder, (e) change this Section 9.01 or Section 4.15 or the last
sentence of Section 9.11(a) or any provision of Article VIII, (f) release the
Guaranty, or (g) change the definitions of "Applicable Differential,"
"Applicable Fee Percentage," "Majority Banks" or "Majority Committed Banks"
contained in Section 1.01 or otherwise change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Notes, or the number of
Banks, which shall be required for the Banks or any of them to take any action
hereunder; provided that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Banks
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) The Administrative Agent,
any Bank, or the holder of any Note, giving consent or notice or making any
request of any Borrower provided for hereunder,
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shall notify each Bank and the Administrative Agent thereof. In the event that
the holder of any Note (including any Bank) shall transfer such Note, it shall
promptly so advise the Administrative Agent which shall be entitled to assume
conclusively that no transfer of any Note has been made by any holder
(including any Bank) unless and until the Administrative Agent receives written
notice to the contrary. Notices, consents, requests, approvals, demands and
other communications (collectively, "Communications") provided for herein shall
be in writing (including telecopy, telegraphic, telex or cable Communications)
and mailed, telecopied, telegraphed, telexed, cabled or delivered:
(i) If to any Borrower, to it:
c/o Browning-Ferris Industries, Inc.
757 North Eldridge
Houston, Texas 77079
Telex Number: 794-592 (Answerback BFI HOU)
Telecopy Number: (281) 584-8622
Attention: Treasurer
(ii) If to the Administrative Agent, to it at:
Credit Suisse
Eleven Madison Avenue
New York, New York 10010
Telephone Number: (212) 325-9927
Telecopy Number: (212) 325-8304
Attention: Julia Kingsbury
(b) If to any Bank, as specified on the signature page
for such Bank hereto or, in the case of any Person who becomes a Bank after the
date hereof, as specified in the Administrative Questionnaire of such Person,
on the signature page of the Assignment and Acceptance executed by such Bank
or, in the case of any party, such other address, telecopy or telex number as
such party may hereafter specify for such purpose by notice to the other
parties. All Communications shall, when mailed, telecopied, telegraphed,
telexed, cabled or delivered, be effective when deposited in the mails, sent by
telecopier to any party to the telecopier number as set forth herein or on the
signature page hereof or on the signature page of the Assignment and
Acceptances (or other telecopy number designated by such party in a
Communication to the other parties hereto) and receipt thereof is acknowledged
by such party, delivered to the telegraph company, telexed to any party to the
telex number set forth herein or on the signature page hereof or on the
signature page of the Assignment and Acceptances (or other telex number
designated by such party in a Communication to the other parties hereto),
confirmed by telex answerback, or delivered to the cable company, respectively;
provided, however, Communications to the Administrative Agent pursuant to
Article II or Article VII shall not be effective until received by the
Administrative Agent.
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(c) If any notice required under this Agreement is
permitted to be made, and is made, by telephone, actions taken or omitted to be
taken in reliance thereon by the Administrative Agent or any Bank shall be
binding upon the Borrower delivering such notice notwithstanding any
inconsistency between the notice provided by telephone by a Person that
identifies himself or herself as the Treasurer, any Assistant Treasurer,
Director of Finance or Treasury Analyst of the Company and any subsequent
writing in confirmation thereof provided to the Administrative Agent or such
Bank; provided that any such action taken or omitted to be taken by the
Administrative Agent or such Bank shall have been in good faith and in
accordance with the terms of this Agreement.
(d) Notwithstanding anything to the contrary contained in
this Agreement or any Note (i) any notice to the Borrowers or to any one of
them required under this Agreement or such Note that is delivered to the
Company shall constitute effective notice to the Borrowers or to any such
Borrower, including the Company and (ii) any Committed Borrowing Request or any
notice of Conversion delivered pursuant to Section 2.09 may be delivered by any
Borrower or by the Company, on behalf of any other Borrowers. Each Borrowing
Subsidiary hereby irrevocably appoints the Company as its authorized agent to
receive and deliver notices in accordance with this Section 9.02, and hereby
irrevocably agrees that (A) in the case of clause (i) of the immediately
preceding sentence, the failure of the Company to give any notice referred to
therein to any such Borrower or any such Borrowing Subsidiary, as the case may
be, to which such notice applies shall not impair or affect the validity of
such notice with respect thereto and (B) in the case of clause (ii) of the
immediately preceding sentence, the delivery of any such notice by the Company,
on behalf of any other Borrower, shall be binding on such other Borrower to the
same extent as if such notice had been executed and delivered directly by such
Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder (including the Guaranty) or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such
right, or any abandonment or discontinuance of any steps to enforce such right,
preclude any other or further exercise thereof or the exercise of any other
right. No notice to or demand on any Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 9.04. Costs, Expenses and Taxes. (a) The Company
agrees to pay on demand: (i) all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery
and administration of this Agreement (including the Guaranty), the Notes and
the other documents to be delivered hereunder, including the reasonable fees
and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities under this Agreement (including the Guaranty) and the
Notes, and any modification, supplement or waiver of any of the terms of this
Agreement and (ii) all reasonable costs and expenses of each of the Banks and
the Administrative Agent (including reasonable counsel fees and expenses of
outside counsel or the reasonable allocated costs of in-house legal services)
in connection with the enforcement of this
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Agreement and the Notes. In addition, the Company shall pay any and all stamp
and similar taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement and the Notes and the other documents
to be delivered hereunder, and agrees to save the Administrative Agent and each
Bank harmless from and against any and all liabilities with respect to or
resulting from any delay in payment or omission to pay such taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of this Agreement or any Note. Without prejudice to the
survival of any other obligations of the Company hereunder and the Notes, the
obligations of the Company under this Section 9.04 shall survive the
termination of this Agreement and/or the payment or assignment of the Notes.
(b) If, (i) due to payments made by a Borrower due to
acceleration of the maturity of the Notes pursuant to Section 6.01, or due to
any other reason, any Bank receives payments of principal of any Fixed Rate
Loan or Eurodollar Rate Loan, other than on the last day of the Interest Period
for such Loan, or (ii) on any Borrowing Date a Borrower shall fail to fulfill
the applicable conditions set forth in Article III, or (iii) a Borrower shall
fail to borrow hereunder after a Committed Borrowing Request pursuant to
Article II has been given or after Competitive Bids have been accepted, such
Borrower shall, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Bank any amounts required to compensate such Bank for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment or
failure to borrow, as the case may be, including any loss, cost or expense
incurred or sustained in liquidating or employing deposits or other funds
acquired by any Bank to effect, fund or maintain any such Loan.
SECTION 9.05. Indemnity.
(a) The Company shall indemnify the Administrative Agent,
the Banks and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or result
from (i) this Agreement or any actual or proposed use by the Borrowers of the
proceeds of any extension of credit by any Bank hereunder or breach by any
Borrower of this Agreement or any other documents executed in connection with
this Agreement or (ii) any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, and the Company shall reimburse the Administrative Agent and each
Bank, and each Affiliate thereof and their respective directors, officers,
employees and agents, upon demand for any expenses (including legal fees)
reasonably incurred in connection with any such investigation or proceeding;
but excluding any such losses, liabilities, claims, damages or expenses
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified. Promptly after receipt by any Bank or the Administrative
Agent of notice of the commencement of any investigation, litigation or
proceeding in respect of which indemnity may be sought from the Company under
this Section 9.05, such Bank or the Administrative Agent will notify the
Company in writing of the commencement thereof. Subject to the provisions
hereinafter stated, the Company shall be entitled to participate in, and may,
if it so elects, upon delivery to each of the Banks of a written undertaking
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by the Company in form and substance acceptable to the Administrative Agent
that the Company will not contest the rights of the Bank or the Administrative
Agent to indemnification in connection with such investigation, litigation or
proceeding, maintain or assume the defense of any such investigation,
litigation or proceeding (including the employment of counsel, who shall be
counsel satisfactory to each such Bank or the Administrative Agent involved
therein, whether or not as a party), and the payment of expenses thereof. If
the defense of such investigation, litigation or proceeding is assumed by the
Company, each of such Banks or the Administrative Agent shall have the right to
employ separate counsel and to participate in the defense thereof but the fees
and expenses of such counsel shall not be at the expense of the Company unless
the employment of such counsel has been specifically authorized in writing by
the Company. Notwithstanding the foregoing, the Administrative Agent shall at
any time have the right to employ counsel to represent such Banks and the
Administrative Agent in any such investigation, litigation or proceeding if, in
the reasonable judgment of the Administrative Agent, such is advisable, in
which event the fees and expenses of such separate counsel shall be borne by
the Company, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for all indemnified parties. The
Company shall not be liable to indemnify any Person for any settlement of such
action effected without the Company's consent.
(b) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT
IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE
INDEMNIFIED HEREUNDER OR THEREUNDER SHALL BE INDEMNIFIED AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR DAMAGES ARISING OUT OF OR
RESULTING FROM THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON.
Without prejudice to the survival of any other obligations of the Company
hereunder and the Notes, the obligations of the Company under this Section 9.05
shall survive the termination of this Agreement and/or the payment or
assignment of the Notes.
SECTION 9.06. Right of Setoff. If any Event of Default shall
have occurred and be continuing, each Bank 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 Bank or any
branch, subsidiary or Affiliate of such Bank to or for the credit or the
account of the Company or any other Borrower against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement and
any Note held by such Bank, irrespective of whether or not such Bank or the
Administrative Agent shall have made any demand under this Agreement or such
Note and although such obligations may be unmatured. Each Bank agrees promptly
to notify such Borrower after any such setoff and application made by such Bank
or any branch, subsidiary or Affiliate of such Bank, but the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each Bank under this Section 9.06 are in addition to other rights and
remedies (including other rights of setoff) which such Bank may have.
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SECTION 9.07. Governing Law. This Agreement, all Notes and
all other documents executed in connection herewith (including the
Administrative Agent's Letter), shall be deemed to be contracts and agreements
executed by the parties hereto under the laws of the State of Texas and of the
United States and for all purposes shall be construed in accordance with, and
governed by, the laws of said state and the of the United States. Without
limitation of the foregoing, nothing in this Agreement or in the Notes shall be
deemed to constitute a waiver of any rights which any Bank may have under
applicable federal legislation relating to the amount of interest which such
Bank may contract for, take, receive or charge in respect of any Loans,
including any right to take, receive, reserve and charge interest at the rate
allowed by the law of the state where such Bank is located. The Administrative
Agent, the Banks and the Borrowers further agree that insofar as the provisions
of Article 1.04, Subtitle 1, Title 79, of the Revised Civil Statutes of Texas,
1925, as amended, are applicable to the determination of the Highest Lawful
Rate with respect to the Notes, the indicated rate ceiling computed from time
to time pursuant to Section (a) of such Article shall apply to the Notes;
provided, however, that to the extent permitted by such Article, the
Administrative Agent may from time to time by notice from the Administrative
Agent to the Borrowers revise the election of such interest rate ceiling as
such ceiling affects the then current or future balances of the Loans
outstanding under the Notes. The provisions of Chapter 15 of Subtitle 3 of the
said Title 79 do not apply to this Agreement or any Note.
SECTION 9.08. Usury Not Intended. The Borrowers and the
Banks intend to strictly comply with all applicable laws, including Applicable
Laws. Accordingly, the provisions of this Section 9.08 shall govern and
control over every other provision of this Agreement, of any Note or the
Administrative Agent's Letter whenever executed, which conflicts or is
inconsistent with this Section 9.08, even if such provision declares that it
controls (unless such provision expressly identifies and refers to this Section
9.08 and specifically states that it will control over this Section 9.08). As
used in this Section 9.08, the term "interest" includes the aggregate of all
charges which constitute interest under Applicable Laws, provided that, to the
maximum extent permitted by Applicable Laws, (a) any non-principal payment
shall be characterized as an expense or fee or something other than
compensation for the use, forbearance or detention of money and not as
interest, and (b) all interest at any time contracted for, reserved, charged or
received shall be amortized, prorated, allocated and spread, in equal parts
during the full term of the Borrowings. In no event shall the Company or any
other Person be obligated to pay, or any Bank have any right or privilege to
reserve, receive or retain, (a) any interest in excess of the maximum amount of
nonusurious interest permitted under Applicable Laws, or (b) total interest in
excess of the amount which such Bank could lawfully have contracted for,
reserved, received, retained or charged had the interest been calculated for
the full term of the Borrowings at the Highest Lawful Rate. On each day, if
any, that the interest rate (the "Stated Rate") called for under this Agreement
or under any Note or other related document exceeds the Highest Lawful Rate,
the rate at which interest shall accrue shall automatically be fixed by
operation of this sentence at the Highest Lawful Rate (or, at any time no
Highest Lawful Rate shall exist, at the Agreed Maximum Rate) for that day, and
shall remain fixed at the Highest Lawful Rate (or at any time no Highest Lawful
Rate shall exist, at the Agreed Maximum Rate) for each day thereafter until the
total amount of interest accrued equals the total amount of interest which
would have accrued if there were no such ceiling rate as is imposed by this
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sentence. Thereafter, interest shall accrue at the Stated Rate unless and
until the Stated Rate again exceeds the Highest Lawful Rate when the provisions
of the immediately preceding sentence shall again automatically operate to
limit the interest accrual rate. The daily interest rates to be used in
calculating interest at the Highest Lawful Rate shall be determined by dividing
the applicable Highest Lawful Rate per annum by the number of days in the
calendar year for which such calculation is being made. None of the terms and
provisions contained in this Agreement, the Notes or any other related document
which directly or indirectly relate to interest shall ever be construed without
reference to this Section 9.08 or construed to create a contract to pay for the
use, forbearance or detention of money at an interest rate in excess of the
Highest Lawful Rate. If the term of any Loan is shortened by reason of
acceleration of maturity as a result of any Default or other cause, or by
reason of any required or permitted prepayment, and if for that (or any other)
reason any Bank at any time (including but not limited to the stated maturity
of any Borrowing) is owed or receives (and/or has received) interest in excess
of interest calculated at the Highest Lawful Rate, then and in any such event
all of any such excess interest shall be canceled automatically as of the date
of such acceleration, prepayment or other event which produces the excess, and,
if such excess interest has been paid to a Bank, it shall be credited pro tanto
against the then-outstanding principal balance of the Company's obligations to
such Bank, effective as of the date or dates when the event occurs which causes
it to be excess interest, until such excess is exhausted or all of such
principal has been fully paid and satisfied, whichever occurs first, and any
remaining balance of such excess shall be promptly refunded to its payor.
SECTION 9.09. Survival of Representations and Warranties.
All representations, warranties and covenants contained herein or made in
writing by the Company in connection herewith shall survive the execution and
delivery of this Agreement and of the Notes, and will bind and inure to the
benefit of the respective successors and assigns of the parties hereto, whether
so expressed or not, subject, however, to Section 9.11 and the proviso
contained in Section 5.05.
SECTION 9.10. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrowers and the
Administrative Agent and when the Administrative Agent shall have been notified
by each of the other parties hereto that such other party has executed it and
(subject to Section 9.11) thereafter shall be binding upon and inure to the
benefit of the Borrowers, the Administrative Agent and each Bank and their
respective successors and assigns.
SECTION 9.11. Successors and Assigns; Participation. (a)
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and permitted assigns of
such party; and all covenants, promises and agreements by or on behalf of the
Borrowers, the Administrative Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and permitted assigns. Except as expressly provided in Section 5.05, no
Borrower may assign or transfer any of its rights or obligations hereunder
without the written consent of all the Banks.
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(b) Each Bank may without the consent of any Borrower,
with respect to such Bank's Commitment and the Loans owing to it and the Note
or Notes held by it, sell participation to one or more banks or other entities
(including any Bank or any Affiliate of any Bank) in all or a portion of its
rights and obligations under this Agreement; provided, however, that (i) the
selling Bank's obligations under this Agreement shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
entities shall be entitled to the cost protection provisions contained in
Article II and Section 9.04, but only to the extent that such protection would
have been available to the selling Bank, calculated as if no such participation
had been sold and (iv) the Borrowers, the Administrative Agent and the other
Banks shall continue to deal solely and directly with the selling Bank in
connection with such Bank's rights and obligations under this Agreement;
provided, however, that each Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrowers relating to the
Loans including the right to approve any amendment, modification or waiver of
any provision of this Agreement; and further provided, however, the selling
Bank may grant a participant rights consistent with this Agreement with respect
to (x) amendments, modifications or waivers with respect to any fees payable
hereunder (including the amount and the dates fixed for the payment of any such
fees) or the amount of principal or the rate of interest payable on, or the
dates fixed for any payment of principal of or interest on, the Loans and (y)
amendments, modifications or waivers to, or release of, the Guaranty.
(c) With the prior written consent of the Company (which
consent shall not be unreasonably withheld), a Bank may assign to one or more
Eligible Assignees, and without the consent of the Company, a Bank may assign
to an Affiliate of such Bank or to another Bank, all or a portion of its
interests, rights, and obligations under this Agreement (including all or a
portion of its Commitment and the same portion of the Loans at the time owing
to it and the Note held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Agreement and, in the event
such Bank is assigning less than all of its interests, rights and obligations
under this Agreement (unless the Company shall otherwise agree) shall be not
less than $25,000,000 of such Bank's Commitment hereunder and (ii) the parties
to each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register (as defined below), an
Assignment and Acceptance in the form of Exhibit 9.11 hereto (an "Assignment
and Acceptance"), together with a properly completed Administrative
Questionnaire, any Note or Notes subject to such assignment and a processing
and recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof (x) the Eligible Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (y) the assignor Bank thereunder shall,
to the extent provided in 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 remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto).
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<PAGE> 79
(d) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Eligible Assignee confirm to
and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim,
such Bank assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; (ii) such Bank
assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance of its respective obligations under this Agreement or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
Eligible Assignee confirms that it has received a copy of this Agreement
together with copies of the most recent financial statements delivered pursuant
to Section 4.07 or Section 5.07 and such other documents and information as it
has deemed appropriate and made its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such Eligible Assignee will,
independently and without reliance upon the Administrative Agent, such Bank
assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) such Eligible Assignee
appoints and authorizes the Administrative Agent to take such action on behalf
of such Eligible Assignee and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; (vi) such Eligible Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Bank and (vii) such Eligible Assignee confirms that it is an
Eligible Assignee as defined herein.
(e) The Administrative Agent shall maintain at its office
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence
of manifest error, and the Company, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or, any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an Eligible Assignee together with the Note
or Notes subject to such assignment and the written consent to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in the form of Exhibit 9.11 hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Banks and the Borrowers. Within
five Business Days after receipt of such notice, the Borrowers shall execute
and deliver to the Administrative Agent in exchange for the surrendered Note or
Notes a new Committed Note payable to the order of such Eligible Assignee in an
amount equal to the portion of the Total Commitment assumed by it pursuant to
such Assignment and Acceptance and/or a new Competitive Note to the order of
such Eligible Assignee in an amount equal to the Total Commitment and, if the
assigning Bank has retained any portion of
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<PAGE> 80
the Total Commitment hereunder, a new Commitment Note payable to the order of
the assigning Bank in an amount equal to the Commitment retained by it
hereunder. Such new Notes shall be in aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit 1.01-B-1 or Exhibit 1.01-B-2 as applicable,
hereto. Canceled Notes shall be returned to the Borrower that is the signatory
thereto.
(g) Notwithstanding any other provision herein, any Bank
may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.11 disclose to the assignee or
participant or proposed assignee or participant, any information relating to
the Borrowers furnished to such Bank by or on behalf of the Borrowers;
provided, that prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall agree to preserve the confidentiality
of any confidential information relating to the Borrowers received from such
Bank.
(h) Anything in this Section 9.11 to the contrary
notwithstanding, any Bank may at any time, without the consent of the
Borrowers, or the Administrative Agent, assign and pledge all or any portion of
its Commitment and the Loans owing to it to any Federal Reserve Bank (and its
transferees) as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Bank from its obligations hereunder.
(i) All transfers of any interest in any Note hereunder
shall be in compliance with all federal and state securities laws, if
applicable. Notwithstanding the foregoing sentence, however, the parties to
this Agreement do not intend that any transfer under this Section 9.11 be
construed as a "purchase" or "sale" of a "security" within the meaning of any
applicable federal or state securities laws.
SECTION 9.12. Appointment of Company as Agent for the Other
Borrowers. Each Borrowing Subsidiary hereby irrevocably appoints the Company
as its agent for the purpose of giving on its behalf any notice and taking any
other action provided for in this Agreement, and hereby agrees that it shall be
bound by any such notice or action given or taken by the Company hereunder
irrespective of whether or not any such notice shall have in fact been
authorized by such Borrowing Subsidiary and irrespective of whether or not the
agency provided for herein shall have theretofore been terminated.
SECTION 9.13. Separability. Should any clause, sentence,
paragraph or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating
or voiding the remainder of this Agreement, and the parties hereto agree that
the part or parts of this Agreement so held to be invalid, unenforceable or
void will be deemed to have been stricken herefrom and the remainder will have
the same force and effectiveness as if such part or parts had never been
included herein.
SECTION 9.14. SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. (a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE NOTES AND THE ADMINISTRATIVE AGENT'S LETTER MAY BE
-75-
<PAGE> 81
BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF TEXAS AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH BORROWING
SUBSIDIARY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION
SYSTEM, INC., WITH OFFICES ON THE DATE HEREOF AT 811 DALLAS AVENUE, HOUSTON,
TEXAS 77002, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED
IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE
AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH BORROWING SUBSIDIARY
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN HOUSTON, TEXAS ON
THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ADMINISTRATIVE AGENT. EACH BORROWING SUBSIDIARY FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 9.02,
SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT OR ANY BANK TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY BORROWING SUBSIDIARY IN ANY OTHER JURISDICTION.
(b) TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR
PROCEEDING, FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LEGAL PROCESS
(WHETHER SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO
ITSELF OR ANY OF ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THIS AGREEMENT AND THE NOTES. EACH BORROWER HEREBY AGREES THAT THE WAIVERS SET
FORTH IN THIS SECTION 9.15 SHALL HAVE THE FULLEST EXTENT PERMITTED UNDER THE
FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 OF THE UNITED STATES OF AMERICA AND
ARE INTENDED TO BE IRREVOCABLE AND NOT SUBJECT TO WITHDRAWAL FOR PURPOSES OF
SUCH ACT.
SECTION 9.15. Judgment. (a) Rate of Exchange. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
due hereunder (including, without limitation, under Section 6.01) or under any
Note or Notes in another currency into U.S. Dollars or into a
-76-
<PAGE> 82
Foreign Currency, as the case may be, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, a Bank could
purchase such other currency with U.S. Dollars or with such Foreign Currency,
as the case may be, in New York City, New York at the close of business on the
Business Day immediately preceding the day on which final judgment is given,
together with any premiums and costs of exchange payable in connection with
such purchase.
(b) Indemnity. The obligation of each Borrower in
respect of any sum due from it to the Administrative Agent or any Bank
hereunder or under any Note or Notes shall, notwithstanding any judgment in a
currency other than U.S. Dollars or a Foreign Currency, as the case may be, be
discharged only to the extent that on the Business Day next succeeding receipt
by the Administrative Agent or such Bank of any sum adjudged to be so due in
such other currency, the Administrative Agent or such Bank may, in accordance
with normal banking procedures, purchase U.S. Dollars or such Foreign Currency,
as the case may be, with such other currency. If the U.S. Dollars or such
Foreign Currency so purchased are less than the sum originally due to such
Administrative Agent or such Bank in U.S. Dollars or in such Foreign Currency,
each Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Bank against such loss,
and if the U.S. Dollars or such Foreign Currency so purchased exceed the sum
originally due to the Administrative Agent or any Bank in U.S. Dollars or in
such Foreign Currency, as the case may be, the Administrative Agent or such
Bank agrees to remit to such Borrower such excess.
SECTION 9.16. Entire Agreement. This Agreement (including
the Exhibits and Schedules hereto), the Notes and the Administrative Agent's
Letter, together with all other documents, instruments or agreements executed
and delivered in connection herewith and therewith embody the entire agreement
and understanding among the parties hereto relating to the subject matter
hereof and thereof and supersede all prior proposals, agreements and
understandings relating to such subject matter.
SECTION 9.17. Execution by BFIA, BFII and BFIE. BFIA, BFII
and BFIE have executed this Agreement solely for the purpose of consenting to
the amendment and restatement of the 1994 Agreement pursuant to this Agreement.
SECTION 9.18. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 9.19. FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE
NOTES AND THE ADMINISTRATIVE AGENT'S LETTER CONSTITUTE A "LOAN AGREEMENT" AS
DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE CODE, REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND
THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
-77-
<PAGE> 83
AGREEMENTS AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officer thereunto duly authorized,
as of the date first above written.
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ RONALD E. LONG
-----------------------------------
Name: Ronald E. Long
Title: Treasurer
-78-
<PAGE> 84
Administrative Agent
--------------------
CREDIT SUISSE, AS ADMINISTRATIVE AGENT
By: /s/ IRA LUBINSKY
------------------------------------
Name: IRA LUBINSKY
Title: Associate
By: /s/ SEAN BERNARD
------------------------------------
Name: SEAN BERNARD
Title: Associate
<PAGE> 85
Continuing Banks
----------------
ABN AMRO BANK, N.V., HOUSTON AGENCY
BY: ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By: /s/ LILA JORDAN
------------------------------------
Name: Lila Jordan
Title: Vice President and Director
By: /s/ RONALD A. MAHLE
------------------------------------
Name: Ronald A. Mahle
Title: Group Vice President and Director
Three Riverway, Suite 1700
Houston, Texas 77056
Telecopy No.: (713) 629-7533
Telex No.: 064-170786
Domestic Lending Office
-----------------------
ABN AMRO Bank, N.V., Houston Agency
Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Belinda Rowell (in the case
of any Committed Borrowing Request or
Competitive Bid Request) and otherwise
Attn: Ms. Lila Jordan
Eurodollar Lending Office
-------------------------
ABN AMRO Bank, N.V., Houston Agency
Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Belinda Rowell (in the case
of any Committed Borrowing Request or
Competitive Bid Request) and otherwise
Attn: Ms. Lila Jordan
Commitment: $56,000,000
<PAGE> 86
New Banks
---------
BANK OF AMERICA ILLINOIS
By: /s/ CLAIRE LIU
------------------------------------
Name: Claire Liu
Title: Vice President
333 Clay Street, Suite 4550
Houston, Texas 77002
Telecopy No.: (713) 651-4841
Telex No.: 67652 BANK MER SFO
Domestic Lending Office
-----------------------
Bank of America Illinois
231 South Lasalle Street
Chicago, IL 60697
Attn: Andrea Akens
Eurodollar Lending Office
-------------------------
Bank of America Illinois
231 South Lasalle Street
Chicago, IL 60697
Attn: Andrea Akens
Commitment: $56,000,000
<PAGE> 87
New Banks
---------
BANQUE NATIONALE DE PARIS HOUSTON AGENCY
By: /s/ THIERRY BONETTO
------------------------------------
Name: Thierry Bonetto
Title: Vice President
333 Clay Street, Suite 3400
Houston, Texas 77002
Telecopy No.: (713) 659-1414
Telex No.: 166085 BNPHTX
Domestic Lending Office
-----------------------
333 Clay Street, Suite 3400
Houston, Texas 77002
Eurodollar Lending Office
-------------------------
333 Clay Street, Suite 3400
Houston, Texas 77002
Commitment: $56,000,000
<PAGE> 88
New Banks
---------
CITICORP USA, INC.
By: /s/ HILARY HYLAN
------------------------------------
Name: Hilary Hylan
Title: Vice President
399 Park Avenue, 12th Floor, Zone 21
New York, New York 10043
Telecopy No.: (212) 793-3824
Telex No.: N/A
Domestic Lending Office
-----------------------
1 Court Square, 7th Floor
Long Island City, New York 11120
Eurodollar Lending Office
-------------------------
1 Court Square, 7th Floor
Long Island City, New York 11120
Commitment: $56,000,000
<PAGE> 89
New Banks
---------
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By: /s/ JACQUES-YVES MUILLEZ
------------------------------------
Name: Jacques-Yves Muillez
Title: Senior Vice President
1301 Avenue of the Americas
New York, New York 10019
Telecopy No.: (713) 751-0307
Telex No.: 6868674 CL HOU UW
Domestic Lending Office
-----------------------
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Eurodollar Lending Office
-------------------------
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Commitment: $56,000,000
With notices to:
Credit Lyonnais
Houston Representative Office
1000 Louisiana, Suite 5360
Houston, Texas 77002
<PAGE> 90
Continuing Banks
----------------
CREDIT SUISSE
By: /s/ ERIC J. ECKHOLDT
------------------------------------
Name: Eric J. Eckholdt
Title: Associate
By: /s/ JAMES MORAN
------------------------------------
Name: James Moran
Title: Member of Senior Management
Eleven Madison Avenue
New York, New York 10010
Telecopy No.: (212) 325-8304
Telex No.: 420-149
Attn: Credit Administration
Domestic Lending Office
-----------------------
Eleven Madison Avenue
New York, New York 10010
Eurodollar Lending Office
-------------------------
Eleven Madison Avenue
New York, New York 10010
Commitment: $78,000,000
<PAGE> 91
Continuing Banks
----------------
DEUTSCHE BANK AG NEW YORK BRANCH
AND CAYMAN ISLAND BRANCH
By: /s/ J. AUGSBURGER
------------------------------------
Name: John Augsburger
Title: Vice President
By: /s/ HANS-JOSEF THIELE
------------------------------------
Name: Hans-Josef Thiele
Title: Vice President
31 W. 52nd Street
New York, New York 10019
Telecopy No.: (212) 474-8212
Telex No.: AT&T 429166
Domestic Lending Office
-----------------------
New York Branch
31 W. 52nd Street
New York, New York 10019
Eurodollar Lending Office
-------------------------
Cayman Island Branch
c/o New York Branch
31 W. 52nd Street
New York, New York 10019
Commitment: $56,000,000
<PAGE> 92
New Banks
---------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ COURTENAY R. WOOD
------------------------------------
Name: Courtenay R. Wood
Title: Vice President
One First National Plaza, Suite 0374
Chicago, Illinois 60670-0374
Telecopy No.: (312) 732-3885
Telex No.: 4330253 FNBCUI
Domestic Lending Office
-----------------------
One First National Plaza, Suite 0374
Chicago, Illinois 60670-0374
Eurodollar Lending Office
-------------------------
One First National Plaza, Suite 0374
Chicago, Illinois 60670-0374
Commitment: $56,000,000
<PAGE> 93
Continuing Banks
----------------
THE FUJI BANK, LIMITED
By: /s/ DAVID KELLEY
------------------------------------
Name: David Kelley
Title: Sr. Vice President & Manager
One Houston Center
1221 McKinney Street, Suite 4100
Houston, Texas 77010
Telecopy No.: (713) 759-0048
Telex No.: 790-026 FUJI BANK HOU
Domestic Lending Office
-----------------------
One Houston Center
1221 McKinney Street, Suite 4100
Houston, Texas 77010
Eurodollar Lending Office
-------------------------
One Houston Center
1221 McKinney Street, Suite 4100
Houston, Texas 77010
Commitment: $56,000,000
<PAGE> 94
Continuing Banks
----------------
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ CHARLES H. KING
------------------------------------
Name: CHARLES H. KING
Title: VICE PRESIDENT
60 Wall Street, 22nd Floor
New York, New York 10260-0060
Telecopy No.: (212) 648-5336
Telex No.: 177615 MGT UT or
620106 MGT UW
Domestic Lending Office
-----------------------
500 Stanton Christiana Road
Newark, Delaware 19713
Attn: Multi-Option Unit - Loan
Department
Telephone No: (302) 634-1800
Telecopy No.: (302) 634-1094
Telex No.: 177425MBDEL UT
Eurodollar Lending Office
-------------------------
Nassau, Bahamas Office
c/o J. P. Morgan Services Inc.
Euro-Loan Servicing Unit
500 Stanton Christiana Road
Newark, Delaware 19713
Telephone No: (302) 634-1800
Telecopy No.: (302) 634-1094
Telex No.: 177425 MBDEL UT
Commitment: $56,000,000
<PAGE> 95
Continuing Banks
----------------
NATIONSBANK OF TEXAS, N.A.
By: /s/ BILLY GREER
------------------------------------
Name: Billy Greer
Title: Vice President
700 Louisiana, 8th Floor
Houston, Texas 77002
Telecopy No.: (713) 247-6719
Telex No.: N/A
Domestic Lending Office
-----------------------
NationsBank of Texas, N.A.
Attn: Traci Vinson (67th Floor)
901 Main Street
Dallas, Texas 75202
Telecopy: (214) 508-0944
Eurodollar Lending Office
-------------------------
NationsBank of Texas, N.A.
Attn: Traci Vinson (67th Floor)
901 Main Street
Dallas, Texas 75202
Telecopy: (214) 508-0944
Commitment: $56,000,000
<PAGE> 96
New Banks
---------
SOCIETE GENERALE,
SOUTHWEST AGENCY
By: /s/ THIERRY NAMUROY
------------------------------------
Name: Thierry Namuroy
Title: Vice President
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Telecopy No.: (214) 754-0171
Telex No.: TRT 170494/SOCGEN
Domestic Lending Office
-----------------------
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Eurodollar Lending Office
-------------------------
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Commitment: $56,000,000
<PAGE> 97
New Banks
---------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ SUSAN GARNER
------------------------------------
Name: Susan Garner
Title: Vice President
712 Main Street
Houston, Texas 77002
Telecopy No.: (713) 654-2339
Telex No.: 166-350 TCB Hou
Domestic Lending Office
-----------------------
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Eurodollar Lending Office
-------------------------
Texas Commerce Bank National Association
Nassau Branch
712 Main Street
Houston, Texas 77002
Commitment: $56,000,000
<PAGE> 98
EXHIBIT 1.01A
ADMINISTRATIVE QUESTIONNAIRE
BROWNING-FERRIS INDUSTRIES, INC.
AMENDED AND RESTATED MULTICURRENCY
REVOLVING CREDIT AGREEMENT
NOTE TO PARTICIPANTS:
- ---------------------
PLEASE TYPE ALL INFORMATION AND
FORWARD THIS COMPLETED TO:
Administrative Agent: Credit Suisse
- -------------------- Eleven Madison Avenue
New York, New York 10010
Attention: Julia Kingsbury
Telecopier: (212) 325-8304
- ----------
Full Legal Name of your Bank:
------------------------------------
Exact name of signing officer:
------------------------------------
Title of signing officer:
------------------------------------
Business address for delivery of
execution copies of Credit Agreement
(Please do not use P.O. Box address;
hand deliveries cannot be made):
------------------------------------
Signing officer's phone no.:
------------------------------------
Alternate officer contact:
------------------------------------
Alternate officer's phone no.:
------------------------------------
Lending Offices:
- ---------------
Name and Address of Domestic
------------------------------------
Lending Office
------------------------------------
------------------------------------
Name and Address of Eurodollar
------------------------------------
Lending Office
------------------------------------
<PAGE> 99
PRIMARY CONTACT INFORMATION
We will send all telecopies to a single number (the Primary or Alternate
Contact number listed below) at the banking location you designate. These
contacts are those you designate for critical telecopies (rates, loan amounts,
paydowns, etc.).
1. Your bank's primary contact for telecopies:
PRIMARY NAME/ PRIMARY ALTERNATE
PHONE NO. DEPARTMENT TELECOPIER NO. TELECOPIER NO.
--------- ---------- -------------- --------------
ALTERNATE NAME/ PRIMARY ALTERNATE
PHONE NO. DEPARTMENT TELECOPIER NO. TELECOPIER NO.
--------- ---------- -------------- --------------
2. While we will send all telecopies to a single telecopy number, we can
also indicate that up to two additional individuals should be
carbon-copied when the telecopy arrives at your bank. Please
designate the individuals and departments you would like such copies
to be sent to (Note: they must be at the same location):
Name Department
(1)
------------------------------------- ---------------------------------
(2)
------------------------------------- ---------------------------------
(If at any time any of the above information changes, please advise.)
-2-
<PAGE> 100
Hard-copy documents, and notices should be sent to the following officer
designated by your bank:
Officer's Name:
----------------------------------------
Title:
----------------------------------------
Street Address
(No P.O. Boxes please):
----------------------------------------
City, State, Zip:
----------------------------------------
GENERAL OPERATIONAL INFORMATION
Operating Contacts: Name Phone No.
- ------------------ ---- ---------
Loan Department:
------------------------- -------------------------
Loan Administrator:
------------------------- -------------------------
Telex Operator:
------------------------- -------------------------
Other:
------------------------- -------------------------
Movement of Funds: to us: Wire Fed Funds to:
Credit Suisse
ABA #
---------------------------
for account number
--------------
Attention:
---------------------
Reference: Browning-Ferris Industries, Inc.
to you: Wire Fed Funds to:
--------------------------------
--------------------------------
Attention:
----------------------
Reference:
----------------------
Publicity: How would you like your bank's name to
appear in any tombstone advertisements?
-3-
<PAGE> 101
PLEASE COMPLETE THE FOLLOWING INFORMATION
FOR COMPETITIVE AUCTIONS ONLY
Credit Suisse
Eleven Madison Avenue
New York, New York 10010
Attn:
--------------------
Telecopier: (212) Primary
-----------
Contacts:
----------------- ----------- ------------------
PRIMARY CONTACT
COMPETITIVE AUCTIONS
Bank Name:
---------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Primary Contact:
---------------------------------------------------------------
Title:
-------------------------------------------------------------------------
Department:
--------------------------------------------------------------------
Telephone Number:
--------------------------------------------------------------
Telecopier Number:
-------------------------------------------------------------
ALTERNATE CONTACT
COMPETITIVE AUCTIONS
Alternate Contact:
-------------------------------------------------------------
Title:
-------------------------------------------------------------------------
Department:
--------------------------------------------------------------------
Telephone Number:
--------------------------------------------------------------
Telecopier Number:
-------------------------------------------------------------
-4-
<PAGE> 102
Exhibit 2.02
FORM OF COMMITTED BORROWING REQUEST
Credit Suisse, as Administrative Agent for
the Banks party to the Credit Agreement
referred to below
Eleven Madison Avenue
New York, New York 10010
Attention: Agency Department [Date]
Dear Sirs:
Reference is made to the Amended and Restated Multicurrency Revolving
Credit Agreement dated as of December 271996 (as the same may from time to time
be further amended, modified or supplemented, the "Credit Agreement"), among
the undersigned, the other Borrowers, the Banks named therein, and Credit
Suisse, as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice pursuant to Section
2.02 of the Credit Agreement that it requests a Committed Borrowing under the
Credit Agreement, and in that connection sets forth below the terms on which
such Committed Borrowing (the "Proposed Committed Borrowing") is requested to
be made:
(A) Borrowing Date of Proposed Committed
Borrowing (which is a Business Day) is
, .
------------------- -------------------
(B) Aggregate Principal Amount of Proposed
Committed Borrowing is [U.S.
$ .] [For a Committed
-----------------
Borrowing denominated in a Primary
Currency, specify such currency and the
amount of such Borrowing.]
----------------------------
(C) Type of Loans Comprising the Proposed
Committed Borrowing is [ABR Loans]
[Eurodollar Loans].
----------------------------
(D) The initial Interest Period for each
Eurodollar Loan made as part of the
Proposed Committed Borrowing is
month[s].
------------------- ----------------------------
(E) The proceeds of the Proposed Committed
Borrowing are to be advanced to the
undersigned, at ,
------------------
, Account No.:
-------------------
, Reference:
-------------------
.]
------------------- ---------------------------
<PAGE> 103
By each of the delivery of this Committed Borrowing Request and the
acceptance of any or all of the Loans made by the Banks in response to this
request, the undersigned and the Company, if not the undersigned, shall be
deemed to have represented and warranted that the conditions to lending
specified in Article III of the Credit Agreement have been satisfied with
respect to the Committed Borrowing requested hereby.
Very truly yours,
[NAME OF BORROWER]
By:
------------------------------
Name:
Title:
BROWNING-FERRIS INDUSTRIES, INC.
By:
------------------------------
Name:
Title:
-2-
<PAGE> 104
Exhibit 2.03A
FORM OF COMPETITIVE BID REQUEST
Credit Suisse, as Administrative Agent under
the Credit Agreement referred to below
Eleven Madison Avenue
New York, New York 10010 [Date]
Attention: Julia Kingsbury
Dear Sirs:
Reference is made to the Amended and Restated Multicurrency Revolving
Credit Agreement dated as of December 27, 1996 (as the same may from time to
time be further amended, modified or supplemented, the "Credit Agreement"),
among the undersigned, the other Borrowers, the Banks named therein, and Credit
Suisse, as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice pursuant to Section
2.03 of the Credit Agreement that it requests a Competitive Borrowing under the
Credit Agreement, and in that connection sets forth below the terms on which
such Competitive Borrowing (the "Proposed Competitive Borrowing") is requested
to be made:
(A) Borrowing Date of Proposed Competitive
Borrowing (which is a Business Day)
----------------------------
(B) Aggregate Principal Amount of Proposed
Competitive Borrowing
----------------------------
(C) Type of Loans Comprising Proposed [Fixed Rate Loans]
Competitive Borrowing [Eurodollar Loans]
(D) Currency of Proposed Competitive
Borrowing
----------------------------
(E) [Maturity Date] [Interest Period] of
Proposed Competitive Borrowing
----------------------------
(F) Interest Payment Date(s)
----------------------------
(G) Terms of Prepayment of Proposed May [not] be prepaid [with]
Competitive Borrowing [without] penalty
(H) Account Number and Location to which
Proceeds of Proposed Competitive
Borrowing are to be Advanced
----------------------------
(I)
------------------------------------- ----------------------------
(J)
------------------------------------- ----------------------------
The undersigned hereby confirms that the Proposed Competitive
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
<PAGE> 105
By the delivery of this Competitive Bid Request and the acceptance of
any or all of the Loans offered by the Banks in response to this Competitive
Bid Request, the undersigned, and the Company, if not the undersigned, shall be
deemed to have represented and warranted that the applicable conditions to
lending specified in Article III of the Credit Agreement have been satisfied
with respect to the Proposed Competitive Borrowing requested hereby.
Very truly yours,
[NAME OF BORROWER]
By:
------------------------------------
Name:
Title:
BROWNING-FERRIS INDUSTRIES, INC.(1)
By:
------------------------------------
Name:
Title:
- -----------------
(1) If the Borrower is not the Company, a signature block for the Company
should be added.
-2-
<PAGE> 106
Exhibit 2.03B
FORM OF COMPETITIVE BID
Credit Suisse, as Administrative Agent
for the Banks referred to below
Eleven Madison Avenue
New York, New York 10010
[Date]
Attention: Julia Kingsbury
Dear Sirs:
The undersigned, [Name of Bank], refers to the Amended and Restated
Multicurrency Revolving Credit Agreement dated as of December 27, 1996 (as the
same may from time to time be further amended, modified or supplemented, the
"Credit Agreement"), among Browning-Ferris Industries, Inc. (the "Company"),
the other Borrowers, the Banks named therein and Credit Suisse, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.03 of the
Credit Agreement, in response to the Competitive Bid Request made by
____________ on _______, 19__, and in that connection sets forth below the
terms on which such Competitive Bid is made:
(A) Borrowing Date of Proposed Competitive
Borrowing (which is a Business Day)
----------------------------
(B) Aggregate Principal Amount of Proposed
Competitive Borrowing
----------------------------
(C) Type of Loans Comprising Proposed [Fixed Rate Loans]
Competitive Borrowing [Eurodollar Loans]
(D) Currency of Proposed Competitive
Borrowing
----------------------------
(E) [Maturity Date] [Interest Period] of
Proposed Competitive Borrowing
----------------------------
(F) Interest Payment Date(s)
----------------------------
(G) Terms of Prepayment of Proposed May [not] be prepaid [with]
Competitive Borrowing [without] penalty
(H) Account Number and Location to which
Proceeds of Proposed Competitive
Borrowing are to be Advanced
----------------------------
(I)
-------------------------------------- ----------------------------
(J)
-------------------------------------- ----------------------------
<PAGE> 107
The undersigned hereby confirms that it is prepared to extend credit
to ______________ upon acceptance by ____________ of this bid in accordance
with Section 2.03 of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:
-----------------------------
Name:
Title:
-2-
<PAGE> 108
Exhibit 3.01-A
[Browning-Ferris Industries, Inc.]
, 1996
-------------------------
The Banks and Administrative Agent
Referred to Below
c/o Credit Suisse, as Administrative Agent
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
This opinion is furnished pursuant to Section 3.01(g) of the Amended
and Restated Multicurrency Revolving Credit Agreement, dated as of December
27, 1996 (the "Agreement"), among Browning-Ferris Industries, Inc., a Delaware
corporation (the "Company"), the other Borrowers defined therein, the financial
institutions party thereto (the "Banks"), and Credit Suisse, as administrative
agent for the Banks (the "Administrative Agent"). Capitalized terms defined in
the Agreement have the same meanings in this opinion unless otherwise defined
herein.
I am Associate General Counsel of the Company, and solely in such
capacity have examined, either personally or through attorneys under my
supervision, originals, or copies certified to my or their satisfaction, of the
Agreement, the Notes executed and delivered by the Company and the other
Borrowers on the date hereof (the "Notes"), the letter agreement between the
Company and the Administrative Agent (the "Administrative Agent's Letter"), and
such other corporate records, certificates of corporate officials as to certain
matters of fact, and instruments and documents as I or they have deemed
necessary or advisable as a basis for the opinions set forth herein. The
Agreement, the Notes and the Administrative Agent's Letter are sometimes
collectively referred to as the "Credit Documents."
In such examination, I have assumed (i) the genuineness of all
signatures (other than the signatures of Persons signing on behalf of the
Company), the authenticity and completeness of all documents, certificates,
instruments and records submitted to me as originals and the conformity to the
original instruments of all documents submitted to me as copies, and the
authenticity and completeness of the originals of such copies, (ii) the due
authorization, execution and delivery by the Agent and each of the Banks of the
Credit Documents to which they are a party, (iii) that the Agent and each of the
Banks has all requisite power and authority to execute, deliver and perform the
Credit Documents to which they are a party, (iv) the enforceability of the
Agreement against each
<PAGE> 109
The Banks and Administrative Agent
Page 2
of the Banks and (v) the enforceability of the Administrative Agent's Letter
against the Administrative Agent.
In addition, in rendering this opinion, I have relied upon, as to
certain matters of fact, certificates of officers of the Company and
certificates or telegrams of public officials, without any independent
investigation of such matters.
Based upon the foregoing and relying upon the correctness of all
statements of fact contained in the documents, certificates and records that I
have examined either personally or through attorneys under my supervision, and
subject to the assumptions, qualifications, limitations and exceptions set
forth herein, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business in each jurisdiction in which the character or
location of its properties or the nature or conduct of its business makes such
qualification necessary, except for those jurisdictions where the failure to be
so qualified would not have a material adverse effect on the consolidated
financial condition of the Company and its Subsidiaries, taken as a whole.
Each Principal Subsidiary (determined as of September 30, 1996) is a
corporation duly incorporated, validly existing and in good standing under the
laws of its state of incorporation. The Company and each Principal Subsidiary
have the corporate power to own their respective properties and to carry on
their respective businesses as now conducted.
2. The execution, delivery and performance by the Company of the
Credit Documents are within its corporate powers, have been duly authorized by
all necessary corporate action, and do not conflict with or constitute a
default under (i) the Restated Articles of Incorporation or the Bylaws, as
amended, of the Company, or (ii) any law, rule, regulation, order or judgment
or contractual restriction of the Company known to me, the violation of which
would have a material adverse effect on the Company and its Subsidiaries on a
consolidated basis.
3. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required by
the laws of the State of Texas, the corporation laws of the State of Delaware
or, to my knowledge, the federal laws of the United States of America for the
due execution, delivery and performance by the Company of the Credit Documents,
provided that I express no opinion as to the applicability of federal or state
blue sky or securities laws, rules or regulations.
4. The Credit Documents have been duly and validly executed by
the Company.
-2-
<PAGE> 110
The Banks and Administrative Agent
Page 3
5. The Agreement and the Administrative Agent's Letter constitute
and, upon the making of the initial Loan to the Company under the Notes, the
Notes will constitute valid and binding obligations of the Company, each of
which is enforceable in accordance with its respective terms. Upon the making
of the initial Loan to a Borrowing Subsidiary, the Guaranty will constitute a
valid and binding obligation of the Company enforceable in accordance with its
terms.
6. To my knowledge, except as set forth in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1996 there are no
legal or governmental proceedings or investigations pending or threatened
against the Company or any Subsidiary or any property of the Company or any
Subsidiary which individually or, to the extent involving related claims, in
the aggregate, involve a material risk of being resolved in a manner that would
have a material adverse effect on (i) the financial condition of the Company
and its Subsidiaries considered as a whole or (ii) the ability of the Company
to perform its obligations under the Credit Documents.
7. The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, nor is the Company a "holding company" or a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
In rendering the opinions expressed in paragraph 5, I have assumed,
with your approval and without independent investigation, the following (except
insofar as such assumptions could include the foregoing opinions regarding the
Company): (a) there are no fees, charges, points, discounts, premiums or other
additional considerations, amounts or benefits of any nature contracted for,
charged to or paid by, or to be charged to or paid by, the Company or any other
Person for the use or forbearance or detention of money other than as expressly
described and identified in the Credit Documents, (b) other than as expressly
set forth or referred to in the Credit Documents, there are no other
agreements, written or oral, for the contracting, charging or payment of any
amounts or giving of any benefits in each event by the Company or any other
Person to or for the benefit of the Administrative Agent or any Bank, (c)
notwithstanding the provisions in the Credit Documents providing in certain
instances for the computation of accrued interest on the basis of the number of
actual days elapsed over a 360-day year, such computation will be made in
regard to a year of 365 or 366 days, as the case may be, in the event that the
use of a 360-day computation will yield a rate of interest in excess of the
maximum nonusurious per annum rate of interest permitted by applicable law
("Maximum Rate") or an amount of interest in excess of the amount computed at
the Maximum Rate, (d) for purposes of the Credit Documents and the transactions
evidenced thereby, the term "interest" includes the aggregate of all fees,
charges and other amounts which constitute or are deemed to constitute
compensation for the use or forbearance or detention of money or "interest"
under the laws of the State of Texas, (e) neither the Company nor any other
Person liable, directly or indirectly, for the payment of any Note or any other
indebtedness, obligations or liabilities arising
-3-
<PAGE> 111
The Banks and Administrative Agent
Page 4
under and in connection with the Credit Documents shall ever be required to pay
unearned interest in respect of any such indebtedness, obligations or
liabilities and (f) all funds requested by the Company pursuant to the Credit
Agreement will be disbursed to the Company in the amount so requested, and the
Company will have full use of the funds borrowed pursuant to the Credit
Agreement subject to the permitted purposes for use of loan proceeds (to the
extent any of the foregoing is not correct, my opinion on enforceability are
accordingly limited and qualified).
The foregoing opinions are subject to the following qualifications,
limitations and exceptions:
(A) With respect to the opinion set forth in paragraph 5 above, I
advise you that (i) the enforceability of the Credit Documents may be limited
by or affected by bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditors' rights generally or
providing for relief of debtors, including, without limitation, applicable
fraudulent transfer and fraudulent conveyance laws, (ii) the remedies of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses or principles or to the discretion of the court
before which any proceeding therefor may be brought, regardless of whether such
proceeding be deemed one in law or equity, (iii) rights to indemnity under the
Credit Documents may be limited by state or federal laws and the policies
underlying such laws and (iv) provisions of the Credit Documents which permit
either Agent or any Bank to take action or make determinations may be subject
to a requirement that such action be taken or such determination be made on a
reasonable basis and in good faith.
(B) I express no opinion with respect to the effect, validity or
enforceability of any term of any Credit Document purporting to (i) establish
evidentiary standards, (ii) waive statutory rights or remedies, (iii) waive
future laws or rights that may arise in the future or (iv) prohibit the
transfer, alienation, hypothecation or encumbrance of property.
I am licensed to practice law in the State of Texas and I express no
opinion as to matters not governed by the federal laws of the United States of
America, the General Corporation Law of the State of Delaware or the laws of
the State of Texas.
The opinions expressed herein are for the sole benefit of, and may
only be relied upon by, the Agent, the Banks and any other holders of the Notes
or of any interest therein or in the Loans, and, without my prior written
consent, may not be relied upon in any manner by any other Person. This
opinion may not be furnished to any other Person without my prior written
consent, except that this opinion may be provided (i) to the independent
auditors and attorneys of the Agent and each Bank, (ii) to any state or federal
authority having regulatory jurisdiction over the Agent or any Bank, as
applicable, (iii) pursuant to an order or legal process of any court or
governmental agency, (iv)
-4-
<PAGE> 112
The Banks and Administrative Agent
Page 5
to any successor to the Agent or any Bank and (v) in connection with any legal
action to which the Agent or any Bank, as applicable, is a party arising out of
the Credit Documents or relating to the transactions provided for therein. The
opinions expressed herein are as of the date hereof (and not as of any other
date, including, without limitation, the effective date of any Credit Document
if a date other than the date hereof) and I make no undertaking to amend or
supplement such opinions as facts and circumstances come to my attention or
changes in the law occur which could affect such opinions.
Very truly yours,
-5-
<PAGE> 113
Exhibit 3.01-B
[Letterhead of Andrews & Kurth L.L.P.]
, 1996
-----------------------
The Banks and the Administrative Agent
Referred to Below
c/o Credit Suisse, as Administrative Agent
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
We have acted as special Texas counsel for Credit Suisse, as
administrative agent (the "Administrative Agent") in connection with the
Amended and Restated Multicurrency Revolving Credit Agreement dated as of
December 27, 1996 (the "Credit Agreement") among Browning-Ferris Industries,
Inc. (the "Company"), the Administrative Agent and the banks that are parties
thereto (such banks being the "Banks"). This opinion is being rendered
pursuant to Section 3.01(h) of the Credit Agreement. Capitalized terms used
herein which are defined in the Credit Agreement shall have the meanings
specified therein unless otherwise defined herein.
We have examined (a) counterparts of the Credit Agreement executed by
the Agent, the Company and each of the Banks and (b) the Notes delivered by the
Company and the other Borrowers to the Administrative Agent for the account of
the respective Banks on the date hereof pursuant to Section 3.01(b) of the
Credit Agreement (the "Notes"). We understand, and for purposes hereof have
assumed, that (i) the Credit Agreement and the Notes of the Company and the
other Borrowers have been duly authorized, executed and delivered by the
Company and the other Borrowers and the Company and the other Borrowers have
the requisite power and authority to execute, deliver and perform such
instruments and (ii) the Credit Agreement has been duly authorized, executed
and delivered by the several Banks and the Agent, and that each such Person
has the requisite power and authority to execute, deliver and perform the
Credit Agreement.
Based on the foregoing and having due regard for legal considerations
which we deem relevant, we are of the opinion that (a) the Credit Agreement
constitutes a valid, binding and
<PAGE> 114
The Banks and Administrative Agent
Page 2
enforceable obligation of the Company and the other Borrowers, (b) upon the
funding of the initial Loans to the Company and the other Borrowers, the Notes
of the Company will constitute valid, binding and enforceable obligations of
the Company and the other Borrowers and (c) upon the funding of the initial
Loans to a Borrowing Subsidiary, the Guaranty will constitute a valid, binding
and enforceable obligation of the Company.
The foregoing opinion is subject to the following qualifications:
(A) The enforceability of the Credit Agreement and the Notes may
be limited by the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding at law or in equity), including, without limitation (i) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy, and (ii) concepts of materiality, reasonableness, good faith,
and fair dealing.
(B) We express no opinion as to whether federal law allows any of
the Banks located in a state other than the State of Texas to contract for,
take, receive, reserve or charge interest in respect of the Loans or the Notes
(i) at a rate permitted by the laws of such other state but in excess of the
maximum rate permitted by the laws of the State of Texas or (ii) at a rate
permitted by the laws of the State of Texas but in excess of the maximum rate
permitted by the laws of such other state.
(C) We have not been called upon to, and accordingly do not,
express any opinion as to the various state and federal laws regulating banks
or the conduct of their business that may relate to the Credit Agreement and
the Notes and the transactions contemplated thereby. We express no opinion as
to the enforceability of (i) any indemnity provisions contained in the Credit
Agreement to the extent they conflict with public policy, (ii) any severability
provisions contained in the Credit Agreement and (iii) any provision in the
Credit Agreement or the Notes purporting to waive any defense to the
performance of contract obligations or any other right which, as a matter of
law, may not be effectively waived.
This opinion is limited in all respects to the laws of the State of
Texas and applicable federal law. This opinion is provided to you solely for
the purpose of complying with a condition set forth in the Credit Agreement
and, without our prior written consent, this opinion may not be relied upon in
any manner by any other Person (other than a Person who becomes a Bank under
the Credit Agreement).
Very truly yours,
-2-
<PAGE> 115
Exhibit 9.11
FORM OF ASSIGNMENT AND ACCEPTANCE
DATED , 19
---------------------- ---
Reference is made to the Amended and Restated Multicurrency Revolving
Credit Agreement dated as of December 27, 1996 (the "Credit Agreement"), among
Browning-Ferris Industries, Inc., a Delaware corporation, the other Borrowers
(as defined in the Credit Agreement), the Banks (as defined in the Credit
Agreement) named therein and Credit Suisse, as Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of the Assignor's Competitive Loans and
Competitive Notes, if any) equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement (other than in respect of Competitive Loans and Competitive Notes, if
any). After giving effect to such sale and assignment, the Assignee's
Commitment and the aggregate principal amount of all outstanding Committed
Loans owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or the performance or observance by the
Borrowers of any of their respective obligations under the Credit Agreement or
any other instrument or document furnished pursuant thereto; and (iv) confirms
that it has delivered the Committed Notes held by it to the Administrative
Agent and requests that the Administrative Agent exchange such Notes for a new
Committed Note executed by the Company and payable to the order of the Assignee
in a principal amount equal to the Commitment assumed by the Assignees and the
Assignor in an amount equal to the Commitment retained by the Assignor under
the Credit Agreement, respectively, as specified on Schedule 1 hereto.
<PAGE> 116
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 4.07 or 5.07 thereof
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (iii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iv) confirms that it is an Eligible Assignee; (v) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (vi) agrees
that it will perform in accordance with their terms all the obligations which
by the terms of the Credit Agreement are required to be performed by it as a
Bank; (vii) agrees that it will keep confidential all information with respect
to the Borrowers furnished to it by a Borrower or the Assignor (other than
information generally available to the public or otherwise available to the
Assignor on a nonconfidential basis); [AND] (viii) confirms that it has
delivered a completed Administrative Questionnaire to the Administrative
Agent[; AND (ix) ATTACHES THE FORMS PRESCRIBED BY THE INTERNAL REVENUE SERVICE
OF THE UNITED STATES CERTIFYING AS TO THE ASSIGNEE'S EXEMPTION FROM UNITED
STATES WITHHOLDING TAXES WITH RESPECT TO ALL PAYMENTS TO BE MADE TO THE
ASSIGNEE UNDER THE CREDIT AGREEMENT OR SUCH OTHER DOCUMENTS AS ARE NECESSARY TO
INDICATE THAT ALL SUCH PAYMENTS ARE SUBJECT TO SUCH TAX AT A RATE REDUCED BY AN
APPLICABLE TAX TREATY].(1)
4. The effective date for this Assignment and Acceptance shall be
as set forth on Schedule 1 (the "Assignment Date"). Following the execution of
this Assignment and Acceptance, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent pursuant to
Section 9.11(c) of the Credit Agreement.
5. Upon such acceptance and recording, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the
Assignment Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Assignment Date by
the Administrative Agent or with respect to the making of this Assignment and
Acceptance directly between themselves. Delivery of an executed counterpart of
Schedule 1 hereto by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
- -----------------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
-2-
<PAGE> 117
7. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
8. This Assignment and Acceptance shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 hereto to be executed by their officers thereunto duly authorized, as of the
date specified thereon.
-3-
<PAGE> 1
Exhibit 12
BROWNING-FERRIS INDUSTRIES, INC.
AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(Unaudited)
(Dollar Amounts in Thousands)
<TABLE>
<CAPTION>
Three Months
Ended December 31,
---------------------
1996 1995
-------- --------
<S> <C> <C>
Earnings Available for Fixed Charges:
Income before minority interest $ 75,760 $ 87,177
Income taxes 50,507 58,118
-------- --------
Income before income taxes and
minority interest 126,267 145,295
Consolidated interest expense 47,094 43,390
Interest expense related to
proportionate share of 50% owned
unconsolidated affiliates 9,258 5,356
Portion of rents representing the
interest factor 8,648 8,594
Less-Equity in earnings of affiliates
less than 50% owned 848 838
-------- --------
Total $190,419 $201,797
======== ========
Fixed Charges:
Consolidated interest expense and
interest costs capitalized $ 49,951 $ 47,194
Interest expense and interest costs
capitalized related to proportionate
share of 50% owned unconsolidated
affiliates 9,258 5,633
Portion of rents representing the
interest factor 8,648 8,594
-------- --------
Total $ 67,857 $ 61,421
======== ========
Ratio of Earnings to Fixed Charges 2.81 3.29
======== ========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's consolidated financial statements for the three months ended December
31, 1996 and is qualified in its entirety by reference to such financial
statements. (In thousands except per share data.)
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-END> DEC-31-1996
<CASH> 126,562
<SECURITIES> 0
<RECEIVABLES> 1,015,857
<ALLOWANCES> (40,888)
<INVENTORY> 50,255
<CURRENT-ASSETS> 1,343,322
<PP&E> 6,682,054
<DEPRECIATION> (2,797,746)
<TOTAL-ASSETS> 7,506,981
<CURRENT-LIABILITIES> 1,348,254
<BONDS> 2,666,830
0
0
<COMMON> 35,572
<OTHER-SE> 2,534,581
<TOTAL-LIABILITY-AND-EQUITY> 7,506,981
<SALES> 0
<TOTAL-REVENUES> 1,495,137
<CGS> 0
<TOTAL-COSTS> 1,111,298
<OTHER-EXPENSES> 212,506
<LOSS-PROVISION> 7,531
<INTEREST-EXPENSE> 45,256
<INCOME-PRETAX> 126,267
<INCOME-TAX> 50,507
<INCOME-CONTINUING> 71,880
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 71,880
<EPS-PRIMARY> .36
<EPS-DILUTED> .36
</TABLE>
