UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
May 15, 1997
Date of Report (Date of earliest event reported)
AMERICAN DISPOSAL SERVICES, INC.
(Exact name of registrant as specified in its
charter)
Delaware 0-28652
13-3858494
(State or other jurisdiction Commission File Number
(I.R.S. Employer
of incorporation or
Identification Number)
organization)
745 McClintock Drive, Suite 305, Burr Ridge, Illinois
60521
(Address of Principal Executive Offices)
(630) 655-1105
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last
report.)
Item 2. Acquisition
On May 15, 1997, the Company acquired substantially all of
the assets of Liberty Disposal, Inc. ("Liberty Disposal"), a
privately held waste management operation in Rhode Island, for
approximately $14.5 million plus an additional payment for
accounts receivable (the "Acquisition"). The Company funded the
Acquisition with proceeds from a public offering of the Company's
Common Stock (see Item 5 below). Liberty Disposal operates 25
routes and offers commercial, residential and industrial waste
collection and recycling services in Rhode Island and
Massachusetts. The Company believes that the Acquisition will
substantially increase the Company's revenue base in the Rhode
Island region, resulting in the Company owning and operating one
of the three largest collection companies in Rhode Island and
positioning the Company to expand further its market share in the
region and the contiguous markets.
Item 5. Other Events
On May 13, 1997 the Company consummated a public offering of
4,600,000 shares of common stock, par value $.01 per share (the
"Common Stock"), at a price to the public of $16.50 per share and
an underwriting discount of $.90 per share. Net proceeds to the
Company were approximately $70 million and were used to fund the
Acquisition and to repay indebtedness. Following the offering,
the Company has outstanding 13,472,501 shares of Common Stock.
On May 22, 1997, the Company increased the amount of its
credit facility from $125 million to $200 million. The amended
credit facility with ING (U.S.) Capital Corporation, as
Administrative Agent, Morgan Guaranty Trust Company of New York,
as Syndication Agent, Union Bank of California, N.A., as
Documentation Agent, BHF-Bank Aktiengesellschaft and Bank of
America Illinois, as Co-Agents and certain other financial
institutions as Lenders (the "Credit Facility") provides for a
term loan of $60 million and an expansion facility of $140
million to be used for acquisitions (of which $20 million may be
used for working capital and letter of credit purposes). The
various loans under the Credit Facility bear interest at rates
per annum equal to, at the Company's discretion, either: (i) the
higher of (a) the federal funds rate plus 0.5% and (b) the prime
rate, plus an applicable margin ranging from 0% to 1%; or (ii)
the London Interbank Offered Rate ("LIBOR"), plus an applicable
margin ranging from 1% to 2.5% and, having maturities ranging
from 2002 to 2004. The Company's ability to use the expansion
facility is based on a number of covenants, including the
maintenance of specified debt to equity and fixed charge coverage
ratios. Other covenants contain limitations on the payment of
dividends and the incurrence of additional debt.
In April 1997 the Company acquired a collection operation and an
exclusive transfer station contract from Browning-Ferris
Industries of Connecticut, Inc. in southwestern Connecticut. The
town of Stratford , Connecticut holds the permit to the transfer
station which the Company will operate under an exclusive
agreement.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
Incorporated by
reference to the Company's Registration Statement on
Form S-1
(Registration No. 333-24103).
(b) Pro Forma Financial Information. Incorporated by
reference to the
Company's Registration Statement on Form S-1
(Registration No.
333-24103).
(c) The following documents are furnished as Exhibits to
this Current
Report on Form 8-K pursuant to Item 601 of Regulation
S-K:
10.1 Asset Purchase Agreement dated as of March 24,
1997 by and
among Liberty Disposal, Inc., John M. Harpootian,
Trustee,
The Liberty Disposal, Inc. Charitable Remainder
Annual
Trust--1997 and the Company.*
10.2 Second Amended and Restated Credit Agreement
dated as of
May 22, 1997 among the Company, ING (U.S.) Capital
Corporation, as Administrative Agent, Morgan
Guaranty Trust
Company of New York, as Syndication Agent, Union
Bank of
California, N.A., as Documentation Agent, BHF-Bank
Aktiengesellschaft and Bank of America Illinois,
as Co
Agents and certain other financial institutions,
as Lenders.
____________
* Filed as an exhibit to the Company's Registration
Statement on Form S-1 (Registration No. 333-24103).
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.
AMERICAN DISPOSAL SERVICES,
INC.
Date: May 29, 1997
/s/ Stephen P. Lavey
Stephen P. Lavey
Vice President and
Chief Financial Officer
EXHIBIT 10.2
[EXECUTION COPY]
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 22, 1997
among
AMERICAN DISPOSAL SERVICES, INC.,
ING (U.S.) CAPITAL CORPORATION,
as Administrative Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agent
BHF-BANK AKTIENGESELLSCHAFT
and
BANK OF AMERICA ILLINOIS,
as Co-Agents
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered
into as of May 22, 1997, among AMERICAN DISPOSAL SERVICES, INC.,
a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement
(collectively the "Lenders"; individually each a "Lender"), and
ING (U.S.) CAPITAL CORPORATION, as administrative agent for the
Lenders (the "Administrative Agent").
WHEREAS, the Administrative Agent, certain of the Lenders
and the Company are parties to a Credit Agreement, dated as of
May 30, 1996, as amended and restated pursuant to an Amended and
Restated Credit Agreement, dated as of August 26, 1996, as
further amended by an Amendment No. 1, dated as of October 31,
1996 and an Amendment No. 2, dated as of March 14, 1997 (as so
amended, the "Existing Credit Agreement"); and
WHEREAS, the parties to the Existing Credit Agreement wish
to amend and restate the terms thereof;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the
following meanings:
"Administrative Agent" means ING in its capacity as
administrative agent for the Lenders hereunder, and any
successor agent arising under Section 10.9.
"Administrative Agent's Payment Office" means the
address for payments set forth on Schedule 11.2 in relation
to the Administrative Agent, or such other address as the
Administrative Agent may from time to time specify.
"Affected Lender" has the meaning set forth in Section
4.7.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.
A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership
of voting securities or membership interests, by contract,
or otherwise; provided, that, in any event, any Person
(including a member of the immediate family of such Person)
which is an officer or director or that owns directly or
indirectly securities having 10% or more of the voting power
for the election of directors or other governing body of the
Company will be deemed to be an Affiliate of the Company.
"Agent-Related Persons" means ING and any successor
administrative agent arising under Section 10.9, together
with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agreement" means this Second Amended and Restated
Credit Agreement.
"Applicable Commitment Fee Rate" means a per annum fee
calculated on the unused amount of the commitment under the
Expansion Loan Commitment, as determined by the table below:
Applicable Commitment
Fee Rate (% p.a.)
Ratio of Total
Indebtedness to Applicable Commitment
EBITDA Fee Rate (% p.a.)
x > 2.5 .50%
x <= 2.5 .375%
"Applicable Margin" means:
(i) for any Term Loan, 1.00% per annum for Base
Rate Loans and 2.50% per annum for LIBOR Loans;
provided that if the ratio of Total Indebtedness to
EBITDA as at the last day of any fiscal quarter of the
Company shall fall within any of the ranges set forth
in Schedule A below then, subject to the delivery to
the Administrative Agent of a Compliance Certificate
demonstrating such fact, the "Applicable Margin" for
each Term Loan shall be reduced to the applicable
percentage set forth in Schedule A below opposite such
range as of the fifth Business Day following delivery
of such Compliance Certificate through the fifth
Business Day following the date of delivery of the
Compliance Certificate with respect to the next
succeeding fiscal quarter (except that notwithstanding
the foregoing, the Applicable Margin for any Term Loan
shall not as a consequence of this proviso be reduced
at any time during which an Event of Default shall have
occurred and be continuing):
Schedule A
Applicable Margin for
Term Loans (% p.a.)
Ratio of Total
Indebtedness to Base Rate
EBITDA Loans LIBOR Loans
2.0 < x < 3.0 0.75 2.25
x < 2.0 0.50 2.00
and
(ii) for any Expansion Loan, 1.00% per annum for
Base Rate Loans and 2.50% per annum for LIBOR Loans;
provided that if the ratio of Total Indebtedness to
EBITDA as at the last day of any fiscal quarter of the
Company shall fall within any of the ranges set forth
in Schedule B below then, subject to the delivery to
the Administrative Agent of a Compliance Certificate
demonstrating such fact, the "Applicable Margin" for
each Expansion Loan shall be reduced to the applicable
percentage set forth in Schedule B below opposite such
range as of the fifth Business Day following delivery
of such Compliance Certificate through the fifth
Business Day following the date of delivery of the
Compliance Certificate with respect to the next
succeeding fiscal quarter (except that notwithstanding
the foregoing, the Applicable Margin for any Expansion
Loan shall not as a consequence of this proviso be
reduced at any time during which an Event of Default
shall have occurred and be continuing):
Schedule B
Applicable Margin for
Expansion Loans (% p.a.)
Ratio of Total
Indebtedness to Base Rate
EBITDA Loans LIBOR Loans
3.0 < x < 3.5 0.50 2.0
2.5 < x < 3.0 0.25 1.75
2.0 < x < 2.5 0.00 1.50
x < 2.0 0.00 1.00
If on the Closing Date the Company delivers a certificate of
its chief financial officer setting forth the ratio of Total
Indebtedness to EBITDA on the basis of the Company's
financial statements for the period ending March 31, 1997
(adjusted on a pro forma basis to reflect the equity
offering by the Company that was consummated on May 13, 1997
and the application by the Company of the proceeds of such
offering) and such ratio of Total Indebtedness to EBITDA
falls within any of the ranges set forth in Schedules A and
B above, then the appropriate decrease in the Applicable
Margin shall take effect on the Closing Date.
"Asset Sale" means any sale, transfer or disposition of
any asset of the Company or any of its Subsidiaries,
excluding (a) inventory and equipment sold, transferred or
disposed of, in the ordinary course of business of the
Company or such Subsidiary, as the case may be, and (b)
equipment sold, transferred or disposed of, in order to
purchase replacement equipment.
"Assignee" has the meaning set forth in subsection
11.8(a).
"Assignment and Acceptance" has the meaning set forth
in Section 11.8(a).
"Attorney Costs" means and includes all reasonable fees
and disbursements of any law firm or other external counsel
and all reasonable disbursements of internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. Sec. 101, et seq.).
"Base Rate" shall mean, for any day, a rate per annum
equal to the higher of (a) the Federal Funds Rate for such
day plus 1/2 of 1% and (b) the Prime Rate for such day.
Each change in any interest rate provided for herein based
upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base
Rate.
"Base Rate Loan" means a Loan that bears interest based
on the Base Rate.
"Borrowing" means a borrowing hereunder consisting of
Term Loans or Expansion Loans of the same Type made to the
Company on the same day by the Lenders under Article II,
and, other than in the case of Base Rate Loans, having the
same Interest Period.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.4.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York
City are authorized or required by law to close and, if the
applicable Business Day relates to a LIBOR Loan, means such
a day on which dealings are carried on in the applicable
London dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other
Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Lease Liabilities" means all monetary
obligations of the Company or any of its Subsidiaries under
any leasing or similar arrangement which, in accordance with
GAAP, would be classified as capitalized leases, and, for
purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"CapEx Allocation" has the meaning set forth in Section
8.12.
"Cash Collateralize" means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of
the Administrative Agent, the Issuing Lenders and the
Lenders, as additional collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative
Agent and the Issuing Lenders (which documents are hereby
consented to by the Lenders). Derivatives of such term
shall have corresponding meaning. The Company hereby grants
the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lender and the Lenders, a
security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked,
interest bearing deposit accounts at a bank designated by
ING.
"Cash Equivalent Investment" means, at any time:
(a) commercial paper, maturing not more than nine
months from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of the
Company and any Guarantor) organized under the laws of
any state of the United States or of the District of
Columbia and rated at least A-l by S&P or P-l by
Moody's, or
(ii) any Lender (or its holding company);
(b) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is
issued by any Lender; or
(c) any repurchase agreement entered into with any
Lender which
(i) is secured by a fully perfected security
interest in any obligation of the type described in
clause (a) or (b); and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Lender
thereunder.
"CERCLA" has the meaning set forth in subsection
6.12(a).
"Closing Date" means the date on or prior to May 22,
1997 on which all conditions precedent set forth in Section
5.1 are satisfied or waived by all Lenders (or, in the case
of subsection 5.1(e), waived by the Person entitled to
receive such payment).
"Code" means the Internal Revenue Code of 1986.
"Commitments" means the Term Loan Commitments and the
Expansion Loan Commitments.
"Company Pledge Agreement" has the meaning set forth in
subsection 5.1(h).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Computation Period" means each period of four
consecutive fiscal quarters ending on the last day of a
fiscal quarter.
"Contingent Obligation" means, as to any Person, any
direct or indirect liability of such Person, whether or not
contingent, with or without recourse, (a) with respect to
any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligation") of another Person (the
"primary obligor"), including any obligation of such Person
(i) to purchase, repurchase or otherwise acquire such
primary obligation or any security therefor, (ii) to advance
or provide funds for the payment or discharge of any primary
obligation, or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any primary obligation of
the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any primary obligation against loss
in respect thereof (each, a "Guaranty Obligation"); (b) with
respect to any Surety Instrument (other than any Letter of
Credit) issued for the account of such Person or as to which
such Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related
document or obligation requires that payment for such
materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered,
or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability
in respect thereof, and in the case of other Contingent
Obligations, shall be equal to the maximum reasonably
anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed
of trust or other instrument, document or agreement to which
such Person is a party or by which it or any of its property
is bound.
"Conversion/Continuation Date" means any date on which,
under Section 2.5, the Company (a) converts Loans of one
Type to the other Type or (b) continues as LIBOR Loans, but
with a new Interest Period, LIBOR Loans having Interest
Periods expiring on such date.
"Credit Extension" means and includes (a) the making of
any Loan hereunder and (b) the Issuance of any Letter of
Credit hereunder.
"Dollars" and "$" mean lawful money of the United
States.
"EBITDA" means, for any Computation Period, the amount
obtained from the following calculation of the following
amounts (without duplication) for such Computation Period:
(a) Net Income less to the extent included in
determining Net Income, all extraordinary gains, plus to the
extent deducted in determining Net Income, all extraordinary
losses, plus
(b) Interest Expense, plus
(c) to the extent deducted in determining Net Income,
provisions for federal, state, local and foreign income
taxes (other than taxes on extraordinary gains), whether
paid or deferred, plus
(d) to the extent deducted in determining Net Income,
depreciation and amortization expense of assets of the
Company and its Subsidiaries, on a consolidated basis, plus
(e) to the extent deducted in determining Net Income,
the aggregate amount of any write-off of expenses arising in
connection with (a) the Loans or (b) prior issuances of debt
or equity, plus
(f) the aggregate amount of non-cash expense
associated with the closure and post-closure reserves of a
plant or facility owned by the Company or a Subsidiary of
the Company, plus
(g) the aggregate amount of all other non-cash
expenses of the Company and its Subsidiaries not
specifically listed above;
provided, however, that
(x) for the purpose of determining compliance with
Sections 8.10, 8.12 and 8.14 with respect to any period in
which an Eligible Acquisition has occurred, EBITDA shall be
calculated without giving effect to such Eligible
Acquisition during the fiscal quarter in which it occurred
(but shall be calculated after giving effect to such
Eligible Acquisition for each fiscal quarter thereafter)
unless such Eligible Acquisition occurred on the first day
of a fiscal quarter during such period, and
(y) for the purpose of determining compliance with
Section 8.14 with respect to a period in which an Eligible
Acquisition has occurred, if
(i) pursuant to clause (x), EBITDA is calculated
after giving effect to such Eligible Acquisition, and
(ii) the number of full fiscal quarters since such
Eligible Acquisition is less than four, then
EBITDA attributable to such Eligible Acquisition shall be
multiplied by a fraction, the numerator of which is 12 and
the denominator of which is the number of complete calendar
months since the applicable Eligible Acquisition.
"Effective Amount" means, with respect to any
outstanding L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date and
any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any
Letter of Credit or any reduction in the maximum amount
available for drawing under Letters of Credit taking effect
on such date.
"Eligible Acquisition" means any acquisition by the
Company or any of its Subsidiaries (regardless of the
structure of the transaction) of the capital stock of, or
all or substantially all of the assets of, any Person (or of
a line of business or business segment of any Person) that
was, immediately prior to such acquisition, engaged
primarily in the business of solid waste collection,
recycling, hauling and disposal or owning and operating
landfills or transfer stations (or such related activities
as the Company or its Subsidiaries are then engaged in), or
any other acquisition approved by the Majority Lenders.
"Environmental Claims" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for violation
of any Environmental Law, or for release or injury to the
environment.
"Environmental Laws" means all federal, state or local
laws (including RCRA, CERCLA, SARA, the Federal Clean Water
Act, the Federal Clean Air Act and the Toxic Substances
Control Act), statutes, common law duties, rules,
regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any
Governmental Authority, in each case relating to
environmental, health, safety or land use matters.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without
limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of
capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security
Act of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) under common control with the Company
within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by the Company or any
ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a
substantial cessation of operations which is treated as such
a withdrawal; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
"Event of Default" means any of the events or
circumstances specified in Section 9.1.
"Excess Cash Flow" means, for any fiscal year, the
excess (if any) of:
(a) the sum (without duplication) of the amounts for
such fiscal year of:
(i) Operating Cash Flow, plus
(ii) the absolute value of the net decrease (if
any) in working capital (other than cash, cash
equivalents and current maturities of long-term debt)
of the Company and its Subsidiaries, on a consolidated
basis, determined in accordance with GAAP, plus
(iii) the aggregate amount of all tax refunds
received by the Company or any of its Subsidiaries,
over
(b) the sum (without duplication) of the amounts for
such fiscal year of:
(i) the net increase (if any) in working capital
(other than cash, cash equivalents and current
maturities of long-term debt) of the Company and its
Subsidiaries, on a consolidated basis, determined in
accordance with GAAP, plus
(ii) the aggregate amount of interest on the
Loans paid by the Company, and the aggregate principal
amount of Loans (except to the extent any such payment
in respect of an Expansion Loan may be reborrowed
pursuant to Section 2.2(b)) repaid by the Company in
such fiscal year and the aggregate amount of principal
and interest paid by the Company with respect to
Subordinated Indebtedness, plus
(iii) the aggregate amount of payments made by
the Company and its Subsidiaries on Capital Lease
Liabilities in such fiscal year, plus
(iv) the excess of (A) the aggregate Total
Consideration Payable with respect to Eligible
Acquisitions actually paid in cash by the Company and
its Subsidiaries during such year over (B) the
aggregate amount of Expansion Loans borrowed during
such period (less the aggregate amount of prepayments
of Expansion Loans made during such period (other than
the prepayment of Expansion Loans made on May 13,
1997)),
it being understood that the amount of the Retained Excess
Cash Flow for the immediately preceding fiscal year shall be
excluded from the calculation of Excess Cash Flow for such
fiscal year.
"Expansion Loan Commitment" shall mean, for each
Expansion Loan Lender, the obligation of such Lender to make
one or more Expansion Loans in an aggregate amount up to but
not exceeding the amount set forth opposite the name of such
Lender on Schedule 1.1 under the caption "Expansion Loan
Commitment" (as the same may be reduced from time to time in
accordance with this Agreement). The aggregate principal
amount of the Expansion Loan Commitments is $140,000,000.
"Expansion Loan Commitment Termination Date" means
November 30, 2002.
"Expansion Loan Lenders" shall mean (a) on the date
hereof, the Lenders having Expansion Loan Commitments on
Schedule 1.1 and (b) thereafter, the Lenders from time to
time holding Expansion Loans and Expansion Loan Commitments
after giving effect to any assignments thereof permitted by
Section 11.8 hereof.
"Expansion Loan Notes" shall mean the promissory notes
provided for by subsection 2.3 hereof and all promissory
notes delivered in substitution or exchange therefor, in
each case as the same shall be modified and supplemented and
in effect from time to time.
"Expansion Loans" shall mean the loans provided for
under the Expansion Loan Commitments and as provided for by
subsection 2.2 (b) hereof, which may be Base Rate Loans
and/or LIBOR Loans.
"Former Lenders" shall mean The Boatmen's National Bank
of St. Louis, National Bank of Canada and McDonnell Douglas
Finance Corporation.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided
that (a) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next
preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for
such Business Day shall be 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.
"FRB" means the Board of Governors of the Federal
Reserve System, and any Governmental Authority succeeding to
any of its principal functions.
"GAAP" means generally accepted accounting principles
set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or
government, any state or other political subdivision
thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any
corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means each Subsidiary of the Company.
"Guaranty" has the meaning set forth in subsection
5.1(f).
"Guaranty Obligation" has the meaning set forth in the
definition of Contingent Obligation.
"Hazardous Substances" has the meaning set forth in
subsection 6.12(b).
"Holdback Amount" means, with respect to any Eligible
Acquisition, such amount which, pursuant to the terms of the
acquisition agreement with respect to such Eligible
Acquisition, has been withheld by the Company from the
purchase price thereof subject to the satisfaction of
conditions subsequent set forth in such acquisition
agreement.
"Honor Date" has the meaning set forth in subsection
3.3(b).
"Immaterial Law" means any provision of any
Environmental Law the violation of which will not (a)
violate any judgment, decree or order which is binding upon
the Company or any Subsidiary, (b) result in or threaten
(either immediately or with the passage of time) any injury
to public health or the environment or any material damage
to the property of any Person or (c) result in any liability
or expense (other than any de minimis liability or expense)
for the Company or any Subsidiary (either immediately or
with the passage of time); provided that no provision of any
Environmental Law shall be an Immaterial Law if the
Administrative Agent has notified the Company that the
Required Lenders have determined in good faith that such
provision is material.
"Immaterial Notice" means a notice from or allegation
by a Person which is not a Governmental Authority or agency
(or a representative thereof) regarding any event or
condition relating to the environment for which the Company
or any Subsidiary may have any liability or any breach by
the Company or any Subsidiary of any Environmental Law,
which notice or allegation (a) has not given rise to any
judicial or regulatory case or proceeding and (b) in the
reasonable judgment of the Company, is not likely to result
in any liability or expense (other than any de minimis
liability or expense) for the Company or the applicable
Subsidiary.
"Indebtedness" of any Person means, without
duplication, (a) all indebtedness of such Person for
borrowed money; (b) all obligations issued, undertaken or
assumed by such Person as the deferred purchase price of
property or services (other than trade payables entered into
in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations by
such Person with respect to Surety Instruments (excluding
the obligations of the Company with respect to any Post-
Closure Surety Bonds); (d) all obligations of such Person
evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to
property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property); (f) all obligations of such Person with respect
to capital leases; (g) all net obligations of such Person
with respect to Swap Contracts; (h) all indebtedness of such
Person referred to in clauses (a) through (g) above secured
by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Indebtedness; and (i) all Guaranty Obligations of such
Person in respect of indebtedness or obligations of others
of the kinds referred to in clauses (a) through (g) above;
provided, however, that
(A) for the purpose of determining compliance with
Section 8.14 with respect to any period, the amount of
Indebtedness incurred in connection with an Eligible
Acquisition that has occurred during such period shall
not be included in the computation of Indebtedness
during the fiscal quarter in which such Eligible
Acquisition has occurred (but shall be included in such
computation for each fiscal quarter thereafter) unless
such Eligible Acquisition occurred on the first day of
a fiscal quarter during such period; and
(B) any Contingent Obligation that would not be
included as a liability under GAAP shall not constitute
"Indebtedness" hereunder.
"Indemnified Liabilities" has the meaning set forth in
Section 11.5.
"Indemnified Person" has the meaning set forth in
Section 11.5.
"Independent Auditor" has the meaning set forth in
subsection 7.1(a).
"ING" means ING (U.S.) Capital Corporation (which shall
include any successor or assignee thereof).
"Initial Date" has the meaning set forth in subsection
4.1(e).
"Insolvency Proceeding" means, without respect to any
Person, (a) any case, action or proceeding with respect to
such Person before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief
of debtors (including any proceeding under the Bankruptcy
Code) or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors,
or other similar arrangement in respect of such Person's
creditors generally or any substantial portion of such
creditors.
"Interest Expense" means, for any period, the aggregate
amount of cash interest expense of the Company and its
Subsidiaries for such period which, in accordance with GAAP,
would be included on the consolidated financial statements
of the Company, including the portion of any rent paid in
respect of Capital Lease Liabilities which is allocable to
interest expense in accordance with GAAP; provided, however,
that for the purpose of determining compliance with Sections
8.10 and 8.12 with respect to any period, the amount of
Interest Expense attributable to an Eligible Acquisition
that has occurred during such period shall not be included
in the computation of Interest Expense during the fiscal
quarter in which such Eligible Acquisition has occurred (but
shall be included in such computation for each fiscal
quarter thereafter) unless such Eligible Acquisition
occurred on the first day of a fiscal quarter during such
period.
"Interest Period" means, as to any LIBOR Loan, the
period commencing on the Borrowing Date of such Loan or on
the Conversion/Continuation Date on which the Loan is
converted into or continued as a LIBOR Loan, and ending on
the date one, two, three or six months thereafter, as
selected by the Company in its Notice of Borrowing or Notice
of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period
shall be extended to the following Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of the appropriate
subsequent calendar month; and
(iii) no Interest Period applicable to any Loans
shall extend beyond any date upon which is due any
scheduled principal payment unless the aggregate
principal amount of such Loans represented by Base Rate
Loans, or by LIBOR Loans having Interest Periods that
will expire on or before such date, equals or exceeds
the amount of such principal payment.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Issuance Date" has the meaning set forth in subsection
3.1(a).
"Issue" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase
the amount of, such Letter of Credit; and the terms
"Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Lender" means ING in its capacity as issuer of
one or more Letters of Credit hereunder, together with any
replacement letter of credit issuer arising under Section
10.1(b) or Section 10.9; provided, if the Administrative
Agent, with respect to any Letter of Credit, requests that
any other Lender issue such Letter of Credit, then, subject
to the agreement of such other Lender, the Issuing Lender
with respect to such Letter of Credit shall be such other
Lender in such capacity.
"Joint Venture" means a single-purpose corporation,
partnership, limited liability company, joint venture or
other similar legal arrangement (whether created by contract
or conducted through a separate legal entity) now or
hereafter formed by the Company or any of its Subsidiaries
with another Person in order to conduct a common venture or
enterprise with such Person (provided that the term Joint
Venture shall not include any Subsidiary).
"L/C Advance" means each Lender's participation in any
L/C Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form
for amendment of an outstanding standby letter of credit as
shall at any time be in use at the Issuing Lender, as the
Issuing Lender shall request.
"L/C Application" means an application form for
issuance of a standby letter of credit as shall at any time
be in use by the Issuing Lender, as the Issuing Lender shall
request.
"L/C Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not
have been reimbursed on the date when made nor converted
into a Borrowing of Expansion Loans under subsection 3.3(c).
"L/C Commitment" means the commitment of the Issuing
Lenders to Issue, and the commitment of the Expansion Loan
Lenders severally to participate in, Letters of Credit from
time to time Issued under Article III, in an aggregate
amount not to exceed $20,000,000 at any time; it being
understood that the L/C Commitment is a part of the
Expansion Loan Commitment, rather than a separate,
independent commitment.
"L/C Fee Rate" means, at any time, the Applicable
Margin at such time for Expansion Loans that are LIBOR
Loans.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the amount of all unreimbursed
drawings under all Letters of Credit, including all
outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit,
the L/C Applications, the L/C Amendment Applications and any
other document relating to any Letter of Credit, including
any of the Issuing Lender's standard form documents for
letter of credit issuances.
"Lender" has the meaning set forth in the preamble.
References to the "Lenders" shall include the Issuing Lender
in its capacity as such; for purposes of clarification only,
to the extent that the Issuing Lender may have any rights or
obligations in addition to those of the other Lenders due to
its status as Issuing Lender, its status as such will be
specifically referenced.
"Lending Office" means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" on
Schedule 11.2, or such other office or offices as such
Lender may from time to time specify to the Company and the
Administrative Agent.
"Letter of Credit" means any standby letter of credit
Issued by the Issuing Lender pursuant to Article III.
"LIBO Rate" means, with respect to any LIBOR Loan for
any Interest Period therefor, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Administrative Agent to be equal to the
quotient of (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%), reported, at 11:00
a.m. (London time) on the date two Business Days prior to
the first day of such Interest Period, on Telerate Access
Service Page 3750 (British Bankers Association Settlement
Rate) as the London interbank offered rate for Dollar
deposits having a term comparable to the duration of such
Interest Period and (if such Telerate Access Service Page
includes different rates for different deposit amounts) in
an amount equal to or greater than $1,000,000, divided by
(b) 1 minus the Reserve Requirement (if any) for such Loan
for such Interest Period.
"LIBOR Loan" means a Loan that bears interest based on
the LIBO Rate.
"Lien" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially
the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating
lease).
"Loan" means an extension of credit by a Lender to the
Company under Article II or Article III in the form of the
Term Loan, an Expansion Loan or an L/C Advance. Each
Expansion Loan and the Term Loan may be divided into
tranches which may be a Base Rate Loan or a LIBOR Loan.
"Loan Documents" means this Agreement, any Note, the
L/C-Related Documents, the Security Agreement, each
Guaranty, the Pledge Agreements and all other documents
(including any mortgage, leasehold mortgage or deed of
trust) delivered to the Administrative Agent or any Lender
in connection herewith.
"Majority Lenders" means Lenders having at least 51% of
the sum of (a) the aggregate unpaid principal amount of the
Loans plus (b) the aggregate amount of all L/C Obligations
plus (c) the aggregate amount of the unused Expansion Loan
Commitments (to the extent such Commitments have not
terminated).
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the
operations, business, properties, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries
taken as a whole; or (b) a material adverse effect upon the
legality, validity, binding effect or enforceability of any
Loan Document.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, leasehold
mortgage or similar instrument granting the Administrative
Agent a Lien on Real Property of the Company or any
Subsidiary.
"Multiemployer Plan" means a "multiemployer plan",
within the meaning of Section 4001(a)(3) of ERISA, with
respect to which the Company or any ERISA Affiliate may have
any liability.
"Net Debt Proceeds" means, with respect to the sale or
issuance by the Company or any of its Subsidiaries of any
Indebtedness of a type described in clause (a) or (d) of the
definition of Indebtedness, the excess of:
(a) the gross cash proceeds received by the
Company or such Subsidiary, as the case may be,
from such sale or issuance, over
(b) all related underwriting, broker, sales or
placement agent commissions, and all out-of-pocket
related fees and expenses paid by the Company or
such Subsidiary, as the case may be, in connection
therewith.
"Net Disposition Proceeds" means with respect to any
Asset Sale, the excess of:
(a) the gross proceeds (cash and non-cash) received by
the Company or any of its Subsidiaries from such Asset Sale,
over
(b) the sum of:
(i) the aggregate outstanding amount (if any) of
Indebtedness (other than any Loans) that was incurred
or assumed by the Company or any of its Subsidiaries to
acquire the asset subject to such Asset Sale, plus
(ii) all expenses and fees incurred by the
Company or such Subsidiary, as the case may be, in
connection therewith; provided, however, that if any of
such expenses and fees are payable to any Affiliate of
the Company or of any of its Subsidiaries, then only to
the extent they were incurred in good faith and in
arm's length transactions, plus
(iii) all foreign, federal, state and local taxes
payable by the Company or such Subsidiary, as the case
may be, as a direct consequence of any such Asset Sale
(including in the case such Asset Sale was consummated
by a Subsidiary of the Company, taxes payable by such
Subsidiary on any dividend or distribution by it of
cash to the Company or to any Subsidiary of the
Company, as estimated in good faith by the Company),
plus
(iv) appropriate amounts, in an amount reasonably
determined by the Company or such Subsidiary, as the
case may be, in accordance with GAAP to be provided by
the Company or such Subsidiary, as the case may be, as
a reserve against any liabilities retained by it
associated with such assets after such Asset Sale,
including any indemnification, pension and other post-
employment benefit liabilities, workers' compensation
liabilities, liabilities associated with retiree
benefits, and liabilities relating to environmental
matters;
provided, however, that in the event that the taxes actually
paid in respect of any such Asset Sale are less than the
amounts specified in clause (iii), or any of the reserves
specified in clause (iv) are determined by the Company or
such Subsidiary to no longer be required, "Net Disposition
Proceeds" shall be deemed to include such difference on the
date of the payment of such taxes or on the date the amount
of the non-required reserves is so determined, respectively.
"Net Equity Proceeds" means, with respect to the sale
or issuance by the Company or any of its Subsidiaries to any
Person (other than (i) employees, officers and consultants
and former employees, officers and consultants pursuant to
any stock option plan and (ii) other options and warrants
outstanding on the Closing Date) of any stock or other
equity interests, warrants or options or the exercise of any
such warrants or options in respect thereof, the excess of:
(a) the gross proceeds received by the Company or such
Subsidiary, as the case may be, from such sale, issuance or
exercise, over
(b) all related underwriting, broker, sales or
placement agent commissions, and all out-of-pocket related
fees and expenses paid by the Company or such Subsidiary, as
the case may be, in connection therewith.
"Net Income" means, for any period, the net income of
the Company and its Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP.
"Note" means the Term Loan Notes and the Expansion Loan
Notes.
"Notice of Borrowing" means a notice in substantially
the form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by the Company to any Lender, the
Administrative Agent or any Indemnified Person, whether
direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, or now
existing or hereafter arising.
"Operating Cash Flow" has the meaning set forth in
Section 8.12.
"Organization Documents" means, for any corporation,
the certificate or articles of incorporation, the bylaws,
any certificate of determination or instrument relating to
the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee
thereof) of such corporation.
"Other Taxes" means 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
other Loan Document.
"Participant" has the meaning set forth in subsection
11.8(c).
"PBGC" means the Pension Benefit Guaranty Corporation,
or any Governmental Authority succeeding to any of its
principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA with
respect to which the Company or any ERISA Affiliate may have
any liability.
"Permitted Liens" has the meaning set forth in Section
8.1.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company or any of its
Subsidiaries sponsors or maintains or to which the Company
or any of its Subsidiaries makes, is making, or is obligated
to make contributions and includes any Pension Plan.
"Pledge Agreements" means the Company Pledge Agreement
and each Subsidiary Pledge Agreement.
"Post-Closure Surety Bond" means a surety bond issued
for the account of the Company or one of its Subsidiaries in
the ordinary course of business in connection with a
landfill operated by the Company, which surety bond is
issued for the purpose of ensuring the payment of costs
associated with the closing of such landfill.
"Prime Rate" means the arithmetic average of the rates
of interest publicly announced by The Chase Manhattan Bank,
Citibank, N.A. and Morgan Guaranty Trust Company of New York
(or their respective successors) as their respective prime
commercial lending rates (or, as to any such bank that does
not announce such a rate, such bank's "base" or other rate
determined by the Administrative Agent to be the equivalent
rate announced by such bank), except that, if any such bank
shall, for any period, cease to announce publicly its prime
commercial lending (or equivalent) rate, the Administrative
Agent shall, during such period, determine the "Prime Rate"
based upon the arithmetic average of the prime commercial
lending (or equivalent) rates announced publicly by the
other such banks.
"Pro Rata Share" means, as to any Lender of any Class
at any time, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of
such Lender's Commitment with respect to such Class of Loans
(whether funded or unfunded) divided by the combined
Commitments (whether funded or unfunded) of all Lenders of
such Class. The initial Pro Rata Share of each Lender for
each Class is set forth on Schedule 1.1.
"Quarterly Date" means the last Business Day of each
March, June, September and December of each year.
"Quarterly Payment Date" means (i) as to any LIBOR
Loan, the earlier of the last day of each Interest Period
applicable to such Loan and, if such Interest Period is
longer than three months, at three-month intervals following
the first day of such Interest Period, and (ii) as to any
Base Rate Loan and any other amounts payable hereunder
(including any fees), the last Business Day of each March,
June, September and December.
"RCRA" has the meaning set forth in subsection 6.12(a).
"Real Property" means all real property heretofore, now
or hereafter owned, operated or leased by the Company or any
Subsidiary.
"Release" has the meaning specified in CERCLA and the
term "Disposal" (or "Disposed") shall have the meaning
specified in RCRA and regulations promulgated thereunder;
provided that in the event either CERCLA or RCRA is amended
so as to broaden the meaning of any term defined thereby,
such broader meaning shall apply as of the effective date of
such amendment; and provided further, to the extent that the
laws of a state wherein the affected property lies establish
a meaning for "Release" or "Disposal" which is broader than
is specified in either CERCLA or RCRA, such broader meaning
shall apply.
"Replacement Lender" has the meaning set forth in
Section 4.7.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations
issued by the PBGC.
"Required Lenders" means Lenders having at least
66-2/3% of the sum of (a) the aggregate unpaid principal
amount of the Loans plus (b) the aggregate amount of all L/C
Obligations plus (c) the aggregate amount of the unused
Expansion Loan Commitments (to the extent such Commitments
have not terminated).
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any
of its property is subject.
"Reserve Requirement" shall mean, for any Interest
Period for any LIBOR Loan, the average maximum rate at which
reserves (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City
with deposits exceeding one billion Dollars against
"Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other
reserves required to be maintained by such member banks by
reason of any regulatory change with respect to (i) any
category of liabilities that includes deposits by reference
to which the LIBO Rate is to be determined as provided in
the definition of "LIBO Rate" in this Section 1.01 or
(ii) any category of extensions of credit or other assets
that includes LIBOR Loans.
"Responsible Officer" means the chief executive
officer, the chief financial officer, the chief accounting
officer or the president of the Company, or any other
officer having substantially the same authority and
responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the
treasurer of the Company, or any other officer having
substantially the same authority and responsibility.
"Restricted Payment" has the meaning set forth in
Section 8.15.
"Retained Excess Cash Flow" means for any fiscal year,
25% of the Excess Cash Flow for such fiscal year.
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc.
"SARA" has the meaning set forth in subsection 6.12(a).
"SEC" means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its
principal functions.
"Security Agreement" has the meaning set forth in
subsection 5.1(g).
"Subordinated Indebtedness" means unsecured
Indebtedness of the Company for money borrowed which is
subordinated in form and substance to the monetary
Obligations, and has subordination provisions, terms of
payment, interest rates, covenants, remedies, defaults and
other material terms, in each case, reasonably satisfactory
in form and substance to the Administrative Agent and the
Majority Lenders.
"Subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of
the voting stock, membership interests or other equity
interests is owned or controlled directly or indirectly by
such Person, or by one or more of the Subsidiaries of such
Person, or by a combination thereof. Unless the context
otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
"Subsidiary Pledge Agreement" has the meaning set forth
in subsection 5.1(h).
"Subsidiary X" has the meaning set forth in Section
7.16.
"Surety Instruments" means all letters of credit
(including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments.
"Swap Contract" means any agreement (including any
master agreement and any agreement, whether or not in
writing, relating to any single transaction) that is an
interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or
equity index swap or option, bond option, interest rate
option, forward foreign exchange agreement, rate cap, collar
or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or other
similar agreement (including any option to enter into any of
the foregoing).
"Target Co." means any Person whose assets or equity
securities shall be subject to a prospective or actual
Eligible Acquisition.
"Taxes" means any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, such taxes
(including income taxes or franchise taxes) as are imposed
on or measured by such Lender's or the Administrative
Agent's, as the case may be, net income by the jurisdiction
(or any political subdivision thereof) under the laws of
which such Lender or the Administrative Agent, as the case
may be, is organized or maintains a lending office.
"Term Loan Commitment" shall mean, for each Term Loan
Lender, the obligation of such Lender to make a single Term
Loan in an aggregate amount up to but not exceeding the
amount set forth opposite the name of such Lender on
Schedule 1.1 under the caption "Term Loan Commitment" (as
the same may be reduced from time to time in accordance with
this Agreement). The aggregate principal amount of the
Term Loan Commitments is $60,000,000.
"Term Loan Commitment Termination Date" means the
Closing Date.
"Term Loan Lenders" shall mean (a) on the date hereof,
the Lenders having Term Loan Commitments on Schedule 1.1 and
(b) thereafter, the Lenders from time to time holding Term
Loans and Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 11.8 hereof.
"Term Loan Notes" shall mean the promissory notes
provided for by subsection 2.3 hereof and all promissory
notes delivered in substitution or exchange therefor, in
each case as the same shall be modified and supplemented and
in effect from time to time.
"Term Loans" shall mean the loans provided for under
the Term Loan Commitment and as provided for by
subsection 2.2 (a) hereof, which may be Base Rate Loans
and/or LIBOR Loans.
"Three-year Anniversary Date" means the third
anniversary of the Closing Date.
"Total Consideration Payable" means with respect to any
Eligible Acquisition, the sum of:
(a) total cash consideration that is payable by the
Company to the applicable seller in connection with such
Eligible Acquisition (including the aggregate amount of
broker's fees, finder's fees and origination fees arising in
connection with such Eligible Acquisition), plus
(b) the good faith estimated capital expenditures to
be incurred by the Company during the twelve months
immediately succeeding such Eligible Acquisition (as
certified by the Company to the Administrative Agent) that
are specifically associated with the operation of the
acquired assets, plus
(c) the amount which represents any contingent
obligations with respect to such Eligible Acquisition,
unless the payment of such contingent obligation is
conditioned on improved cash flow or other improvements by
the business acquired in such Eligible Acquisition.
"Total Indebtedness" means all Indebtedness of the
Company and its Subsidiaries determined on a consolidated
basis, excluding Indebtedness described in, and Guaranty
Obligations in respect of Indebtedness described in,
clause (g) of the definition of Indebtedness.
"Unfunded Pension Liability" means the excess of a
Pension Plan's benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of such Pension Plan's
assets, determined in accordance with the assumptions used
for funding such Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.
"United States" and "U.S." each means the United States
of America.
"Unmatured Event of Default" means any event or
circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Wholly-Owned Subsidiary" means any corporation in
which (other than directors' qualifying shares required by
law) 100% of the capital stock of each class having ordinary
voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of
record, by the Company, or by one or more other Wholly-Owned
Subsidiaries, or by a combination thereof.
"Withheld Amount" means, with respect to any Eligible
Acquisition, such part of the Holdback Amount which,
pursuant to the terms of the acquisition agreement with
respect to such Eligible Acquisition, has been determined
not to be payable by the Company pursuant to the terms of
such acquisition agreement.
1.2. Other Interpretive Provisions.
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(iii) In the computation of periods of time from
a specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding"; and the word "through" means "to
and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) This Agreement and the other Loan Documents may
use several different limitations, tests or measurements to
regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and shall each be performed
in accordance with their terms.
(g) This Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by
counsel to the Administrative Agent, the Company and the other
parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Administrative
Agent merely because of the Lenders' or the Administrative
Agent's involvement in their preparation.
(h) Loans hereunder are distinguished by "Class" and
by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is an Expansion Loan or a Term
Loan, each of which constitutes a Class. The "Type" of a Loan
refers to whether such Loan is a Base Rate Loan or a LIBOR Loan,
each of which constitutes a Type. Loans may be identified by
both Class and Type.
1.3 Accounting Principles.
(a) Unless otherwise specified, all accounting terms
used herein or in any other Loan Document shall be interpreted,
all accounting determinations and computations hereunder or
thereunder (including under Section 7.1) shall be made, and all
financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with, those generally
accepted accounting principles applied in the preparation of the
financial statements referred to in Section 6.11.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 The Credits. On the terms and subject to the
conditions of this Agreement,
(a) each Lender severally agrees to make Loans
pursuant to the Commitments described in Section 2.2; and
(b) the Issuing Lender agrees that it will issue
Letters of Credit pursuant to Section 3.2, and each Expansion
Loan Lender severally agrees that it will purchase participation
interests in Letters of Credit pursuant to Section 3.3.
2.2 The Commitments.
(a) Term Loan Commitment. Each Term Loan Lender
severally agrees, on the terms and conditions of this Agreement,
to make a single term loan to the Company in Dollars on the
Closing Date in a principal amount up to but not exceeding the
amount of the Term Loan Commitment of such Lender. No amounts
paid or prepaid with respect to Term Loans may be reborrowed.
(b) Expansion Loan Commitment. Each Expansion Loan
Lender severally agrees, on the terms and conditions of this
Agreement, to make loans to the Company in Dollars during the
period from and including the Closing Date to but not including
the Expansion Loan Commitment Termination Date in an aggregate
principal amount up to but not exceeding the amount of the
Expansion Loan Commitment of such Lender, provided that in no
event shall the aggregate principal amount of all Expansion
Loans, together with the aggregate amount of all L/C Obligations,
exceed the aggregate amount of the Expansion Loan Commitments as
in effect from time to time. Subject to the terms and conditions
of this Agreement, the Company may borrow, repay and reborrow the
amount of the Expansion Loan Commitments.
2.3 The Notes. Each Lender's Loans under a Commitment
shall be evidenced by a Note payable to the order of such Lender
in a maximum principal amount equal to such Lender's Pro Rata
Share of the original applicable Commitment. The Company hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Notes
(or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding
principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall
be conclusive and binding on the Company absent demonstrable
error; provided, however, that the failure of any Lender to make
any such notations, or any error in any such notation, shall not
limit or otherwise affect any obligations of the Company or any
Guarantor.
2.4 Procedure for Borrowing. (a) Each Borrowing of Loans
shall be made upon the Company's irrevocable written notice
delivered to the Administrative Agent in the form of a Notice of
Borrowing (which notice must be received by the Administrative
Agent prior to 11:00 a.m. (New York time) (i) three Business Days
prior to the requested Borrowing Date, in the case of LIBOR
Loans; and (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be
(x) in the case of LIBOR Loans, in an amount of
$500,000 or a higher integral multiple of $100,000 and
(y) in the case of Base Rate Loans, in an aggregate
amount of $100,000 or a higher integral multiple
thereof;
(B) the requested Borrowing Date, which shall be
a Business Day;
(C) the Type and Class of Loans comprising the
Borrowing; and
(D) in the case of LIBOR Loans, the duration of
the Interest Period therefor.
(b) The Administrative Agent will notify each
applicable Lender of its receipt of any Notice of Borrowing and
of the amount of such Lender's Pro Rata Share of such Borrowing
by 5 p.m. on the day it receives a Notice of Borrowing.
(c) Each Lender will make the amount of its Pro Rata
Share of each Borrowing available to the Administrative Agent for
the account of the Company to an account of the Administrative
Agent specified to the Lenders for such purpose by 12:00 noon
(New York time) on the Borrowing Date requested by the Company in
immediately available funds. The proceeds of all Loans will then
be made available to the Company by the Administrative Agent by
transfer of the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received
by the Administrative Agent to an account of the Company
specified for such purpose in the Notice of Borrowing.
(d) After giving effect to any Borrowing, there may
not be more than eight different Interest Periods in effect.
2.5 Conversion and Continuation Elections. (a) The Company
may, upon irrevocable written notice to the Administrative Agent
in accordance with subsection 2.5(b):
(i) elect to convert, on any Business Day, any Base
Rate Loans (in an aggregate amount of $100,000 or a higher
integral multiple thereof) into LIBOR Loans;
(ii) elect to convert, on the last day of the
applicable Interest Period, any LIBOR Loans (or any part
thereof in an aggregate amount of $100,000 or a higher
integral multiple thereof) into Base Rate Loans; or
(iii) elect to continue, as of the last day of the
applicable Interest Period, any LIBOR Loans having Interest
Periods expiring on such day (or any part thereof in an
aggregate amount of $500,000 or a higher integral multiple
of $100,000);
provided that if at any time the aggregate amount of LIBOR Loans
in respect of any Borrowing shall have been reduced, by payment,
prepayment, or conversion of part thereof, to be less than
$500,000, such LIBOR Loans shall automatically convert into Base
Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative
Agent not later than 11:00 a.m. (New York time) at least (i)
three Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as LIBOR
Loans; and (ii) one Business Day prior to the
Conversion/Continuation Date, if the Loans are to be converted
into Base Rate Loans, specifying:
(i) the proposed Conversion/Continuation Date;
(ii) the aggregate amount of Loans to be converted or
continued;
(iii) the Type and Class of Loans resulting from the
proposed conversion or continuation; and
(iv) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to LIBOR Loans, the Company has failed to select
timely a new Interest Period to be applicable to such LIBOR
Loans, the Company shall be deemed to have elected to convert
such LIBOR Loans into Base Rate Loans effective as of the
expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation or,
if no timely notice is provided by the Company, the
Administrative Agent will promptly notify each Lender of the
details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless the Required Lenders otherwise agree,
during the existence of an Event of Default or Unmatured Event of
Default, the Company may not elect to have a Loan converted into
or continued as a LIBOR Loan.
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than eight different
Interest Periods in effect.
2.6 Voluntary Termination or Reduction of Commitments. The
Company may, upon not less than five Business Days' prior notice
to the Administrative Agent, terminate the Expansion Loan
Commitments, or permanently reduce the Expansion Loan
Commitments, by an aggregate amount of $1,000,000 or a higher
integral multiple thereof; unless, after giving effect thereto
and to any prepayment of Expansion Loans made on the effective
date thereof, the aggregate principal amount of all Expansion
Loans plus the Effective Amount of all L/C Obligations would
exceed the aggregate amount of the Expansion Loan Commitments
then in effect. Once reduced in accordance with this Section,
the Expansion Loan Commitments may not be increased. Any
reduction of the Expansion Loan Commitments shall be applied to
each Lender according to its Pro Rata Share.
2.7 Mandatory Reduction of Commitments. The aggregate
amount of the Expansion Loan Commitments shall be reduced on the
dates and in the amounts set forth below:
Expansion Loan Commitments
Reduction Date Amount
of Reduction
May 31, 2000 $8,750,000
September 30, 2000 $8,750,000
December 31, 2000 $8,750,000
March 31, 2001 $8,750,000
June 30, 2001 $8,750,000
September 30, 2001 $8,750,000
December 31, 2001 $8,750,000
March 31, 2002 $8,750,000
June 30, 2002 $8,750,000
September 30, 2002 $8,750,000
In addition, the Expansion Loan Commitments shall be reduced on
each date after the Three-year Anniversary Date on which any
mandatory prepayment is made with respect to the Expansion Loans
pursuant to Section 2.10, in an amount equal to the amount of
such prepayment.
2.8 Optional Prepayments. Subject to Section 4.4, the
Company may, at any time or from time to time, upon not less than
one Business Day's irrevocable notice to the Administrative
Agent, ratably prepay any Loans in whole or in part, in the case
of LIBOR Loans, in an amount of $500,000 or a higher integral
multiple of $100,000 and in the case of Base Rate Loans, in an
aggregate amount of $100,000 or a higher integral multiple
thereof. Any prepayment of Loans shall be applied in accordance
with Section 2.10(a). The Administrative Agent will promptly
notify each applicable Lender of its receipt of any such notice
and of such Lender's Pro Rata Share of such prepayment. If any
such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with,
in the case of LIBOR Loans, accrued interest to such date on the
amount prepaid and any amounts required pursuant to Section 4.4.
2.9 Mandatory Prepayments. The Company shall,
(a) (i) on each date when any reduction in the
Expansion Loan Commitments shall become effective, including
pursuant to Section 2.6 and Section 2.7, make a mandatory
prepayment of Expansion Loans equal to the excess, if any,
of (x) the sum of the aggregate, outstanding principal
amount of all Expansion Loans and the L/C Obligations over
(y) the Expansion Loan Commitment Amount as so reduced, and
(ii) prepay Expansion Loans in an amount equal to each
Withheld Amount on the date on which such Withheld Amount is
determined not to be payable by the Company, provided, that
for the purposes of this subsection, if the total cash
consideration with respect to any Eligible Acquisition is
funded in whole or in part with funds other than the
proceeds of an Expansion Loan, then the Withheld Amount
subject to a prepayment pursuant to this subsection shall be
deemed to be the lesser of the proceeds of such Expansion
Loan and the Withheld Amount.
(b) within 90 days after the end of each fiscal year,
make a mandatory prepayment of the Loans, in an amount equal
to 75% of the Excess Cash Flow for such fiscal year;
(c) no later than the third Business Day after each
receipt by the Company or any of its Subsidiaries of any Net
Disposition Proceeds, make a mandatory prepayment of the
Loans in the amount of the Net Disposition Proceeds;
provided, however, that in the event that the Company or any
of its Subsidiaries shall have received non-cash Net
Disposition Proceeds, such prepayment shall be required only
to the extent that such non-cash Net Disposition Proceeds
are converted into cash or cash is received in respect
thereof;
(d) no later than the third Business Day after each
receipt by the Company or any of its Subsidiaries of any Net
Equity Proceeds, make a mandatory prepayment of the Loans in
the amount of 50% of such Net Equity Proceeds; provided,
however, that in the event that the Company or any of its
Subsidiaries shall have received non-cash Net Equity
Proceeds, such prepayment shall be required only to the
extent of the non-cash Net Equity Proceeds as they are
converted into cash or cash is received in respect thereof;
(e) no later than the third Business Day after each
incurrence or issuance of any Indebtedness of a type
described in clause (a) or (d) of the definition of
Indebtedness by the Company or any Subsidiary of the
Company, make a mandatory prepayment of the Loans in the
amount of 100% of the Net Debt Proceeds from such incurrence
or issuance; and
(f) immediately upon any acceleration of the maturity
date of the Loans pursuant to Section 9.2, repay all Loans.
2.10 Application. Each prepayment of the principal of the
Loans shall be applied, to the extent of such prepayment as
follows:
(a) in the case of voluntary prepayments, to such
Class of Loans as the Borrower shall direct, provided that
prepayment of the Term Loans shall be made in the inverse
order of the maturities of the installments thereof.
(b) in the case of mandatory prepayments,
(i) if pursuant to Section 2.9(a), to the then
outstanding Expansion Loans,
(ii) if pursuant to Section 2.9(b), pro rata
among the then outstanding Term Loans and Expansion
Loans;
provided that (x) payments with respect to Term
Loans shall be applied in the inverse order of the
maturities of the installment thereof and (y) payments
of Expansion Loans after the Three-year Anniversary
Date shall be applied to reduce the Expansion Loan
Commitments in the order of the Expansion Loan
Commitment reductions,
(iii) if pursuant to any other clause of
Section 2.9,
first, to the then outstanding Term Loans in
the inverse order of the maturities of the
installments thereof; and
then, to the then outstanding Expansion Loans
which, after the Three-year Anniversary Date,
shall be applied to reduce the Expansion Loan
Commitment in the order of the Expansion Loan
Commitment reduction (and, after the payment in
full of all Expansion Loans, to Cash
Collateralize outstanding L/C Obligations (but
only if the Three-year Anniversary Date has then
occurred)).
(c) for so long as any Expansion Loans are
outstanding, any holder of a Term Loan may waive its right to its
portion of any optional or mandatory prepayment made pursuant to
Sections 2.8, 2.9(b), (c), (d) or (e), in which case such amounts
that would have been paid to such holder shall be applied ratably
to the Term Loans that are not the subject of such waiver and to
the Expansion Loans as provided in Section 2.10(b)(iii).
2.11 Repayment.
(a) The Expansion Loans. The Company shall repay all
Expansion Loans in full on the Expansion Loan Commitment
Termination Date.
(b) The Term Loans. The Company shall repay the Term
Loans in installments on the dates and in the amounts set forth
below:
Term Loans
Remaining
Amount Outstanding
Payment Due Due ($) Balance
December 31, 1997 $600,000 $59,400,000
December 31, 1998 $600,000 $58,800,000
December 31, 1999 $600,000 $58,200,000
December 31, 2000 $600,000 $57,600,000
December 31, 2001 $600,000 $57,000,000
December 31, 2002 $600,000 $56,400,000
December 31, 2003 $600,000 $55,800,000
May 31, 2004 $55,800,000 $0
2.12 Interest. (a) The Company hereby promises to pay to
the Administrative Agent for account of each Lender interest on
the unpaid principal amount of each Loan made by such Lender for
the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the
following rates per annum:
(i) during such periods that such Loan is a Base Rate
Loan, the Base Rate (as in effect from time to time) plus
the Applicable Margin; and
(ii) during such periods that such Loan is a LIBOR
Loan, for each Interest Period relating thereto, the LIBO
Rate for such Loan for such Interest Period plus the
Applicable Margin.
(b) Notwithstanding subsection (a) of this Section,
the Company hereby promises to pay to the Administrative Agent
for account of each Lender,
(i) with regard to Base Rate Loans, upon the
occurrence and during the continuance of an Unmatured Event
of Default or an Event of Default, interest at the Base Rate
plus the Applicable Margin plus 2%;
(ii) with regard to LIBOR Loans, upon the occurrence
and during the continuance of an Unmatured Event of Default
or an Event of Default, interest at the LIBO Rate plus the
Applicable Margin plus 2%; and
(iii) with respect to any unreimbursed drawings under
all Letters of Credit and any interest, fees or any other
amount payable by the Company hereunder or under the Notes
held by such Lender to or for account of such Lender, upon
the occurrence and during the continuance of an Unmatured
Event of Default or an Event of Default, interest at the
Base Rate plus the Applicable Margin for Expansion Loans
plus 2%.
(c) Accrued interest on each Loan shall be payable (i)
on the Quarterly Payment Dates, and (ii) upon the payment or
prepayment thereof or the conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid
or converted), except that interest payable pursuant to the
foregoing subsection (b) shall be payable from time to time on
demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Company.
(d) Anything herein to the contrary notwithstanding,
the obligations of the Company to any Lender hereunder shall be
subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder
to the extent (but only to the extent) that contracting for or
receiving such payment by such Lender would be contrary to the
provisions of any law applicable to such Lender limiting the
highest rate of interest that may be lawfully contracted for,
charged or received by such Lender, and in such event the Company
shall pay such Lender interest at the highest rate permitted by
applicable law.
2.13 Fees. In addition to certain fees described in
Section 3.8:
(a) Agency Fees. The Company shall pay an annual
agency fee pursuant to a fee letter between the Company and the
Administrative Agent dated April 23, 1997.
(b) Commitment Fees. (i) The Company shall pay to the
Administrative Agent for the account of each applicable Lender
the Applicable Commitment Fee Rate on the average daily amount of
such Lender's Pro Rata Share of the unused Expansion Loan
Commitment, computed on a quarterly basis in arrears on each
Quarterly Date (or, if earlier, the Expansion Loan Commitment
Termination Date). Such commitment fee shall accrue from the
Closing Date to the Expansion Loan Commitment Termination Date
and shall be due and payable in arrears on each Quarterly Date,
with the final payment to be made on the Expansion Loan
Commitment Termination Date.
(ii) The commitment fees provided in this subsection
shall accrue at all times after the Closing Date, including at
any time during which one or more conditions in Article V are not
met.
2.14 Computation of Fees and Interest. (a) All
computations of interest and fees shall be made on the basis of a
360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which interest or fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the
Company and the Lenders in the absence of manifest error. The
Administrative Agent will, at the request of the Company or any
Lender, deliver to the Company or such Lender, as the case may
be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate and the resulting interest
rate.
2.15 Payments by the Company. (a) All payments to be made
by the Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Administrative Agent
for the account of the Lenders to an account of the
Administrative Agent specified to the Company for such purpose,
and shall be made in Dollars and in immediately available funds,
no later than 12:00 noon (New York time) on the date specified
herein. The Administrative Agent will promptly distribute to
each applicable Lender its Pro Rata Share (or other applicable
share as expressly provided herein) of such payment in like funds
as received. Any payment received by the Administrative Agent
later than 12:00 noon (New York time) shall be deemed to have
been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following
Business Day (unless, in the case of a payment with respect to a
LIBOR Loan, the following Business Day is the first Business Day
of a calendar month, in which case such payment shall be due on
the preceding Business Day), and such extension of time shall in
such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Administrative Agent receives notice
from the Company prior to the date on which any payment is due to
the Lenders that the Company will not make such payment in full
as and when required, the Administrative Agent may assume that
the Company has made such payment in full to the Administrative
Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Lender on such
due date an amount equal to the amount then due such Lender. If
and to the extent the Company has not made such payment in full
to the Administrative Agent, each applicable Lender shall repay
to the Administrative Agent on demand such amount distributed to
such Lender, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to
such Lender until the date repaid.
2.16 Payments by the Lenders to the Administrative Agent.
(a) Unless the Administrative Agent receives notice from a
Lender on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior
to the date of such Borrowing, that such Lender will not make
available as and when required hereunder to the Administrative
Agent for the account of the Company the amount of such Lender's
Pro Rata Share of such Borrowing, the Administrative Agent may
assume that each applicable Lender has made such amount available
to the Administrative Agent in immediately available funds on the
Borrowing Date and the Administrative Agent may (but shall not be
required), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available
to the Administrative Agent in immediately available funds and
the Administrative Agent in such circumstances has made available
to the Company such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds
Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to
amounts owing under this subsection (a) shall be conclusive,
absent manifest error. If such amount is so made available, such
payment to the Administrative Agent shall constitute such
Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing
Date, the Administrative Agent will notify the Company of such
failure to fund and, upon demand by the Administrative Agent, the
Company shall pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at the
Applicable Margin.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any
obligation hereunder to make a Loan on such Borrowing Date, but
no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
2.17 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of
the Loans made by it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in
excess of its Pro Rata Share, such Lender shall immediately (a)
notify the Administrative Agent of such fact, and (b) purchase
from the other Lenders such participations in the Loans made by
them as shall be necessary to cause such purchasing Lender to
share the excess payment pro rata with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase
shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable
share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Company agrees that any Lender so
purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section
11.10) with respect to such participation as fully as if such
Lender were the direct creditor of the Company in the amount of
such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in
each case notify the Lenders following any such purchases or
repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms
and conditions set forth herein:
(i) the Issuing Lender agrees, (A) from time to time on
any Business Day during the period from the Closing Date to
the Expansion Loan Commitment Termination Date to issue
Letters of Credit for the account of the Company, and to
amend or renew Letters of Credit previously issued by it, in
accordance with subsections 3.2(c) and 3.2(d), and (B) to
honor properly drawn drafts under the Letters of Credit
issued by it; and
(ii) the Expansion Loan Lenders severally agree to
participate in Letters of Credit Issued for the account of
the Company; provided that the Issuing Lender shall not be
obligated to Issue, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "Issuance Date")
either (x) the Effective Amount of all L/C Obligations
exceeds the L/C Commitment or (y) the Effective Amount of
all L/C Obligations plus the aggregate amount of all
Expansion Loans exceeds the Expansion Loan Commitment.
Within the foregoing limit, and subject to the other terms
and conditions hereof, the Company's ability to obtain
Letters of Credit shall be fully revolving during the period
prior to the Expansion Loan Commitment Termination Date,
and, accordingly, the Company may, during the foregoing
period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Lender shall not be under any
obligation to Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the Issuing Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing
Lender or any request or directive (whether or not having
the force of law) from any Governmental Authority with
jurisdiction over the Issuing Lender shall prohibit, or
request that the Issuing Lender refrain from, the issuance
of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Lender in good
faith deems material to it;
(ii) Default or Event of Default shall at the time be
continuing, or the Issuing Lender has received written
notice from any Lender, the Administrative Agent or the
Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that
one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is after the Expansion Loan Commitment Termination
Date, unless all of the Lenders have approved such expiry
date in writing;
(iv) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
acceptable to the Issuing Lender, or the Issuance of a
Letter of Credit shall violate any applicable policies of
the Issuing Lender;
(v) such Letter of Credit is to support obligations
of the Company or any Subsidiary with respect to workers'
compensation or similar obligations;
(vi) such Letter of Credit is denominated in a
currency other than Dollars; or
(vii) such Letter of Credit is not a standby letter of
credit.
3.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Lender
(with a copy sent by the Company to the Administrative Agent) at
least five days (or such shorter time as the Issuing Lender and
the Administrative Agent may agree in a particular instance in
their sole discretion) prior to the proposed date of issuance.
Each such request for issuance of a Letter of Credit shall be by
facsimile, confirmed immediately in an original writing, in the
form of an L/C Application, and shall specify in form and detail
satisfactory to the Issuing Lender: (i) the proposed date of
issuance of the Letter of Credit (which shall be a Business Day);
(ii) the face amount of the Letter of Credit; (iii) the expiry
date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing
thereunder; (vi) the full text of any certificate to be presented
by the beneficiary in case of any drawing thereunder; and (vii)
such other matters as the Issuing Lender may require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application
or L/C Amendment Application from the Company and, if not, the
Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the Issuing Lender has received, on or before
the Business Day immediately preceding the date on which the
Issuing Lender is to issue a requested Letter of Credit, (A)
notice from the Administrative Agent directing the Issuing Lender
not to issue such Letter of Credit because such issuance is not
then permitted under subsection 3.1(a) as a result of the
limitations set forth therein or (B) a notice described in
subsection 3.1(b)(ii), then, subject to the terms and conditions
hereof, the Issuing Lender shall, on the requested date, issue a
Letter of Credit for the account of the Company in accordance
with the Issuing Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Expansion Loan Commitment
Termination Date, the Issuing Lender will, upon the written
request of the Company received by the Issuing Lender (with a
copy sent by the Company to the Administrative Agent) at least
five days (or such shorter time as the Issuing Lender and the
Administrative Agent may agree in a particular instance in their
sole discretion) prior to the proposed date of amendment, amend
any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of
an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuing Lender: (i) the Letter of Credit to
be amended; (ii) the proposed date of amendment of such Letter of
Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not have any
obligation to amend any Letter of Credit if: (A) the Issuing
Lender would have no obligation at such time to issue such Letter
of Credit in its amended form under the terms of this Agreement;
or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit. The
Administrative Agent will promptly notify the Lenders of the
receipt by it of any L/C Application or L/C Amendment
Application.
(d) The Issuing Lender and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Expansion Loan
Commitment Termination Date, at the option of the Company and
upon the written request of the Company received by the Issuing
Lender (with a copy sent by the Company to the Administrative
Agent) at least five days (or such shorter time as the Issuing
Lender and the Administrative Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of
notification of renewal, the Issuing Lender shall be entitled to
authorize the automatic renewal of any Letter of Credit. Each
such request for renewal of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the
form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the Issuing Lender: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of
renewal of such Letter of Credit (which shall be a Business Day);
(iii) the revised expiry date of such Letter of Credit (which,
unless all Lenders otherwise consent, shall be prior to the
Expansion Loan Commitment Termination Date); and (iv) such other
matters as the Issuing Lender may require. The Issuing Lender
shall not be under any obligation to renew any Letter of Credit
if: (A) the Issuing Lender would have no obligation at such time
to issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of such
Letter of Credit does not accept the proposed renewal of such
Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Lender that
such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuing Lender would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with
this subsection 3.2(d) upon the request of the Company but such
Issuing Lender shall not have received any L/C Amendment
Application from the Company with respect to such renewal or
other written direction by the Company with respect thereto, the
Issuing Lender shall nonetheless be permitted to allow such
Letter of Credit to renew, and the Company and the Lenders hereby
authorize such renewal, and, accordingly, the Issuing Lender
shall be deemed to have received an L/C Amendment Application
from the Company requesting such renewal.
(e) The Issuing Lender may, at its election (or as required
by the Administrative Agent at the direction of the Required
Lenders), deliver any notice of termination or other
communication to any Letter of Credit beneficiary or transferee,
and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of
any Letter of Credit to be a date not later than the Expansion
Loan Commitment Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The Issuing Lender will deliver to the Administrative
Agent (and to any Lender requesting the same), concurrently or
promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising
bank or a beneficiary, a true and complete copy of each such
Letter of Credit or amendment to or renewal of a Letter of
Credit.
3.3 Risk Participations, Drawings and Reimbursements.
Immediately upon the Issuance of each Letter of Credit, each
Expansion Loan Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Lender a
participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Lender's
Pro Rata Share times (ii) the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing,
respectively.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Issuing Lender will promptly notify the Company and the
Administrative Agent. The Company shall reimburse the Issuing
Lender prior to 12:00 noon (New York time), on each date that any
amount is paid by the Issuing Lender under any Letter of Credit
(each such date, an "Honor Date"), in an amount equal to the
amount so paid by the Issuing Lender. If the Company fails to
reimburse the Issuing Lender for the full amount of any drawing
under any Letter of Credit by 12:00 noon (New York time) on the
Honor Date, the Issuing Lender will promptly notify the
Administrative Agent and the Administrative Agent will promptly
notify each Lender thereof, and the Company shall be deemed to
have requested that Base Rate Loans be made by the Expansion Loan
Lenders to be disbursed on the Honor Date under such Letter of
Credit, subject to the amount of the unutilized portion of the
Expansion Loan Commitment and subject to the conditions set forth
in Section 5.3. Any notice given by the Issuing Lender or the
Administrative Agent pursuant to this subsection 3.3(b) may be
oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Expansion Loan Lender shall upon any notice
pursuant to subsection 3.3(b) make available to the
Administrative Agent for the account of the Issuing Lender an
amount in Dollars and in immediately available funds equal to its
Pro Rata Share of the amount of the drawing, whereupon the
participating Lenders shall (subject to subsection 3.3(d)) each
be deemed to have made an Expansion Loan consisting of a Base
Rate Loan to the Company in such amount. If any Lender so
notified fails to make available to the Administrative Agent for
the account of the Issuing Lender the amount of such Lender's Pro
Rata Share of the amount of such drawing by no later than 2:00
p.m. (New York time) on the Honor Date, then interest shall
accrue on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a rate
per annum equal to the Federal Funds Rate in effect from time to
time during such period. The Administrative Agent will promptly
give notice of the occurrence of the Honor Date, but failure of
the Administrative Agent to give any such notice on the Honor
Date or in sufficient time to enable any Lender to effect such
payment on such date shall not relieve such Lender from its
obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is
not converted into Expansion Loans consisting of Base Rate Loans
in whole or in part, because of the Company's failure to satisfy
the conditions set forth in Section 5.3 or for any other reason,
the Company shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Margin for Base Rate Loans plus
2% per annum, and each Lender's payment to the Issuing Lender
pursuant to subsection 3.3(c) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 3.3.
(e) Each Expansion Loan Lender's obligation in
accordance with this Agreement to make Expansion Loans or L/C
Advances, as contemplated by this Section 3.3, as a result of a
drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Lender and
shall not be affected by any circumstance, including (i) any set-
off, counterclaim, recoupment, defense or other right which such
Lender may have against the Issuing Lender, the Company or any
other Person for any reason whatsoever; (ii) the existence of an
Event of Default, an Unmatured Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing;
provided that (a) no Lender shall be obligated to make Expansion
Loans or L/C Advances pursuant to this Section 3.3 to the extent
that the gross negligence or wilful misconduct of the L/C Issuer
has released the Company from its obligation to reimburse such
amounts as herein provided, and (b) each Lender's obligation to
make Expansion Loans under this Section 3.3 is subject to the
conditions set forth in Section 5.3.
3.4 Repayment of Participations. (a) Upon (and only upon)
receipt by the Administrative Agent for the account of the
Issuing Lender of immediately available funds from the Company
(i) in reimbursement of any payment made by the Issuing Lender
under a Letter of Credit with respect to which any Lender has
paid the Administrative Agent for the account of the Issuing
Lender for such Lender's participation in such Letter of Credit
pursuant to Section 3.3 or (ii) in payment of interest thereon,
the Administrative Agent will pay to each Lender, in the same
funds as those received by the Administrative Agent for the
account of the Issuing Lender, the amount of such Lender's Pro
Rata Share of such funds, and the Issuing Lender shall receive
the amount of the Pro Rata Share of such funds of any Lender that
did not so pay the Administrative Agent for the account of the
Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender
is required at any time to return to the Company, or to a
trustee, receiver, liquidator or custodian, or to any official in
any Insolvency Proceeding, any portion of any payment made by the
Company to the Administrative Agent for the account of the
Issuing Lender pursuant to subsection 3.4(a) in reimbursement of
a payment made under a Letter of Credit or interest or fee
thereon, each Lender shall, on demand of the Administrative
Agent, forthwith return to the Administrative Agent or the
Issuing Lender the amount of its Pro Rata Share of any amount so
returned by the Administrative Agent or the Issuing Lender plus
interest thereon from the date such demand is made to the date
such amount is returned by such Lender to the Administrative
Agent or the Issuing Lender, at a rate per annum equal to the
Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the
Company agree that, in paying any drawing under a Letter of
Credit, the Issuing Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificate
expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such
document.
(b) Neither the Issuing Lender nor any of its
correspondents, participants or assignees shall be liable to any
Lender for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders
(including the Required Lenders, as applicable); (ii) any action
taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity
or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided that this assumption is not
intended to, and shall not, preclude the Company's pursuing such
rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. Neither the
Issuing Lender nor any of its correspondents, participants or
assignees shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.6; provided
that, anything in such clauses to the contrary notwithstanding,
the Company may have a claim against the Issuing Lender, and the
Issuing Lender may be liable to the Company, to the extent, but
only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay
under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of such Letter of Credit.
In furtherance and not in limitation of the foregoing: (i) the
Issuing Lender may accept documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii)
the Issuing Lender shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse
the Issuing Lender for a drawing under a Letter of Credit, and to
repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Expansion Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Company in respect of any Letter of
Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit
(or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Lender under any Letter
of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the Issuing Lender under
any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of
the obligations of the Company in respect of any Letter of
Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company or a
guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit
remains outstanding and partially or wholly undrawn as of the
Expansion Loan Commitment Termination Date, then the Company
shall immediately Cash Collateralize the L/C Obligations in an
amount equal to the maximum amount then available to be drawn
under all Letters of Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to
the Administrative Agent for the account of each Lender a letter
of credit fee with respect to each Letter of Credit equal to the
L/C Fee Rate per annum of the average daily maximum amount
available to be drawn on such Letter of Credit, computed on a
quarterly basis in arrears on each Quarterly Date.
(b) The Company shall pay to the Issuing Lender a
letter of credit fronting fee for each Letter of Credit equal to
0.25% per annum of the average daily maximum amount available to
be drawn on such Letter of Credit, computed on a quarterly basis
in arrears on each Quarterly Date and on the Expansion Loan
Commitment Termination Date (or such later date on which such
Letter of Credit shall expire or be fully drawn).
(c) The letter of credit fees payable under subsection
3.8(a) and the fronting fees payable under subsection 3.8(b)
shall be due and payable quarterly in arrears on each Quarterly
Date during which Letters of Credit are outstanding, commencing
on the first Quarterly Date to occur after the Closing Date,
through the Expansion Loan Commitment Termination Date (or such
later date upon which all outstanding Letters of Credit shall
expire or be fully drawn), with the final payment to be made on
the Expansion Loan Commitment Termination Date (or such later
date).
(d) The Company shall pay to the Issuing Lender from
time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs and
charges, of the Issuing Lender relating to letters of credit as
from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the
International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter
of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to
each Lender or the Administrative Agent under this Agreement and
any other Loan Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition,
the Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless
each Lender and the Administrative Agent for the full amount of
Taxes or Other Taxes (including any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section) paid
by the Lender or the Administrative Agent and any liability
(including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days after the
date the Lender or the Administrative Agent makes written demand
therefor.
(c) If the Company shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Lender or the Administrative Agent,
then:
(i) the sum payable shall be increased as necessary so
that after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section) such Lender or
the Administrative Agent, as the case may be, receives an
amount equal to the sum it would have received had no such
deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(d) Within 30 days after the date of any payment by
the Company of Taxes or Other Taxes, the Company shall furnish
the Administrative Agent the original or a copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Administrative Agent.
(e) The Company shall not be required to pay an
additional amount to, or indemnify, any Lender or the
Administrative Agent pursuant to this Section 4.1 to the extent
that (i) the obligation to withhold or pay such amount existed on
the Initial Date (as hereinafter defined) or (ii) the obligation
to withhold or pay such amount would not have arisen but for the
failure of the Administrative Agent or such Lender to comply with
the provisions of Section 10.10 of this Agreement. For purposes
of this subsection 4.1(e), "Initial Date" shall mean (a) in the
case of the Administrative Agent and any Lender that is a
signatory hereto, the date of this Agreement, (b) in the case of
any Person which subsequently becomes a Lender hereunder, the
date of the applicable Assignment and Acceptance, and (c) in the
case of any Participant, the date on which it becomes a
Participant.
(f) If the Company is required to pay additional
amounts to any Lender or the Administrative Agent pursuant to
subsection (c) of this Section, then such Lender shall use
reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so
as to eliminate any such additional payment by the Company which
may thereafter accrue, if such change in the judgment of such
Lender is not otherwise disadvantageous to such Lender.
4.2 Illegality. (a) If any Lender determines that the
introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of
any Requirement of Law, has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for such Lender or its applicable Lending Office to
make LIBOR Loans, then, on notice thereof by the Lender to the
Company through the Administrative Agent, any obligation of such
Lender to make LIBOR Loans shall be suspended until such Lender
notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to
maintain any LIBOR Loan, the Company shall, upon its receipt of
notice of such fact and demand from such Lender (with a copy to
the Administrative Agent), prepay in full such LIBOR Loan,
together with interest accrued thereon and amounts required under
Section 4.4, either on the last day of the Interest Period
thereof, if such Lender may lawfully continue to maintain such
LIBOR Loan to such day, or on such earlier date on which such
Lender may no longer lawfully continue to maintain such LIBOR
Loan (as determined by such Lender). If the Company is required
to so prepay any LIBOR Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Lender, in
the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or
maintain LIBOR Loans has been terminated or suspended pursuant to
subsection (a) or (b) above, all Loans which would otherwise be
made by such Lender as LIBOR Loans shall be instead Base Rate
Loans.
(d) Before giving any notice to the Administrative
Agent under this Section, the affected Lender shall designate a
different Lending Office with respect to its LIBOR Loans if such
designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of such Lender, be
illegal or otherwise disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) If any
Lender determines that, due to either (i) the introduction of or
any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of
the LIBO Rate) in or in the interpretation of any law or
regulation or (ii) compliance by such Lender with any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any
increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any LIBOR Loan or participating in
Letters of Credit or, in the case of any Issuing Lender, any
increase in the cost to such Issuing Lender of agreeing to issue,
issuing or maintaining any Letter of Credit or of agreeing to
make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Company shall be liable for, and
shall from time to time, upon demand (with a copy of such demand
to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional
amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender with any Capital Adequacy
Regulation, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender and (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy) determines that the amount of such
capital is increased as a consequence of any of its Commitments,
loans, credits or obligations under this Agreement, then, upon
demand of such Lender to the Company through the Administrative
Agent, the Company shall pay to such Lender, from time to time as
specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
4.4 Funding Losses. The Company shall reimburse each
Lender and hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely
basis any payment of principal of any LIBOR Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/
Continuation;
(c) the failure of the Company to make any prepayment
in accordance with any notice delivered under Section 2.8;
(d) the prepayment (including pursuant to Section 2.8)
or other payment (including after acceleration thereof) of a
LIBOR Loan on a day that is not the last day of the relevant
Interest Period; or
(e) the automatic conversion under Section 2.5 of any
LIBOR Loan to a Base Rate Loan on a day that is not the last day
of the relevant Interest Period;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its LIBOR
Loans or from fees payable to terminate the deposits from which
such funds were obtained. For purposes of calculating amounts
payable by the Company to the Lenders under this Section and
under subsection 4.3(a), each LIBOR Loan made by a Lender (and
each related reserve, special deposit or similar requirement)
shall be conclusively deemed to have been funded at the LIBO Rate
for such LIBOR Loan by a matching deposit or other borrowing in
the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such LIBOR Loan is in fact so
funded.
4.5 Inability to Determine Rates. If the Administrative
Agent determines that for any reason adequate and reasonable
means do not exist for determining the LIBO Rate for any
requested Interest Period with respect to a proposed LIBOR Loan,
or the Required Lenders determine (and notify the Administrative
Agent) that the LIBO Rate applicable pursuant to subsection
2.12(a) for any requested Interest Period with respect to a
proposed LIBOR Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain
LIBOR Loans hereunder shall be suspended until the Administrative
Agent or the Required Lenders, as the case may be, revokes such
notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company
does not revoke such Notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but
such Loans shall be made, converted or continued as Base Rate
Loans instead of LIBOR Loan.
4.6 Certificates of Lenders. Any Lender claiming
reimbursement or compensation under this Article IV shall deliver
to the Company (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the amount payable
to such Lender hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error.
4.7 Substitution of Lenders. Upon the receipt by the
Company from any Lender (an "Affected Lender") of a claim for
compensation under Section 4.1 or 4.3 or a notice of the type
described in subsection 4.2(a) or (b), the Company may: (i)
request the Affected Lender (which may accept or reject such
request) to use its best efforts to obtain a replacement bank or
financial institution satisfactory to the Company to acquire and
assume all or a ratable part of all of such Affected Lender's
Loans and Commitment (a "Replacement Lender"); (ii) request one
more of the other Lenders (which may accept or reject such
request) to acquire and assume all or part of such Affected
Lender's Loans and Commitments; or (iii) designate a Replacement
Lender. Any such designation of a Replacement Lender under
clause (i) or (iii) shall be subject to the prior written consent
of the Administrative Agent and each Issuing Lender. No Lender
shall be under any obligation to assign any of its Loans or
Commitments to any Replacement Lender until it shall received
payment in full of all principal, interest and other amounts
payable to it hereunder.
4.8 Survival. The agreements and obligations of the
Company in this Article IV shall survive the payment of all other
Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions. The
obligation of each Lender to make its initial Credit Extension is
subject to the conditions that the Administrative Agent shall
have received all of the following documents, in form and
substance satisfactory to the Administrative Agent and each
Lender, and in sufficient copies for the Administrative Agent and
each Lender:
(a) Credit Agreement and Notes. This Agreement and
the Notes executed by each party thereto.
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of each of the Company and each Guarantor
authorizing the transactions contemplated hereby, certified
as of the Closing Date by the Secretary or an Assistant
Secretary of such entity; and
(ii) A certificate of the Secretary or an Assistant
Secretary of each of the Company and each Guarantor
certifying the names and true signatures of the officers of
such entity authorized to execute, deliver and perform the
Loan Documents to be delivered by such entity hereunder.
(c) Certificate. A certificate signed by a
Responsible Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct on and as of such date, as
though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default
exists or will result from the initial Credit Extensions;
(iii) no event or circumstance has occurred since
March 31, 1997 that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(iv) there have been no material changes with respect
to each parcel of Real Property referred to in subsection
(i) (below) since the preparation of, and with respect to
the matters addressed in, any environmental survey and
assessment prepared by Pilko & Associates with respect to
the certain Subsidiaries in connection with the Existing
Credit Agreement; and
(v) before and after giving effect to the Loans and
the other transactions contemplated by the Loan Documents,
neither the Company nor any of its Subsidiaries is or will
be rendered insolvent, nor will any of them be left with
unreasonably small capital with which to engage in their
respective businesses, nor will any of them have incurred
debts beyond their ability to pay such debts as they mature.
(d) Legal Opinions. Opinions of (i) Proskauer Rose
Goetz & Mendelsohn, New York counsel to the Company and the
Guarantors, substantially in the form of Exhibit D; and (ii) such
local counsel to the Company as the Administrative Agent shall
require, and covering such matters as the Administrative Agent
shall require.
(e) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Closing Date, together with
Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute the Administrative Agent's
reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such
estimate shall not thereafter preclude final settling of accounts
between the Company and the Administrative Agent).
(f) Guaranty. An Amended and Restated Guaranty,
substantially in the form of Exhibit E (the "Guaranty"), executed
by each Guarantor.
(g) Security Agreement, etc. An Amended and Restated
Security Agreement, substantially in the form of Exhibit F (the
"Security Agreement"), issued by the Company and each Guarantor,
together with evidence, reasonably satisfactory to the
Administrative Agent, that all instruments and documents
(including financing statements, leasehold assignments and
landlord's waivers) necessary or desirable to perfect and protect
the Administrative Agent's Lien on the collateral granted under
the Security Agreement have been signed and delivered to the
Administrative Agent in appropriate form for filing or recording
(if necessary).
(h) Pledge Agreements. An Amended and Restated Pledge
Agreement, substantially in the form of Exhibit G-1 (the "Company
Pledge Agreement"), issued by the Company, and, with respect to
each Subsidiary, an Amended and Restated Pledge Agreement,
substantially in the form of Exhibit G-2 (each a "Subsidiary
Pledge Agreement"), issued by each Subsidiary which owns capital
stock of any other Person, in each case together with all
certificates representing the stock pledged thereunder and
appropriate stock powers executed in blank.
(i) Real Estate Documents. With respect to each
parcel of Real Property owned by the Company or any Subsidiary, a
duly executed Mortgage providing for a fully perfected Lien, in
favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, in all right, title and
interest of the Company and such Subsidiary to such Real
Property, superior in right to any Lien, existing or future,
which the Company or any Subsidiary or any creditor thereof or
purchaser therefrom, or any other Person, may have against such
Real Property, together with:
(i) an ALTA Loan Title Insurance Policy, issued by an
insurer acceptable to the Administrative Agent, insuring the
Administrative Agent's Lien on such Real Property and
containing such endorsements as the Administrative Agent may
reasonably require (it being understood that the amount of
coverage, exceptions to coverage and status of title set
forth in such policy shall be reasonably acceptable to the
Administrative Agent);
(ii) copies of all documents of record concerning such
Real Property as shown on the commitment for the ALTA Loan
Title Insurance Policy referred to above;
(iii) original or certified copies of all insurance
policies required to be maintained with respect to such Real
Property by this Agreement, any Mortgage or any other Loan
Document, together with flood certificates for such Real
Property;
(iv) copies of all permits and governmental
authorizations required for the siting, construction and
operation of all landfills and transfer structure operated,
or proposed to be operated, by the Company or the applicable
Subsidiary on such Real Property, all in such form and
detail as shall be acceptable to the Required Lenders; and
(v) a survey certified to the Administrative Agent
meeting such standards as the Required Lenders may
reasonably establish and otherwise reasonably satisfactory
to the Required Lenders.
(j) Key-Man Life Policy. A copy of the Key-Man
Insurance Policy (naming the Administrative Agent as loss payee
and additional insured) covering Richard DeYoung.
(k) Equity Offering. Evidence that the Company shall
have received net cash proceeds from the issuance and sale of
additional shares of its common stock in an amount at least equal
to $40,000,000.
(l) Former Lenders. Evidence that (i) the outstanding
principal amount of each Loan (as defined in the Existing Credit
Agreement) held by the Former Lenders, together with accrued
interest thereon and all other amounts owing by the Company to
the Former Lenders under the Existing Credit Agreement shall have
been paid in full and (ii) each of the Former Lenders shall have
consented to its no longer being a party to this Agreement.
(m) Pro Forma Compliance Certificate. The certificate
referred to in the definition of "Applicable Margin" in Section
1.1.
(n) Other Documents. Such other approvals, opinions,
documents or materials as the Administrative Agent or any Lender
may request.
5.2 Additional Conditions to Expansion Loans. The
obligation of each Lender to fund any Expansion Loan on the
occasion of any Borrowing (including the initial Borrowing)
shall, in addition to the satisfaction of all conditions set
forth in Sections 5.1 and 5.3, be subject to the satisfaction of
each of the following conditions precedent (provided that, in the
case of a Borrowing of Expansion Loans in an aggregate amount
that is equal to or less than $12,000,000, only the conditions
referred to in clauses (c) and (d) below, and a certificate of a
senior officer of the Company as to compliance with the condition
in clause (f) below, are required):
(a) Purchase Agreement. Each Lender shall have
received a true and complete copy of the fully executed purchase
agreement relating to the Eligible Acquisition (or an unsigned
draft thereof that conforms in all material respects with the
fully executed purchase agreement), the terms of which shall be
reasonably satisfactory to the Administrative Agent.
(b) Consent of Lenders. The Majority Lenders shall
have consented to such Borrowing.
(c) Fact Sheet and Certificate of Senior Financial
Officer. The Administrative Agent shall have received (x) an
appropriately completed report in substantially the form of
Exhibit J-1 hereto and (y) a certificate of a senior financial
officer of the Company in form attached as Exhibit J-2 hereto,
and otherwise in form and substance satisfactory to the
Administrative Agent setting forth:
(i) calculations in reasonable detail setting forth:
(A) the combined pro forma effect of the
Eligible Acquisition on the Company's consolidated
statements of income and cash flow and balance sheet on
both an historical and a projected basis;
(B) that on a pro forma basis after giving
effect to the proposed Eligible Acquisition, no
Unmatured Event of Default or Event of Default has
occurred and is continuing or would result therefrom;
(ii) projections demonstrating or showing the
following:
(A) the sources and uses of funds relating to
the Eligible Acquisition;
(B) that, after giving effect to all
Indebtedness to be incurred in connection with the
applicable Eligible Acquisition (based on reasonable
adjustments for non-recurring expenses, extraordinary
items and expected operating efficiencies), the Company
will be in compliance with Sections 8.10, 8.11, 8.12,
8.13, and 8.14, respectively;
(C) financial projections of the Company, which
financial projections shall demonstrate likely future
compliance with the Sections referred to in clause (B)
above, for the four succeeding fiscal quarters after
the Eligible Acquisition; and
(D) the amount of good faith estimated capital
expenditures that will be incurred over the remaining
term of this Agreement that are specifically
attributable to the Eligible Acquisition, in such
detail (including the amount of such capital
expenditures to be expended in each fiscal year
remaining over the term of this Agreement) as the
Administrative Agent may reasonably request;
(iii) Financial information that demonstrates that
Target Co. (or in the case of an asset purchase, the
applicable line of business or business segment of the
Target Co.) has generated positive earnings before interest,
taxes, depreciation and amortization (based on actual
results, or on pro forma results based on reasonable
adjustments for non-recurring or extraordinary operating
expenses), for the 12 consecutive months immediately prior
to the proposed Eligible Acquisition; and
(iv) Calculations demonstrating that the maximum Total
Consideration Payable with respect to Target Co. (or in the
case of an asset purchase, the applicable line of business
or business segment of the Target Co.) is not greater than a
multiple of 6.0 times earnings before interest, taxes,
depreciation and amortization (based on actual results, or
on pro forma results based on reasonable adjustments for
non-recurring or extraordinary operating expenses), for the
12 consecutive months immediately prior to the proposed
Eligible Acquisition.
provided that, in the case of a Borrowing of Expansion Loans in
an aggregate amount that is equal to or less than $12,000,000,
this condition (c) shall be satisfied by the Administrative
Agent's receipt of the following:
(x) an appropriately completed report in substantially
the form of Exhibit J-1;
(y) a certificate of a senior financial officer of the
Company to the effect set forth in the foregoing clauses
(i)(B) and (ii)(B); and
(z) the information required in the foregoing clauses
(ii)(A), (ii)(D), (iii) and (iv).
(d) Perfected Security Interest. Compliance by the
Company with the provisions of Sections 7.15 and 7.16.
(e) Environmental Audit and/or Review. Each of the
Lenders shall have received an environmental audit and/or review
of Target Co. with the results and methodology thereof reasonably
satisfactory to the Administrative Agent performed by an engineer
acceptable to the Administrative Agent (or, with the consent of
the Administrative Agent, the Company's environmental compliance
officer) with respect to all acquisitions of real property. If
requested by the Administrative Agent, in the case of any
acquisition of personal property, the Administrative Agent shall
have received an audit and/or review of continuing operations
with the results thereof satisfactory to the Administrative Agent
and completed by consultants satisfactory to the Administrative
Agent. If requested by the Company, the Administrative Agent
shall provide the Company an opportunity to review and comment on
such audit or review.
(f) No Material Litigation; Satisfactory Legal Form.
Evidence of the absence of any material litigation,
administrative or regulatory proceedings with respect to or
affecting Target Co. or the properties of Target Co. that are the
subject of the Eligible Acquisition. All documents executed or
submitted pursuant hereto by or on behalf of the Company or any
of its Subsidiaries or any other obligors shall be reasonably
satisfactory in form and substance to the Administrative Agent
and its counsel; the Administrative Agent and its counsel shall
have received all information, approvals, opinions, documents or
instruments as the Administrative Agent and its counsel may
reasonably request.
5.3 Conditions to All Credit Extensions. The obligation of
each Lender to make any Loan to be made by it and the obligation
of the Issuing Lender to Issue any Letter of Credit is subject to
the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Issuance Date:
(a) Notice, Application. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing;
and in the case of any Issuance of any Letter of Credit, the
Issuing Lender and the Administrative Agent shall have received
an L/C Application or L/C Amendment Application, as required
under Section 3.2.
(b) Continuation of Representations and Warranties.
The representations and warranties in Article VI shall be true
and correct on and as of such Borrowing Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date
or Issuance Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they
shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or
Unmatured Event of Default shall exist or shall result from such
Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C Amendment
Application submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the
date of such notice and as of the applicable Borrowing Date or
Issuance Date, that the conditions in this Section 5.3 are
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative
Agent and each Lender that:
6.1 Corporate Existence and Power. The Company and each of
its Subsidiaries:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals (i) to own its
assets and to carry on its business and (ii) to execute, deliver
and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the
conduct of its business requires such qualification or license;
and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d), to
the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company of this
Agreement and each other Loan Document to which the Company is
party, and the execution, delivery and performance by each
Guarantor of the Guaranty and each other Loan Document to which
such Guarantor is a party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Company's or
any Guarantor's Organization Documents;
(b) conflict with or result in a breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which the Company or any
Guarantor is a party or any order, injunction, writ or decree of
any Governmental Authority to which the Company or any Guarantor
or any of their respective assets is subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or
enforcement against, the Company or any Guarantor of any Loan
Document.
6.4 Binding Effect. Each Loan Document to which the
Company or any Guarantor is a party constitutes the legal, valid
and binding obligation of the Company or such Guarantor,
enforceable against the Company or such Guarantor in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.5 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the
Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the
Company or any Subsidiary or any of their respective properties
which: (a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated
hereby or thereby; or (b) would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary
restraining order or other order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or
therein provided.
6.6 No Default. No Event of Default or Unmatured Event of
Default exists or would result from the incurring of any
Obligations by the Company. As of the Closing Date, neither the
Company nor any Subsidiary is in default under or with respect to
any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to
have a Material Adverse Effect, or that would, if such default
had occurred after the Closing Date, create an Event of Default
under subsection 9.1(e).
6.7 ERISA Compliance.
(a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and
other federal or state law. Each Plan which is intended to
qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the best knowledge of
the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate has
made all required contributions to any Plan subject to Section
412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no contribution failure has occurred with
respect to a Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA; (iii) no Pension Plan has any Unfunded
Pension Liability; (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (v) neither the Company nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (vi) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or
4212(c) or ERISA.
6.8 Use of Proceeds; Margin Regulations. The proceeds of
the Loans are to be used solely for the purposes set forth in and
permitted by Sections 7.12 and 8.7. Neither the Company nor any
Subsidiary is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.9 Title to Properties. Each of the Company and each
Subsidiary has good record and marketable title in fee simple to,
or a valid leasehold interest in, all real property necessary or
used in the ordinary conduct of its businesses, except for such
defects in title as could not, individually or in the aggregate,
have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed
all Federal and other material tax returns and reports required
to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise
due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed
tax assessment against the Company or any Subsidiary that would,
if made, have a Material Adverse Effect.
6.11 Financial Condition. The Company's audited
consolidated financial statements as at December 31, 1996, and
the related statements of earnings and cash flow of the Company
and each of its Subsidiaries and the unaudited balance sheets of
the Company and its Subsidiaries as at March 31, 1997 and the
related statements of income, retained earnings and cash flow of
the Company and its Subsidiaries for the three-month period ended
on such date, copies of which have been furnished to the
Administrative Agent and each Lender, have been prepared in
accordance with GAAP consistently applied, and present fairly the
consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their
operations for the periods then ended, except as otherwise
indicated in the notes thereto, and, subject, in the case of
interim financials, to normal year-end audit adjustments.
(b) Since March 31, 1997 there has been no Material
Adverse Effect.
6.12 Environmental Compliance.
(a) No Violations. Except as set forth in Schedule
6.12, neither the Company nor any Subsidiary, nor any operator of
the Company's or any Subsidiary's properties, is in violation, or
alleged violation, of any judgment, decree, order, law, permit,
license, rule or regulation pertaining to environmental matters,
including those arising under the Resource Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 ("SARA") or any other
Environmental Law which (i) in any single case, requires
expenditures in any three-year period of $500,000 or more by the
Company and its Subsidiaries in penalties and/or for
investigative, removal or remedial actions or (ii) individually
or in the aggregate otherwise might reasonably be expected to
have a Material Adverse Effect.
(b) Notices. Except as set forth in Schedule 6.12,
neither the Company nor any Subsidiary has received notice (other
than, in the case of clause (c) below, an Immaterial Notice) from
any third party, including any Federal, state or local
governmental authority: (a) that any one of them has been
identified by the U.S. Environmental Protection Agency as a
potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300
Appendix B; (b) that any hazardous waste, as defined by 42 U.S.C.
Sec.6903(5), any hazardous substance as defined by 42 U.S.C.
Sec.9601(14), any pollutant or contaminant as defined by 42
U.S.C. Sec.9601(33) or any toxic substance, oil or hazardous
material or other chemical or substance regulated by any
Environmental Law, excluding household hazardous waste (all of
the foregoing, "Hazardous Substances"), which any one of them has
generated, transported or disposed of has been found at any site
at which a Federal, state or local agency or other third party
has conducted a remedial investigation, removal or other response
action pursuant to any Environmental Law; (c) that the Company or
any Subsidiary must conduct a remedial investigation, removal,
response action or other activity pursuant to any Environmental
Law; or (d) of any material Environmental Claim.
(c) Handling of Hazardous Substances. Except as set
forth in Schedule 6.12: (a) no portion of the Real Property or
other assets of the Company or any Subsidiary has been used for
the handling, processing, storage or disposal of Hazardous
Substances except in accordance in all material respects with
applicable Environmental Laws (other than any Immaterial Law);
and no underground tank or other underground storage receptacle
for Hazardous Substances is located on such properties; (b) in
the course of any activities conducted by the Company, any
Subsidiary or the operators of any Real Property, no Hazardous
Substances have been generated or are being used on such
properties except in accordance in all material respects with
applicable Environmental Laws (other than any Immaterial Law);
(c) there have been no Releases or threatened Releases of
Hazardous Substances on, upon, into or from any Real Property or
other assets of the Company or any Subsidiary, which Releases
singly or in the aggregate might reasonably be expected to have a
material adverse effect on the value of such Real Property or
assets; (d) to the best of the Company's knowledge, there have
been no Releases on, upon, from or into any real property in the
vicinity of the Real Property or other assets of the Company or
any Subsidiary which, through soil or groundwater contamination,
may have come to be located on, and which might reasonably be
expected to have a material adverse effect on the value of, the
Real Property or other assets of the Company or any Subsidiary;
and (e) any Hazardous Substances generated by the Company and its
Subsidiaries have been transported offsite only by properly
licensed carriers and delivered only to treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been
and are, to the best of the Company's knowledge, operating in
compliance with such permits and applicable Environmental Laws.
(d) Clean-Ups. Except as set forth in Schedule 6.12,
none of the Real Property or other assets of the Company or any
Subsidiary is or will be subject to any applicable environmental
clean-up responsibility law or environmental restrictive transfer
law or regulation, by virtue of the transactions set forth herein
and contemplated hereby.
(e) Permits and Governmental Authority. All material
permits or other governmental authorizations required for the
siting, construction and operation of all landfills and transfer
stations currently owned or operated by the Company and its
Subsidiaries have been obtained and remain in full force and
effect and are not subject to any appeals or further proceedings
or to any unsatisfied conditions that may allow material
modification or revocation. The Company and its Subsidiaries are
not in violation of any such permits.
(f) Investigations. The Company and its Subsidiaries
have taken all reasonable steps to investigate the past and
present condition and usage of the Real Properties and the
operations conducted by the Company and its Subsidiaries.
6.13 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary is an "Investment
Company" within the meaning of the Investment Company Act of
1940. The Company is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability
to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor
any Subsidiary is a party to or bound by any Contractual
Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which could reasonably be
expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc. The
Company and its Subsidiaries own or are licensed or otherwise
have the right to use all of the patents, trademarks, service
marks, trade names, copyrights, contractual franchises,
authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of
the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed,
or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person.
No claim or litigation regarding any of the foregoing is pending
or, to the knowledge of the Company, threatened, and no patent,
invention, device, application, principle or any statute, law,
rule, regulation, standard or code is pending or, to the
knowledge of the Company, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
6.16 Subsidiaries. As of the Closing Date, the Company has
no Subsidiaries other than those specifically disclosed in part
(a) of Schedule 6.16 hereto and has no equity investments in any
other corporation or entity other than those specifically
disclosed in part (b) of Schedule 6.16.
6.17 Insurance. Set forth in Schedule 6.17 is a complete
and accurate summary of the property and casualty insurance
program carried by the Company and its Subsidiaries on the
Closing Date, including the names of insurers, policy numbers,
expiration dates, amounts to coverage, types of coverage, the
annual premiums, Best's policyholder's and financial size ratings
of the insurers, exclusions, deductibles and self-insured
retention and the details of any retrospective rating plan,
fronting arrangement or any other self-insurance or risk
assumption agreed to by the Company or any Subsidiary or imposed
upon the Company or any Subsidiary by any such insurer. Such
summary also includes any self-insurance program that is in
effect.
6.18 Solvency, etc. On the Closing Date (or, in the case
of any Person which becomes a Guarantor after the Closing Date,
on the date such Person becomes a Guarantor), and immediately
prior to and after giving effect to the Issuance of each Letter
of Credit and each Borrowing hereunder and the use of the
proceeds thereof, (a) each of the Company's and each Guarantor's
assets will exceed its liabilities and (b) each of the Company
and each Guarantor will be solvent, will be able to pay its debts
as they mature, will own property with fair saleable value
greater than the amount required to pay its debts and will have
capital sufficient to carry on its business as then constituted.
6.19 Full Disclosure. None of the representations or
warranties made by the Company or any Subsidiary in the Loan
Documents as of the date such representations and warranties are
made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the
Loan Documents (including the offering and disclosure materials
delivered by or on behalf of the Company to the Lenders prior to
the Closing Date), contains any untrue statement of a material
fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the
time when made or delivered.
6.20 Equity Rights, etc. Except as set forth in Schedule
6.20 hereto, there are no outstanding Equity Rights with respect
to the Company and, except as set forth in Schedule 6.20 hereto,
there are no outstanding obligations of the Company or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any
shares of capital stock of the Company nor are there any
outstanding obligations of the Company or any of its Subsidiaries
to make payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair
market value or equity value of the Company or any of its
Subsidiaries.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required
Lenders:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, (i) a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such year and the related consolidated statements
of income, shareholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, and accompanied by the opinion of Ernst
& Young LLP or another nationally-recognized independent public
accounting firm ("Independent Auditor"), which report (x) shall
state that such consolidated financial statements present fairly
the consolidated financial position of the Company and its
Subsidiaries for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years and (y) shall not
be qualified or limited because of a restricted or limited
examination by the Independent Auditor of any material portion of
the Company's or any Subsidiary's records; and (ii) a copy of the
audited consolidating balance sheets of the Company and its
Subsidiaries as at the end of such year and consolidating
statements of income and cash flows for the Company and its
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and
accompanied by the opinion of an Independent Auditor which report
(x) shall state that such financial statements present fairly the
financial position of the Company and its Subsidiaries for the
periods indicated in conformity with GAAP applied on a basis
consistent with prior years and (y) shall not be qualified or
limited because of a restricted or limited examination by the
Independent Auditor of any material portion of the Company's or
any Subsidiary's records.
(b) as soon as available, but not later than 45 days
after the end of each fiscal quarter (except the last fiscal
quarter of each fiscal year), (i) consolidated balance sheets of
the Company and its Subsidiaries as of the end of such fiscal
quarter, together with consolidated and consolidating statements
of income and a consolidated statement of cash flows for such
fiscal quarter and for the period beginning with the first day of
such fiscal year and ending on the last day of such fiscal
quarter, certified by a Responsible Officer as fairly presenting,
in accordance with GAAP (subject to normal year-end audit
adjustments) the financial position and results of operation for
the periods covered thereby; and (ii) an operating report for
such fiscal quarter in form and detail reasonably satisfactory to
the Required Lenders; and
(c) as soon as available, but not later than 30 days
after the end of each month, (i) a consolidated balance sheet of
the Company and its Subsidiaries as of the end of such month and
the related consolidated statements of income and cash flows for
the period commencing on the first day and ending on the last day
of such month, certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to normal year-end
audit adjustments), the financial position and the results of
operations of the Company and its Subsidiaries; and (ii) an
operating report for such month in form and detail reasonably
satisfactory to the Required Lenders.
7.2 Certificates; Other Information. The Company shall
furnish to each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the
Independent Auditor stating that in making the examination
necessary therefor no knowledge was obtained of any Event of
Default or Unmatured Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), a
Compliance Certificate, each executed by a Responsible Officer;
(c) promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and copies of
all financial statements and regular, periodic or special reports
(including Forms 10-K, 10-Q and 8-K) that the Company or any
Subsidiary may make to, or file with, the SEC;
(d) promptly upon the request of the Administrative
Agent or any Lender, copies of all detailed financial and
management reports submitted to the Company by the Independent
Auditor in connection with each annual or interim audit made of
the books of the Company and its Subsidiaries;
(e) as soon as practicable and in any event not later
than 15 days prior to the commencement of each fiscal year, (i)
the business plan for the Company and its Subsidiaries for such
fiscal year prepared in a manner consistent with the projections
delivered by the Company to the Lenders prior to the Closing Date
or otherwise in a manner satisfactory to the Required Lenders;
and (ii) a complete and accurate summary of the property,
casualty and liability insurance carried by the Company and it
Subsidiaries, including the information described in Section
6.17; and
(f) promptly, such additional information regarding
the business, financial or corporate affairs of the Company or
any Subsidiary as the Administrative Agent, at the request of any
Lender, may from time to time request.
7.3 Notices. The Company shall promptly notify the
Administrative Agent and each Lender of:
(a) the occurrence of any Event of Default or
Unmatured Event of Default;
(b) any matter that has resulted or could reasonably
be expected to result in a Material Adverse Effect, including (i)
any breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension
between the Company or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the
Company or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than 10 days after such event, provided that the Company
shall notify the Administrative Agent and each Lender not less
than ten days before the occurrence of any event described in
clause (ii) below), and deliver to the Administrative Agent and
each Lender a copy of any notice with respect to such event that
is filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company or any ERISA Affiliate
with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f)
of ERISA;
(iii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iv) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the
Code by the Company or any ERISA Affiliate; or
(v) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability; or
(d) any cancellation of or material change in any
insurance maintained by the Company or any Subsidiary;
(e) any violation of any Environmental Law relating to
any Real Property or the Company's or any Subsidiary's operations
which violation might reasonably be expected to have a material
adverse effect on such Real Property or on the Company's or any
Subsidiary's operations;
(f) any potential or known Release, or threat of
Release, of any Hazardous Substance at, from or into any Real
Property which the Company or any Subsidiary reports in writing,
or is required to report in writing, to any Governmental
Authority and which is material in amount or nature or which
could materially affect the value of any Real Property;
(g) the Company's or any Subsidiary's receipt of any
notice (other than an Immaterial Notice) of violation of any
Environmental Law or of any Release or threatened Release of a
Hazardous Substance, including a notice or claim of liability or
potential responsibility from any third party (including any
official of any Governmental Authority) and including notice of
any formal inquiry, proceeding, demand, investigation or other
action with regard to (i) the Company's or any Subsidiary's or
any Person's operation of any Real Property, (ii) contamination
on, from or into any Real Property or (iii) investigation or
remediation of offsite locations at which the Company, any
Subsidiary or any of their respective predecessors are alleged to
have directly or indirectly Disposed of Hazardous Substances;
(h) the Company's or any Subsidiary's receipt of any
notice (other than an Immaterial Notice) of the incurrence by any
third party (including any Governmental Authority) of any expense
or loss in connection with the assessment, containment, removal
or remediation of any Hazardous Substances with respect to which
the Company or any Subsidiary may be liable or for which a Lien
may be imposed on any Real Property; or
(i) any Environmental Claim which has resulted or
could reasonably be expected to result in a Lien on any assets of
the Company or any Subsidiary;
(j) any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries.
Each notice under this Section shall be accompanied by
a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein, and stating what
action the Company or any affected Subsidiary proposes to take
with respect thereto and at what time. Each notice under
subsection 7.3(a) shall describe with particularity any and all
clauses or provisions of this Agreement or any other Loan
Document that have been breached or violated.
7.4 Preservation of Corporate Existence, Etc. The Company
shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
material governmental rights, privileges, qualifications,
permits, licenses and franchises necessary or desirable in the
normal conduct of its business except in connection with
transactions permitted by Section 8.3 and sales of assets
permitted by Section 8.2;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material Adverse
Effect.
7.5 Maintenance of Property. The Company shall, and
shall cause each Subsidiary to, maintain and preserve all its
property which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted.
7.6 Insurance. The Company shall, and shall cause
each Subsidiary to, maintain, with financially sound and
reputable independent insurers, insurance with respect to its
properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other
Persons; provided, that in any case (x) the Company shall (unless
the Administrative Agent shall have otherwise agreed) maintain
insurance coverage with respect to the respective risks and in
the respective amounts as set forth on Schedule 6.17 hereto (as
in effect on the date hereof) and (y) the Company shall maintain
Key-Man Life Insurance with respect to Richard DeYoung in an
amount not less than $2,000,000.
7.7 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
become due and payable, all their respective obligations and
liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its property;
unless, in each case, the same are being contested in good faith
by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary.
7.8 Compliance with Laws. The Company shall, and shall
cause each Subsidiary to, comply in all material respects with
all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair
Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The
Company shall, and shall cause each Subsidiary to, maintain
proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving
the assets and business of the Company and such Subsidiary. The
Company shall, and shall cause each Subsidiary to, permit
representatives and independent contractors of the Administrative
Agent or any Lender to visit and inspect any of their respective
properties, to examine their respective corporate, financial and
operating records, and to make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and
independent public accountants, all at the expense of the Company
and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance
notice to the Company; provided, however, that when an Event of
Default exists, the Administrative Agent or any Lender may do any
of the foregoing without advance notice.
7.11 Environmental Matters. (a) If any material Release
or Disposal of Hazardous Substances shall occur or shall have
occurred on any Real Property or any other assets of the Company
or any Subsidiary, the Company shall, or shall cause the
applicable Subsidiary to, cause the prompt containment and
removal of such Hazardous Substances and the remediation of such
Real Property or other assets as necessary to comply in all
material respects with all Environmental Laws and to preserve the
value of such Real Property or other assets. Without limiting
the generality of the foregoing, the Company shall, and shall
cause each Subsidiary to, comply in a reasonable and cost-
effective manner with any valid Federal or state judicial or
administrative order requiring the performance at any Real
Property of activities in response to the Release or threatened
Release of a Hazardous Substance except for the period of time
that the Company or such Subsidiary is diligently and in good
faith contesting such order.
(b) To the extent that the transportation of
"hazardous waste" as defined by RCRA is permitted by this
Agreement, the Company shall, and shall cause its Subsidiaries
to, dispose of such hazardous waste only at licensed disposal
facilities operating, to the best of the Company's or such
Subsidiary's knowledge after reasonable inquiry, in compliance
with Environmental Laws.
(c) The Company shall, and shall cause each Subsidiary
to, adequately accrue, in accordance with GAAP and as required by
applicable Environmental Laws, all closure and post closure
liabilities with respect to the landfill and transfer station
operations conducted by the Company and its Subsidiaries.
(d) Prior to the acquisition of any landfill or
similar property by the Company or any Subsidiary, the Company
shall deliver to the Administrative Agent and each Lender copies
of the environmental reports and other information relied upon by
the Company or such Subsidiary in conducting its environmental
due diligence with respect to such property.
(e) The Company shall deliver a certificate of a
Responsible Officer of the Company which certificate shall set
forth events or circumstances occurring, or discovered by the
Company, with respect to the information set forth in Schedule
6.12, after the Closing Date or, as the case may be, the delivery
of the most recent certificate pursuant to this subsection. Such
certificate shall accompany the financial statements delivered
pursuant to subsection 7.1(a) or, at any time at the request of
the Administrative Agent, within 30 days of such request.
7.11 Use of Proceeds. The Company shall use the proceeds
of the Loans as follows:
(i) the proceeds of the Term Loans in excess of the
outstanding amount of Term Loans under the Existing Credit
Agreement shall be used to refinance outstanding Expansion
Loans under the Existing Credit Agreement, and
(ii) the proceeds of Expansion Loans made after the
Closing Date shall be used to finance Eligible Acquisitions
(provided that (i) up to $20,000,000 in aggregate principal
amount of Expansion Loans at any one time outstanding may be
used for the Company's working capital purposes and (ii) the
aggregate face amount of Letters of Credit plus the
aggregate principal amount of Expansion Loans the proceeds
of which are for working capital purposes may not exceed
$20,000,000) not in contravention of any Requirement of Law
or of any Loan Document.
7.13 Key-Man Life Policy. Within 60 days after the
appointment or election of any successor to Richard DeYoung (or
any successor), the Company shall deliver to the Administrative
Agent a Key-Man Insurance Policy in the amount set forth in
Section 7.6(b) (naming the Administrative Agent as loss payee and
additional insured) covering each such successor.
7.14 Rate Protection. The Company shall (i) on or prior to
the Closing Date and for at least 18 months thereafter, maintain
in full force and effect one or more Swap Contracts with one or
more of the Lenders (and/or with a bank or other financial
institution having capital, surplus and undivided profits of at
least $500,000,000), that effectively enables the Company (in a
manner satisfactory to the Administrative Agent), as at any date,
to protect itself against three-month London interbank offered
rates exceeding a per annum percentage acceptable to the
Administrative Agent as to a notional principal amount at least
equal to $35,000,000 and (ii) prior to the end of such 18-month
period, furnish to the Lenders its written strategy for
mitigating the risk of interest rate fluctuations for subsequent
periods (but with no obligation on the part of the Company to
enter into any Swap Contracts).
7.15 Additional Collateral. The Company shall, and shall
cause each of its Subsidiaries to cause the Administrative Agent
and the Lenders to have at all times a first priority perfected
security interest in all of the assets of the Company and such
Subsidiaries (except for motor vehicles and subject to the Liens
permitted to exist pursuant to Section 8.1). The Company shall,
and shall cause each of its Subsidiaries to, cause the
Administrative Agent and the Lenders to have at all times a first
priority perfected security interest in all of the issued and
outstanding shares of capital stock of the Subsidiaries of the
Company that are owned by either the Company or any Subsidiary of
the Company. Without limiting the generality of the foregoing,
the Company shall, and shall cause each of its Subsidiaries to
deliver to the Administrative Agent all of its respective assets,
for which possession by the Administrative Agent is required for
perfection of such security interest, and shall, and shall cause
each such Subsidiary to, execute, deliver and/or file (as
applicable) or cause to be executed, delivered and/or filed (as
applicable), the pledge agreement(s), the security agreement(s),
Uniform Commercial Code (Form UCC-1) financing statements,
Uniform Commercial Code (Form UCC-3) termination statements, and
other documentation necessary to grant and perfect such security
interest, in each case in form and substance satisfactory to the
Administrative Agent. The Company shall deliver to the
Administrative Agent all shares of capital stock of the
Subsidiaries of the Company, whether held of record by the
Company or any Subsidiary of the Company. Without in any way
limiting the provisions of Section 5.2(e), the Company shall, no
less frequently than once a fiscal quarter, provide to the
Administrative Agent an environmental survey and assessment with
respect to all material real property acquired or leased by the
Company or any of its Subsidiaries during such fiscal quarter,
prepared by a firm of licensed engineers (familiar with the
identification of toxic and hazardous substances) or, with the
consent of the Administrative Agent, the Company's environmental
compliance officer, in each case in form and substance
satisfactory to the Administrative Agent.
7.16 Future Subsidiaries. Upon the acquisition or creation
by the Company (directly or through any of its Subsidiaries) of
any new Subsidiary:
(a) the Company shall cause each newly created or
acquired Subsidiary to execute and deliver to the
Administrative Agent, with counterparts for each Lender, a
Guaranty of all Obligations, a Security Agreement, and a
Mortgage on such Subsidiary's real properties, in each case
to the fullest extent permitted by applicable law;
(b) the Company shall (or, if such newly created or
acquired Subsidiary is to be a Subsidiary of another
Subsidiary of the Company, the Company shall cause such
Subsidiary ("Subsidiary X") to), execute and deliver a
Subsidiary Pledge Agreement ((if it has not already done so)
and shall cause Subsidiary X to) pledge pursuant to the
Company Pledge Agreement or the applicable Subsidiary Pledge
Agreement (as the case may be), and deliver to the
Administrative Agent, for its benefit and that of the
Lenders, all of the outstanding shares of such capital stock
of or other equity interests in, such newly created or
acquired Subsidiary owned or held by the Company or
Subsidiary X, as the case may be, along with undated stock
powers for such certificates, executed in blank (or, if any
such shares of capital stock are uncertificated,
confirmation and evidence satisfactory to the Administrative
Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the
Administrative Agent, for its benefit and that of the
Lenders, in accordance with Section 8-313 and Section 8-321
of the Uniform Commercial Code, as in effect in the State of
New York, or any similar law which may be applicable); and
(c) acknowledgment agreements, amendments to the
applicable Subsidiary Pledge Agreement or such other
agreement or instrument as the Administrative Agent shall
reasonably request to reflect the pledge of such stock or
equity interest pursuant to the terms of such Subsidiary
Pledge Agreement;
together, in each case, with such opinions of legal counsel, in
form and substance satisfactory to the Administrative Agent and
the Lenders, and Uniform Commercial Code financing statements or
similar instruments as the Administrative Agent may reasonably
require.
7.17 Further Assurances. The Company shall, and shall
cause each Subsidiary to, take such actions as the Administrative
Agent may reasonably request from time to time (including the
execution and delivery of guaranties, security agreements, pledge
agreements, mortgages, stock powers, financing statements and
other documents, the filing or recording of any of the foregoing,
and the delivery of stock certificates and other collateral with
respect to which perfection is obtained by possession) to ensure
that (a) the obligations of the Company hereunder and under the
other Loan Documents are secured by substantially all assets of
the Company and guaranteed by all Subsidiaries (including,
promptly upon the acquisition or creation thereof, any Subsidiary
created or acquired after the date hereof) and (b) the
obligations of each Subsidiary under any guaranty issued pursuant
to clause (a) are secured by substantially all of the assets of
such Subsidiary.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
8.1 Limitation on Liens. The Company shall not, and shall
not permit any Subsidiary to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with
respect to any part of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or
any Subsidiary on the Closing Date and set forth in Schedule 8.1
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 7.7, provided that no notice of lien has
been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good
faith and by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens on property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations (other than obligations
of the type permitted in clause (k) of this Section 8.1) on
surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the
ordinary course of business, provided that all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse
Effect;
(g) Liens consisting of judgment or judicial
attachment liens, provided that the enforcement of such Liens is
effectively stayed and all such liens in the aggregate at any
time outstanding for the Company and its Subsidiaries do not
exceed $500,000;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct
of the businesses of the Company and its Subsidiaries;
(i) purchase money security interests on any property
acquired by the Company or any Subsidiary in the ordinary course
of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring
such property; provided that (a) any such Lien attaches to such
property concurrently with or within 20 days after the
acquisition thereof, (b) such Lien attaches solely to the
property so acquired in such transaction, (c) the principal
amount of the Indebtedness secured thereby shall not exceed 100%
of the cost of such property, and (d) the principal amount of the
Indebtedness secured by all such purchase money security
interests plus the aggregate amount of all Indebtedness arising
under capital leases (other than obligations in respect of
capital leases assumed in connection with an Eligible
Acquisition) shall not at any time exceed $5,500,000;
(j) Liens securing obligations in respect of capital
leases on assets subject to such leases, provided that the
aggregate amount of all Indebtedness arising under such capital
leases (other than obligations in respect of capital leases
assumed in connection with an Eligible Acquisition) plus the
aggregate amount of all Indebtedness secured by purchase money
security interests shall not at any time exceed $5,500,000;
(k) cash collateral pledged to secure obligations of
the Company or any Subsidiary in respect of performance, closure
and post-closure liabilities relating to landfills or similar
operations of the Company and such Subsidiary (including amounts
deposited in trust accounts or escrow accounts for such purpose)
or obligations of the Company or any Subsidiary in respect of
bonds related directly to such liabilities, provided that (i) the
aggregate amount of all cash collateral pledged in respect of
such obligations shall not at any time exceed $4,350,000 at any
time during 1997, $5,450,000 at any time during 1998 and
$6,550,000 at any time thereafter; and (ii) any liabilities of
the Company and its Subsidiaries in connection with any such
bonds (other than in respect of such cash collateral) shall be
subordinated to the obligations of the Company hereunder in a
manner approved in writing by the Required Lenders; and
(l) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-
off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations
promulgated by the FRB, (ii) such deposit account is not intended
by the Company or any Subsidiary to provide collateral to the
depository institution and (iii) the aggregate amount of all such
deposits with all depository institutions which are not Lenders
shall not at any time exceed $500,000.
8.2 Disposition of Assets. The Company shall not, and
shall not permit any Subsidiary to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether
in one or a series of transactions) any property (including
accounts and notes receivable, with or without recourse) or enter
into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or
surplus equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price of
similar replacement equipment, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such
replacement equipment; and
(c) dispositions not otherwise permitted hereunder
which are made for fair market value; provided that (i)
at the time of any disposition, no Event of Default or
Unmatured Event of Default shall exist or will result
from such disposition, (ii) the aggregate sales price
from such disposition shall be paid in cash, and (iii)
the aggregate value of all assets so sold by the
Company and its Subsidiaries in any fiscal year shall
not exceed $1,000,000.
8.3 Consolidations and Mergers. The Company shall not, and
shall not permit any Subsidiary to, merge or consolidate with or
into any other Person, except that any Subsidiary may merge with
the Company, provided that the Company shall be the continuing or
surviving corporation, or with any one or more Subsidiaries,
provided that if any transaction shall be between a Subsidiary
and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall
be the continuing or surviving corporation. Nothing contained
herein shall prohibit an Eligible Acquisition in the form of a
merger with a Subsidiary of the Company, provided that the
Company shall cause such Subsidiary and the surviving entity of
such a merger to comply with the provisions of Section 7.16.
8.4 Loans and Investments. The Company shall not, and
shall not permit any Subsidiary to, purchase or acquire, or make
any commitment therefor, any capital stock, equity interest, or
other obligations or securities of, or any interest in, any other
Person, or make or commit to make any acquisition, or make or
commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in, any other Person,
except for:
(a) Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business;
(c) loans and advances to employees in the ordinary
course of business (such as travel advances) in an aggregate
amount not at any time exceeding $250,000;
(d) investments in money market mutual funds sponsored
by any Lender;
(e) investments by the Company or any Subsidiary in,
or loans and advances by the Company or any Subsidiary to, any
Person which is a Subsidiary of the Company or such Subsidiary
(prior to, in the case of an investment, the making of such
investment);
(f) Eligible Acquisitions, provided that either (a)
such Eligible Acquisition is financed in whole or in part with
Expansion Loans in accordance with Section 5.2 or (b) prior to
making such Eligible Acquisition, the Company shall have complied
with the information requirements of Section 5.2 (as if such
Eligible Acquisition were being funded with the proceeds of
Expansion Loans) and Section 7.16;
(g) loans and advances by any Subsidiary to the
Company; and
(h) other investments (including investments in Joint
Ventures) in an aggregate amount not exceeding $1,000,000 (or
such larger amount as the Majority Lenders may approve) provided
that, prior to making any such investment, the Company shall have
complied with the information requirements of Section 5.2 (as if
such investment were being funded with the proceeds of Expansion
Loans).
8.5 Limitation on Indebtedness. The Company shall not, and
shall not permit any Subsidiary to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(c) Indebtedness existing on the Closing Date and set
forth in Schedule 8.5;
(d) Indebtedness secured by Liens permitted by
subsections 8.1(i) and (j) (which shall include Liens incurred
pursuant to capital leases permitted pursuant to subsection
8.9(b));
(e) Subordinated Indebtedness of the Company in an
aggregate principal amount outstanding not to exceed $ 2,000,000
at any time; and
(f) additional Indebtedness of the Company consisting
of the deferred purchase price payable by the Company in respect
of Eligible Acquisitions, so long as:
(x) the aggregate principal amount of such
Indebtedness does not exceed $2,000,000 at any one time
outstanding, and
(y) the maturity of such Indebtedness does not
exceed five years.
8.6 Transactions with Affiliates. The Company shall not,
and shall not permit any Subsidiary to, enter into any
transaction with any Affiliate of the Company (other than a
Subsidiary), except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in
a comparable arm's-length transaction with a Person not an
Affiliate of the Company. Without limiting the foregoing, the
Company shall not, and shall not permit any Subsidiary to, pay
any management or similar fees to any Affiliate.
8.7 Use of Proceeds. The Company shall not, and shall not
permit any Subsidiary to, use any portion of the Loan proceeds or
any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of the Company or others incurred to purchase or
carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14
of the Securities Exchange Act of 1934.
8.8 Contingent Obligations. The Company shall not, and
shall not permit any Subsidiary to, create, incur, assume or
suffer to exist any Contingent Obligation except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Swap Contracts entered into in the ordinary course
of business as bona fide hedging transactions;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in
Schedule 8.8;
(d) Contingent Obligations arising under the Loan
Documents;
(e) Contingent Obligations in respect of surety bonds
to the extent permitted by Section 8.1(k);
(f) Contingent Obligations of the Company with respect
to direct obligations of its Subsidiaries or Contingent
Obligations of Subsidiaries with respect to direct obligations of
the Company; and
(g) Contingent Obligations consisting of contingent
additional purchase price obligations of the Company or any of
its Subsidiaries in respect of any Eligible Acquisition, so long
as:
(x) the aggregate amount of such Indebtedness
does not exceed $10,000,000 at any one time
outstanding,
(y) the aggregate amount of such Indebtedness
incurred in connection with any single Eligible
Acquisition does not exceed $2,500,000, and
(z) the payment of such deferred purchase price
is subject to the satisfaction of certain conditions
(such as the financial performance of the business
acquired in such Eligible Acquisition or its obtaining
certain landfill permits).
8.9 Lease Obligations. The Company shall not, and shall
not permit any Subsidiary to, create or suffer to exist any
obligations for the payment of rent for any property under lease
except for:
(a) operating leases entered into by the Company or
any Subsidiary in the ordinary course of business; and
(b) capital leases to the extent permitted by Section
8.1(j).
8.10 Minimum Interest Coverage Ratio. The Company shall
not permit the ratio of (A) EBITDA for the Computation Periods
ending on the last day of any fiscal quarter occurring during any
of the periods shown below to (B) Interest Expense for such
Computation Period to be less than the applicable ratio shown
below:
Period Ratio
From June 30, 1997 to
and including June 29, 1998 3.00 to 1
From June 30, 1998 to
and including June 29, 1999 3.25 to 1
From June 30, 1999 to
and including June 29, 2000 3.50 to 1
From June 30, 2000 to
and including June 30, 2003 3.75 to 1
8.11 Total Indebtedness to Capitalization Ratio. The
Company shall not at any date, permit the ratio of (A) Total
Indebtedness at such date to (B) the sum of Total Indebtedness,
plus (i) the par amounts, determined on a consolidated basis, in
the capital stock account of the Company or its Subsidiaries, on
a consolidated basis, determined in accordance with GAAP (net of
the value of treasury stock in such capital stock account), plus
(ii) the additional paid-in capital and, plus (or minus, in the
case of a deficit) (iii) cumulative retained earnings of the
Company and its Subsidiaries from and after June 30, 1996, on a
consolidated basis, determined in accordance with GAAP, to be
greater than 0.65 to 1.
8.12 Minimum Fixed Charge Coverage Ratio. The Company
shall not permit the ratio of (A) Operating Cash Flow for the
Computation Periods ending on the last day of any fiscal quarter
occurring during any of the periods shown below minus, with
respect to the fourth fiscal quarter and without duplication,
cash payments made by the Company during such fiscal year in
respect of costs incurred in connection with the closing of
landfills, net of any amounts returned to the Company during such
fiscal year in respect of such closings to (B) Interest Expense
plus payments of principal in respect of Indebtedness for such
Computation Period to be less than the applicable ratio shown
below:
Period Ratio
From January 1, 1997 to
and including December 30, 1999 1.10 to 1
From December 31, 1999
and thereafter 1.25 to 1
"Operating Cash Flow" shall mean, with respect to any period, the
excess (if any) of (i) EBITDA for such period, over (ii) the sum
of (x) the aggregate amount of capital expenditures actually
expended during such period, less (y) the CapEx Allocation for
such period, plus (z) the aggregate amount of taxes actually paid
by the Company or any of its Subsidiaries during such period.
"CapEx Allocation" shall mean, with respect to: (1) the period
ending June 30, 1997: $1,250,000; (2) the period ending September
30, 1997: $250,000; and (3) any period ending on or after
December 31, 1997, $0.00.
8.13 Maximum Capital Expenditures. The Company shall not
permit the aggregate amount of all capital expenditures made by
the Company and its Subsidiaries in any fiscal year to be greater
than $16,450,000 during each fiscal year, plus, in each such
fiscal year, capital expenditures with respect to each Eligible
Acquisition financed with the proceeds of the Expansion Loans and
set forth in the related certificate delivered pursuant to
subsection 5.2(c)(ii)(D) as capital expenditures to be made in
such fiscal year. Any portion of the capital expenditures
permitted to be made pursuant to the foregoing sentence but not
expended in any fiscal year may be carried forward to the
immediately succeeding fiscal year.
8.14 Total Indebtedness to EBITDA Ratio. The Company shall
not permit the ratio of (A) Total Indebtedness as of the last day
of any fiscal quarter occurring during any of the periods shown
below to (B) EBITDA for the Computation Period ending on the last
day of such fiscal quarter to be greater than the applicable
ratio shown below:
Period Ratio
From June 30, 1997 to
and including June 29, 1998 3.75 to 1
From June 30, 1998 to
and including June 29, 1999 3.50 to 1
From June 30, 1999 to
and including June 29, 2000 3.25 to 1
From June 30, 2000 to
and thereafter 3.00 to 1
8.15 Restricted Payments. The Company shall not, and shall
not permit any Subsidiary to, declare or make any dividend
payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any
class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or
hereafter outstanding (all of the foregoing being collectively
called "Restricted Payments"), except that (i) any Subsidiary may
declare and pay dividends to the Company and (ii) the Company
may:
(a) declare and make dividend payments or other
distributions payable solely in its common stock; and
(b) purchase, redeem or otherwise acquire shares of
its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock.
8.16 Landfill Development. The Company shall not permit
the aggregate amount expended by the Company and its Subsidiaries
in connection with all greenfield landfill development projects
(excluding any landfill development project which is contiguous
to, or an expansion of, an existing landfill site) for which all
applicable permits to construct or improve such projects have not
been obtained to exceed $500,000 in any fiscal year or $1,000,000
in the aggregate during the term of this Agreement.
8.17 ERISA. The Company shall not, and shall not permit
any of its ERISA Affiliates to: (a) engage in a prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably
be expected to result in liability of the Company in an aggregate
amount in excess of $50,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
8.18 Change in Business. The Company shall not, and shall
not permit any Subsidiary to, engage in any line of business
other than the businesses engaged in by the Company and its
Subsidiaries as of the date hereof and businesses reasonably
related thereto (but excluding the transportation, storage or
other handling of Hazardous Substances except where permitted in
connection with and incidental to the normal transportation,
storage and other handling of non-hazardous waste).
8.19 Accounting Changes. The Company shall not, and shall
not permit any Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required
by GAAP, or change the fiscal year of the Company or of any
Subsidiary.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay (i) when
and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation, or (ii) within two Business Days
after the same becomes due, any interest, fee or other amount
payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made
herein or in any other Loan Document, or which is contained in
any certificate, document or financial or other statement by the
Company, any Subsidiary or any Responsible Officer furnished at
any time under this Agreement or any other Loan Document, is
incorrect in any material respect on or as of the date made or
deemed made.
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
subsection 7.3(a) or Sections 8.1 through 8.5, 8.7, 8.8, 8.16,
8.17 or 8.18.
(d) Other Defaults. The Company or any Subsidiary
party thereto fails to perform or observe any other term or
covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 15
days after the earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or
(ii) the date upon which written notice thereof is given to the
Company by the Administrative Agent or any Lender.
(e) Cross-Default. The Company or any Subsidiary (i)
fails to make any payment in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount
(including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $1,000,000 when due
(whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (ii) fails to perform or
observe any other condition or covenant, or any other event shall
occur or condition shall exist, under any agreement or instrument
relating to any Indebtedness or Contingent Obligation having an
aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of
more than $1,000,000, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, such Indebtedness to be
declared to be due and payable prior to its stated maturity, or
such Contingent Obligation to become payable, or cash collateral
in respect thereof to be demanded.
(f) Insolvency; Voluntary Proceedings. The Company or
any Subsidiary (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its
debts as they become due; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Subsidiary, or any writ, judgment, warrant of attachment,
warrant of execution or similar process is issued or levied
against a substantial part of the Company's or any Subsidiary's
properties, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, warrant
of execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or levy;
(ii) the Company or any Subsidiary admits the material
allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-
U.S. law) is ordered in any Insolvency Proceeding; or (iii) the
Company or any Subsidiary acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator, mortgagee
in possession (or agent therefor) or other similar Person for
itself or a substantial portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability
of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess
of $500,000; (ii) a contribution failure shall have occurred with
respect to a Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA; (iii) the aggregate amount of Unfunded
Pension Liability among all Pension Plans at any time exceeds
$500,000; or (iv) the Company or any ERISA Affiliate shall fail
to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $50,000.
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration
awards is entered against the Company or any Subsidiary involving
in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does
not dispute coverage), as to any single or related series of
transactions, incidents or conditions, of $500,000 or more, and
the same shall remain unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof.
(j) Non-Monetary Judgments. Any non-monetary
judgment, order or decree is entered against the Company or any
Subsidiary which has or would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
(k) Change of Control or Management. (i) 90 days
shall have elapsed after Mr. Richard de Young shall cease to be
actively involved in the day-to-day management of the Company as
its president, and during such 90-day period another individual,
acceptable to the Required Lenders, shall not have been appointed
as the Company's president, or (ii) any Person that (or any two
or more Persons that are deemed to be a "person" under Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934) is
not an Affiliate of Charterhouse Group International, Inc. shall
directly or indirectly own in excess of 20% of the voting stock
of the Company.
(l) Guarantor Defaults. Any Guarantor fails in any
material respect to perform or observe any term, covenant or
agreement in the Guaranty; or the Guaranty is for any reason
partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force
and effect; or any Guarantor, or any other Person by, through or
on behalf of any Guarantor, contests in any manner the validity
or enforceability of the Guaranty or denies that such Guarantor
has any further liability or obligation thereunder.
(m) Security Agreement, etc. The Security Agreement
shall cease to be in full force and effect; or the Company, any
Subsidiary or any Person by, through or on behalf of the Company
or any Subsidiary, shall contest the validity or enforceability
of the Security Agreement.
(n) Pledge Agreements. Any Pledge Agreement shall
cease to be in full force and effect; or the Company or the
applicable Subsidiary, or any Person by, through or on behalf of
the Company or the applicable Subsidiary, shall contest the
validity or enforceability of any Pledge Agreement.
(o) Material Environmental Events. There shall occur
or exist
(a) one or more circumstances or events of a
type or types referred to in Section 6.12 or 7.11 that
is not disclosed in Schedule 6.12, in the form attached
hereto on the Closing Date, and/or
(b) adverse developments with respect to one or
more of the matters disclosed in Schedule 6.12, in the
form attached hereto on the Closing Date
that, singly or in the aggregate, has resulted or could
reasonably be expected to result in expenditures by the Company
and its Subsidiaries (on account of fines, investigations,
removal or remediation) in excess of $1,000,000 in any fiscal
year or $3,000,000 during the period from the Closing Date to the
scheduled final maturity of the Term Loans or that otherwise has
resulted or could reasonably be expected to result in a Material
Adverse Effect.
9.2 Remedies. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders do any or all of the following:
(a) declare the commitment of each Lender to make
Loans and any obligation of the Issuing Lender to Issue Letters
of Credit to be terminated, whereupon such commitments and
obligations shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for
drawing under any outstanding Letter of Credit (whether or not
any beneficiary shall have presented, or shall be entitled at
such time to present, the drafts or other documents required to
draw under such Letter of Credit) to be immediately due and
payable, and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the
Loan Documents or applicable law;
provided, however, that upon the occurrence of any Event of
Default specified in subsection 9.1(f) or (g), the obligation of
each Lender to make Loans and the obligation of the Issuing
Lender to Issue Letters of Credit shall automatically terminate
and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Administrative
Agent, the Issuing Lender or any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. (a) Each Lender
hereby irrevocably (subject to Section 10.9) appoints, designates
and authorizes the Administrative Agent to take such action on
its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement
or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
(b) The Issuing Lender shall act on behalf of the
Lenders with respect to the Letters of Credit and the documents
associated therewith until such time and except for so long as
the Administrative Agent may agree at the request of the Required
Lenders to act for the Issuing Lender with respect thereto;
provided, however, that the Issuing Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent
in this Article X with respect to any acts taken or omissions
suffered by the Issuing Lender in connection with Letters of
Credit Issued by it or proposed to be Issued by it and the
applications and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term "Administrative
Agent", as used in this Article X, included the Issuing Lender
with respect to such acts or omissions, and (ii) as additionally
provided in this Agreement with respect to the Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the
Agent-Related Persons shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any
of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of
the Company, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the
Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or
Affiliates.
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders which comprise the
Required Lenders requesting such action to be taken against any
and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the
Lenders.
10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default, except with
respect to defaults in the payment of principal, interest and
fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall
have received written notice from a Lender or the Company
referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a
"notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Event of
Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with Article IX; provided,
however, that unless and until the Administrative Agent has
received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none
of the Agent-Related Persons has made any representation or
warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any
Lender. Each Lender represents to the Administrative Agent that
it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company
hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except for
notices, reports and other documents expressly herein required to
be furnished to the Lenders by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company
which may come into the possession of any of the Agent-Related
Persons.
10.7 Indemnification of Administrative Agent. Whether or
not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand the Agent-Related Persons (to
the extent not reimbursed by or on behalf of the Company and
without limiting the obligation of the Company to do so), pro
rata in accordance with the aggregate amount of outstanding Loans
and L/C Obligations, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of the
Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent
upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by the
Administrative Agent (except to the extent incurred as a result
of the Administrative Agent's gross negligence or willful
misconduct) in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on
behalf of the Company. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
10.8 Administrative Agent in Individual Capacity. ING and
its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though ING were not the
Administrative Agent hereunder and without notice to or consent
of the Lenders. The Lenders acknowledge that, pursuant to such
activities, ING or its Affiliates may receive information
regarding the Company or its Affiliates (including information
that may be subject to confidentiality obligations in favor of
the Company or such Subsidiary) and acknowledge that the
Administrative Agent shall be under no obligation to provide such
information to them. With respect to their respective Loans (if
any), ING and any Affiliate thereof shall have the same rights
and powers under this Agreement as any other Lender and may
exercise the same as though ING were not the Administrative
Agent.
10.9 Successor Administrative Agent. The Administrative
Agent may, and at the request of the Required Lenders shall,
resign as Administrative Agent upon 30 days' notice to the
Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders. If no successor agent
is appointed prior to the effective date of the resignation of
the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Company, a successor
agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Article X and Sections 11.4 and 11.5 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. If no
successor agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, ING may not be removed as
the Administrative Agent at the request of the Required Lenders
unless ING or any Affiliate thereof acting as the Issuing Lender
hereunder shall also simultaneously be replaced as Issuing Lender
pursuant to documentation in form and substance reasonably
satisfactory to ING and (and, if applicable, such Affiliate).
10.10 Withholding Tax. (a) If any Lender is a "foreign
corporation", "foreign partnership" or "foreign trust" within the
meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Section 1441 or 1442 of
the Code, such Lender shall deliver to the Administrative Agent
and the Company:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, properly completed IRS Forms 1001 and W-8 (or any
successor forms) before the payment of any interest in the
first calendar year and before the payment of any interest
in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Lender, two properly completed and
executed copies of IRS Form 4224 (or successor form) before
the payment of any interest is due in the first taxable year
of such Lender, and on or before the date that such form
expires or becomes obsolete and after the occurrence of any
event requiring a change in such form, and IRS Form W-9 (or
successor form);
(iii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax
under Section 881(c) of the Code, two properly completed and
executed copies of IRS Form W-8 (or successor form) together
with a duly authorized and executed certificate of an
officer of such Lender certifying that the Lender is not (i)
a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (ii) a "10-percent shareholder" of the Company within
the meaning of Section 871(h)(3)(B) of the Code or (iii) a
controlled foreign corporation with respect to which the
Company is a "related person" within the meaning of Section
864(d)(4) of the Code; and
(iv) such other form or forms as may be required under
the Code or other laws of the United States as a condition
to exemption from, or reduction of, United States
withholding tax.
Each such Lender agrees to notify the Administrative Agent and
the Company promptly of any change in circumstances which would
modify or render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001 and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to
notify the Administrative Agent and the Company of the percentage
amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such
percentage amount, the Administrative Agent and the Company will
treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United
States withholding tax by filing IRS Form 4224 with the
Administrative Agent and the Company sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to
undertake sole responsibility for complying with the withholding
tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender claims exemption from United States
withholding tax under Section 881(c) of the Code by providing IRS
Form W-8 and the officer's certification described in (a)(iii)
above, and such Lender sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the
Company to such Lender, such Lender agrees to notify the
Administrative Agent and the Company of the percentage amount in
which it is no longer the beneficial owner of Obligations of the
Company to such Lender. To the extent of such percentage amount,
the Administrative Agent and the Company will treat such Lender's
IRS Form W-8 and officer's certification as no longer applicable.
(e) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent or the
Company may withhold from any interest payment to such Lender an
amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation
required by subsection (a) of this Section are not delivered to
the Administrative Agent and the Company, then the Administrative
Agent or the Company may withhold from any interest payment to
such Lender not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.
(f) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a claim that the
Administrative Agent or the Company did not properly withhold tax
from amounts paid to or for the account of any Lender (because
the appropriate form was not delivered or was not properly
executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Lender shall indemnify the
Administrative Agent and the Company fully for all amounts paid,
directly or indirectly, by the Administrative Agent or the
Company as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent or the Company under
this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the
resignation or replacement of the Administrative Agent.
10.11 Collateral Matters.
(a) The Administrative Agent is authorized on behalf
of all the Lenders, without the necessity of any notice to or
further consent from any Lender, from time to time to take any
action with respect to any collateral or the Loan Documents which
may be necessary to perfect and maintain perfected the security
interest in and Liens upon the collateral granted pursuant to the
Loan Documents.
(b) The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to
release any security interest or Lien granted to or held by the
Administrative Agent upon any collateral (i) upon termination of
the Commitments and payment in full of all Loans and all other
obligations known to the Administrative Agent and payable under
this Agreement and the other Loan Documents; (ii) constituting
property sold or to be sold or disposed of as part of or in
connection with any disposition permitted hereunder; (iii)
constituting property in which the Company or any Subsidiary
owned no interest at the time such security interest or Lien was
granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has
expired or been terminated in a transaction permitted under this
Agreement or is about to expire and which has not been, and is
not intended by the Company or such Subsidiary to be, renewed or
extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness evidenced thereby
has been paid in full; or (vi) if approved, authorized or
ratified in writing by all the Lenders. Upon request by the
Administrative Agent at any time, the Lenders will confirm in
writing the Administrative Agent's authority to release
particular types or items of collateral pursuant to this
subsection 10.11(b).
(c) To the extent that the Agent shall be entitled,
in accordance with the Loan Documents, to apply the proceeds of
any collateral for the Obligations to the payment thereof, it
shall do so ratably in accordance with the Obligations then due
and owing.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments, Waivers and Consents to Expansion Loans.
Except as expressly provided in this Agreement, no amendment or
waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by the
Company or any Guarantor therefrom, shall be effective unless the
same shall be in writing and signed by the Required Lenders (or
by the Administrative Agent at the written request of the
Required Lenders) and the Company and acknowledged by the
Administrative Agent, and then any such waiver or consent shall
be effective only in the specific instance and for the specific
purpose for which given; provided that no such waiver, amendment
or consent shall, unless in writing and signed by all Lenders and
the Company and acknowledged by the Administrative Agent, do any
of the following:
(a) increase or extend the Commitment of any Lender
(or reinstate any Commitment terminated pursuant to Section 9.2);
(b) postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment (or mandatory
prepayment) of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan
Document; or change the manner in which mandatory or voluntary
prepayments are allocated among Lenders and among Classes of
Loans;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan or (subject to clause (iii) below)
reduce any fees or other amounts payable hereunder or under any
other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required
for the Lenders or any of them to take any action hereunder;
(e) release all or substantially all of the collateral
granted under the Loan Documents or release any Guarantor from
its Guarantee; or
(f) amend this Section, or Section 2.17, or any
provision herein providing for consent or other action by all
Lenders;
and provided, further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Lender in
addition to the Required Lenders or all Lenders, as the case may
be, affect the rights or duties of the Issuing Lender under this
Agreement or any L/C-Related Document, (ii) no amendment, waiver
or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan
Document, and (iii) the fees payable to the Administrative Agent
pursuant to subsection 2.13(a) may be changed pursuant to a
writing executed by the Company and the Administrative Agent.
If, pursuant to Section 5.2(b), consent of the Majority
Lenders is a condition precedent to an Expansion Loan, each
Lender agrees to give prompt consideration with respect to its
decision to grant or withhold such consent (and which decision
shall not be unreasonably delayed).
11.2 Notices. (a) All notices, requests and other
communications hereunder shall be in writing (including, unless
the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by the Company
by facsimile (i) shall be immediately confirmed by a telephone
call to the recipient at the number specified on Schedule 11.2,
and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered to the address
or facsimile number specified for notices on Schedule 11.2; or,
as directed to the Company or the Administrative Agent, to such
other address as shall be designated by such party in a written
notice to the other parties, and as directed to any other party,
at such other address as shall be designated by such party in a
written notice to the Company and the Administrative Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail; except
that notices to the Administrative Agent pursuant to Article II,
III or X shall not be effective until actually received by the
Administrative Agent, and notices pursuant to Article III to the
Issuing Lender shall not be effective until actually received by
the Issuing Lender at the address specified for the "Issuing
Lender" on Schedule 11.2.
(c) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the
Company. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be
a Person authorized by the Company to give such notice and the
Administrative Agent and the Lenders shall not have any liability
to the Company or other Person on account of any action taken or
not taken by the Administrative Agent or the Lenders in reliance
upon such telephonic or facsimile notice. The obligation of the
Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt
by the Administrative Agent and the Lenders of a confirmation
which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in the
telephonic or facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated
hereby are consummated, pay or reimburse ING within five Business
Days after demand (subject to subsection 5.1(e)) for all costs
and expenses incurred by ING in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document
and any other document prepared in connection herewith or
therewith, and the consummation of the transactions contemplated
hereby and thereby, including Attorney Costs incurred by ING with
respect thereto; and
(b) pay or reimburse the Administrative Agent and each
Lender within five Business Days after demand (subject to
subsection 5.1(e)) for all costs and expenses (including Attorney
Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any right or remedy
under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the
Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Company
shall indemnify and hold the Agent-Related Persons and each
Lender and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each an
"Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which
may at any time (including at any time following repayment of the
Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative
Agent or replacement of any Lender) be imposed on, incurred by or
asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby or
thereby, or any action taken or omitted by any such Person under
or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding, any proceeding relating to
Environmental Laws or appellate proceeding) related to or arising
out of this Agreement or the Loans or Letters of Credit or the
use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that the Company shall have
no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting solely from the gross
negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other
Obligations.
11.6 Payments Set Aside. To the extent that the Company
makes a payment to the Administrative Agent or the Lenders, or
the Administrative Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any
part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative
Agent or such Lender in its discretion) to be repaid to a trustee
or receiver, or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had
not occurred and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its pro rata share of any amount
so recovered from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, etc. Any Lender may,
with the written consent of the Administrative Agent (with
respect to all Loans, which consent of the Administrative Agent
shall not be unreasonably withheld or delayed) and the Issuing
Lender (with respect to Expansion Loans, which consent of the
Issuing Lender shall not be unreasonably withheld or delayed), at
any time assign and delegate to one or more Persons (each an
"Assignee") all, or any part of the Loans, the Commitment, the
L/C Obligations and the other rights and obligations of such
Lender hereunder, in a minimum amount of $5,000,000 (or, if less,
all of such Lender's remaining rights and obligations hereunder);
provided, however, that the Company, the Administrative Agent and
the Issuing Lender may continue to deal solely and directly with
such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Company and
the Administrative Agent by such Lender and the Assignee;
(ii) such Lender and the Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance
in the form of Exhibit H ("Assignment and Acceptance") together
with any Note subject to such assignment and (iii) the assignor
Lender or the Assignee has paid to the Administrative Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Administrative
Agent notifies the assignor Lender that it has provided its
consent, and received the consent of the Issuing Lender, with
respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations
of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loan, the
Commitment of such Lender and the other interests of such Lender
(the "originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the
performance of such obligations, (iii) the Company, the Issuing
Lender and the Administrative Agent shall continue to deal solely
and directly with the originating Lender in connection with the
originating Lender's rights and obligations under this Agreement
and the other Loan Documents, and (iv) no Lender shall transfer
or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document,
except to the extent such amendment, consent or waiver would
require unanimous consent of the Lenders as described in the
first proviso to Section 11.1. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 4.1, 4.3 and 11.5 as though it were also a Lender
hereunder, and if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, the
Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement.
(d) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest
in, or pledge, all or any portion of its rights under and
interest in this Agreement and any Note held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Sec.203.14, and such
Federal Reserve Bank may enforce such pledge or security interest
in any manner permitted under applicable law.
11.9 Confidentiality. Each Lender agrees to take and to
cause its Affiliates to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the
Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on the Company's or any Subsidiary's
behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of
this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the
Company or any Subsidiary; except to the extent such information
(i) was or becomes generally available to the public other than
as a result of disclosure by such Lender, or (ii) was or becomes
available on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a
confidentiality agreement with the Company or any Subsidiary
known to such Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which such Lender is
subject or in connection with an examination of such Lender by
any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or
proceeding to which the Administrative Agent or any Lender or any
of their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Lender's
independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such
Person agrees in writing to keep such information confidential to
the same extent required of the Lenders hereunder; (H) as to any
Lender or its Affiliate, as expressly permitted under the terms
of any other document or agreement regarding confidentiality to
which the Company or any Subsidiary is party or is deemed party
with such Lender or such Affiliate; and (I) to its Affiliates.
11.10 Set-off. In addition to any right or remedy of the
Lenders provided by law, if an Event of Default exists, or the
Loans have been accelerated, each Lender is authorized at any
time and from time to time, without prior notice to the Company,
any such notice being waived by the Company 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 by, and other indebtedness at any time owing by, such
Lender to or for the credit or the account of the Company against
any and all Obligations owing to such Lender, now or hereafter
existing, irrespective of whether or not the Administrative Agent
or such Lender shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be
contingent or unmatured. Each Lender agrees promptly to notify
the Company and the Administrative Agent after any such set-off
and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set-off
and application.
11.11 Notification of Addresses, Lending Offices, Etc.
Each Lender shall notify the Administrative Agent in writing of
any change in the address to which notices to such Lender should
be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
11.12 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of which taken together
shall constitute but one and the same instrument.
11.13 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or such instrument or agreement.
11.14 No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and legal benefit of the
Company, the Lenders, the Administrative Agent and the Agent-
Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
11.15 Governing Law and Jurisdiction. THIS AGREEMENT AND
ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
11.16 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND
THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND
THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding among the Company, the Lenders and the
Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
11.18 Increase of Indebtedness Under Existing Credit
Agreement. This Agreement constitutes an amendment and
restatement of the Existing Credit Agreement in its entirety, and
the Notes executed, delivered and accepted pursuant hereto are
for the purpose of increasing the amounts payable under those
notes executed by the Company under the Existing Credit Agreement
in the original aggregate principal amount of $125,000,000, the
payment of which is secured by all of the collateral referred to
in the Existing Credit Agreement and the documents executed in
connection therewith which collateral shall continue in full
force and effect as security for the Obligations under this
Agreement without abatement or interruption until the Obligations
are fully paid and all the Commitments are terminated.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York
by their proper and duly authorized officers as of the day and
year first above written.
AMERICAN DISPOSAL SERVICES, INC.
By:_____________________________
Title:__________________________
ING (U.S.) CAPITAL CORPORATION,
as Administrative Agent
By:_____________________________
Title:__________________________
ING (U.S.) CAPITAL CORPORATION,
as Lender
By:_____________________________
Title:__________________________
BHF-BANK AKTIENGESELLSCHAFT, as
Lender
By:_____________________________
Title:__________________________
By:_____________________________
Title:__________________________
BANK OF AMERICA ILLINOIS, as Lender
By:_____________________________
Title:__________________________
Second Amended and Restated Credit
Agreement
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Lender
By:_____________________________
Title:__________________________
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By:_____________________________
Title:__________________________
LASALLE NATIONAL BANK, as Lender
By:_____________________________
Title:__________________________
CREDIT SUISSE FIRST BOSTON, as
Lender
By:_____________________________
Title:__________________________
HARRIS TRUST AND SAVINGS BANK,
as Lender
By:_____________________________
Title:__________________________
Second Amended and Restated Credit
Agreement
MERCANTILE BANK NATIONAL
ASSOCIATION, as Lender
By:_____________________________
Title:__________________________
WELLS FARGO BANK, N.A., as Lender
By:_____________________________
Title:__________________________
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as Lender
By:_____________________________
Title:__________________________
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC., as Lender
By:_____________________________
Title:__________________________
Second Amended and Restated Credit
Agreement
SCHEDULE 1.1
COMMITMENTS
AND PRO RATA SHARES
Term Loan Pro Rata
Lender Commitment Share
ING (U.S.) Capital
Corporation $10,000,000 16.67%
BHF-Bank
Aktiengesellschaft $5,000,000 8.33%
Bank of America Illinois $ 0 0%
Morgan Guaranty Trust
Company of New York $8,000,000 13.33%
Union Bank of California,
N.A $5,000,000 8.33%
LaSalle National Bank $ 0 0%
Credit Suisse First Boston $8,000,000 13.33%
Harris Trust and Savings Bank $ 0 0%
Mercantile Bank National
Association $ 0 0%
Wells Fargo Bank, N.A. $2,000,000 3.33%
Van Kampen American Capital
Prime Rate Income Trust $11,000,000 18.33%
Merrill Lynch Senior Floating
Rate Fund, Inc. $11,000,000 18.33%
___________ _______
$60,000,000 100.00%
Lender Expansion Loan Pro Rata
Commitment Share
ING (U.S.) Capital
Corporation $15,000,000 10.71%
BHF-Bank
Aktiengesellschaft $15,000,000 10.71%
Bank of America Illinois $20,000,000 14.29%
Morgan Guaranty Trust
Company of New York $17,000,000 12.14%
Union Bank of
California, N.A. $20,000,000 14.29%
LaSalle National Bank $15,000,000 10.71%
Credit Suisse First Boston $ 0 0%
Harris Trust and Savings
Bank $15,000,000 10.71%
Mercantile Bank National
Association $10,000,000 7.14%
Wells Fargo Bank, N.A. $13,000,000 9.29%
Van Kampen American
Capital Prime Rate
Income Trust $ 0 0%
Merrill Lynch Senior
Floating Rate Fund, Inc. $ 0 0%
___________ _______
$140,000.000 100.00%
<PAGE>
SCHEDULE 6.12
ENVIRONMENTAL MATTERS
<PAGE>
SCHEDULE 6.16
SUBSIDIARIES AND MINORITY INTERESTS
(a) Subsidiaries Percentage of Ownership
(b) Other Equity Investments
<PAGE>
SCHEDULE 6.17
INSURANCE MATTERS
<PAGE>
SCHEDULE 6.20
EQUITY RIGHTS
<PAGE>
SCHEDULE 8.1
LIENS
<PAGE>
SCHEDULE 8.5
INDEBTEDNESS
<PAGE>
SCHEDULE 8.8
CONTINGENT OBLIGATIONS
<PAGE>
SCHEDULE 11.2
OFFICES, ADDRESSES FOR NOTICES
AMERICAN DISPOSAL SERVICES, INC,
745 McClintock Drive
Suite 305
Burr Ridge, Illinois 60521
Attention: Chief Financial Officer
Telephone: (708) 655-1105
Facsimile: (708) 655-1455
ING (U.S.) CAPITAL CORPORATION,
as Administrative Agent
135 East 57th Street
New York, New York 10022
Attention: Patricia Lorenzana
Telephone: (212) 409-1721
Facsimile: (212) 750-8935
ING (U.S.) CAPITAL CORPORATION,
as Lender and Issuing Lender
135 East 57th Street
New York, New York 10022
Attention: David Scopelliti
Telephone: (212) 409-1955
Facsimile: (212) 593-3362
BHF-BANK AKTIENGESELLSCHAFT, GRAND CAYMAN BRANCH,
as Co-Agent
590 Madison Avenue
New York, NY 10022
For Credit:
Attention: Paul Travers
Telephone: (212) 756-5570
Facsimile: (212) 756-5536
For Operations and Loan Administration:
Attention: Sharon Fong
Telephone: (212) 756-5503
Facsimile: (212) 756-5536
BANK OF AMERICA ILLINOIS,
as Lender
For Credit:
231 S. LaSalle St.
Suite 0638
Chicago, IL 60697
Attention: Jennifer Gerdes
Telephone: (312) 828-2892
Facsimile: (312) 828-7327
For Operations:
231 S. LaSalle St.
11th Floor
Chicago, IL 60697
Attention: Vicky Drungole
Telephone: (312) 828-8155
Facsimile: (312) 974-1199
For Administration:
231 S. LaSalle St.
Suite 0633
Chicago, IL 60697
Attention: Carol Sloane
Telephone: (312) 828-8845
Facsimile: (312) 828-7327
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
For Credit:
60 Wall Street
New York, NY
Attention: Stephen Hannan
Telephone: (212) 648-7679
Facsimile: (212) 648-5005
For Operations:
500 Stanton Road
Newark, DE
Attention: Nicole Pedicone
Telephone: (302) 634-1912
Facsimile: (302) 634-4300
For Administration:
500 Stanton Road
Newark, DE
Attention: Mark Connor
Telephone: (302) 634-4218
Facsimile: (310) 634-1092
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Lender
For Credit:
60 Wall Street
New York, NY
Attention: Stephen Hannan
Telephone: (212) 648-7679
Facsimile: (212) 648-5005
For Operations:
500 Stanton Road
Newark, DE
Attention: Nicole Pedicone
Telephone: (302) 634-1912
Facsimile: (302) 634-4300
For Administration:
500 Stanton Road
Newark, DE
Attention: Mark Connor
Telephone: (302) 634-4218
Facsimile: (310) 634-1092
UNION BANK OF CALIFORNIA, N.A., as Documentation Agent
Energy Capital Services
445 S. Figueroa Street, 15th Floor
Los Angeles, CA 90071
For Credit:
Attention: Vicente C. Bendanillo/Julie Bloomfield
Telephone: (213) 236-6198/5779
Facsimile: (213) 236-4096
For Operations:
Attention: Yolande Hollis
Telephone: (213) 236-5130/6199
Facsimile: (213) 236-4096
UNION BANK OF CALIFORNIA, N.A., as Lender
Energy Capital Services
445 S. Figueroa Street, 20th Floor
Los Angeles, CA 90071
For Credit:
Attention: Vicente C. Bendanillo/Julie Bloomfield
Telephone: (213) 236-6198/5779
Facsimile: (213) 236-4096
For Operations:
Attention: Yolande Hollis
Telephone: (213) 236-5130/6199
Facsimile: (213) 236-4096
LASALLE NATIONAL BANK, as Lender
For Credit:
211 North Broadway
Suite 240
St. Louis, MO 63102
Attention: Andrew K. Dawson
Telephone: (314) 613-1902
Facsimile: (314) 621-1612
For Operations:
135 South LaSalle Street
Suite 306
Chicago, IL 60603
Attention: Dhaval Gandhi
Telephone: (312) 894-5523
Facsimile: (312) 606-8423
For Administration:
211 North Broadway
Suite 240
St. Louis, MO 63102
Attention: Melodie Cotton
Telephone: (314) 613-1902
Facsimile: (314) 621-1612
CREDIT SUISSE FIRST BOSTON, as Lender
11 Madison Avenue
New York, NY 10010
For Credit:
227 West Monroe Street
Suite 4000
Chicago, IL 60606
Telephone: (312) 630-0086
Facsimile: (312) 630-0359
For Operations and Administration:
Primary:
11 Madison Avenue
New York, NY 10017
Attention: Hazel Leslie
Telephone: (212) 325-9049
Facsimile: (212) 325- 8316
Secondary:
227 West Monroe
Chicago, IL 60606
Attention: John Marlatt
Telephone: (312) 630-0086
Facsimile: (312) 630-0359
HARRIS TRUST AND SAVINGS BANK, as Lender
111 W. Monroe
P.O. Box 790
Chicago, IL 60694
For Credit:
Attention: Gail W. Hartman
Telephone: (312) 461-2782
Facsimile: (312) 765-8348
For Operations and Administration:
Attention: Lillie M. Berger
Telephone: (312) 461-3434
Facsimile: (312) 765-8348
MERCANTILE BANK NATIONAL ASSOCIATION, as Lender
Tram 12-3
One Mercantile Center
St. Louis, MO 63101-1643
For Credit and Administration:
Attention: Kathy Robinson
Telephone: (314) 425-2514
Facsimile: (314) 425-2162
For Operations:
Attention: Rachelle Busekrus
Telephone: (314) 425-2513
Facsimile: (314) 425-2162
WELLS FARGO BANK, N.A., as Lender
For Credit:
Attention: Dana D. Cagle
1445 Ross Avenue
Suite 400
Dallas, Texas 75202
Telephone: (214) 777-4007
Facsimile: (214) 777-4044
For Operations and Administration:
Attention: Lupe Barajas
420 Montgomery Street
9th Floor
San Francisco, CA 94104
Telephone: (415) 396-3705
Facsimile: (415) 989-4319
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC., as Lender
Merrill Lynch Asset Management
800 Scudders Mill Road - Area 2C
Plainsboro, New Jersey 08536
For Administration:
Attention:
Jill Montanye
Merrill Lynch Senior Floating Rate Fund, Inc.
Telephone: (609) 282-3102
Facsimile: (609) 282-2550/2756
with a copy to:
John Dugan
MLAM Accounting
500 College Road - 4E
Plainsboro, New Jersey 08536
Telephone: (609) 282-7705
Facsimile: (609) 282-7616
For Credit:
Attention:
Anthony Clemente
Merrill Lynch Senior Floating Rate Fund, Inc.
Telephone: (609) 282-2092
Facsimile: (609) 282-2550/2756
MERRILL LYNCH PRIME RATE PORTFOLIO, as Lender
Merrill Lynch Asset Management
800 Scudders Mill Road - Area 2C
Plainsboro, New Jersey 08536
For Administration:
Attention:
Jill Montanye
Merrill Lynch Prime Rate Portfolio
Telephone: (609) 282-3102
Facsimile: (609) 282-2550
with a copy to:
Colleen Wade
MLAM Accounting
500 College Road - 4E
Plainsboro, New Jersey 08536
Telephone: (609) 282-7706
Facsimile: (609) 282-7616
VAN KAMPEN AMERICAN PRIME RATE INCOME TRUST, as Lender
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attention: Jeffrey Maillet
Telephone: (630) 684-6438
Facsimile: (630) 684-6740/6741
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . .1
1.2 Other Interpretive Provisions. . . . . . . . . . . . . . .24
1.3 Accounting Principles. . . . . . . . . . . . . . . . . . .25
ARTICLE II
THE CREDITS
2.1 The Credits. . . . . . . . . . . . . . . . . . . . . . . .26
2.2 The Commitments . . . . . . . . . . . . . . . . . . . . . 26
2.3 The Notes. . . . . . . . . . . . . . . . . . . . . . . . .26
2.4 Procedure for Borrowing. . . . . . . . . . . . . . . . . .27
2.5 Conversion and Continuation Elections. . . . . . . . . . .27
2.6 Voluntary Termination or Reduction of Commitments. . . . .29
2.7 Mandatory Reduction of Commitments
2.8 Optional Prepayments. . . . . . . . . . . . . . . . . .30
2.9 Mandatory Prepayments. . . . . . . . . . . . . . . . . .30
2.10 Application . . . . . . . . . . . . . . . . . . . . . . .31
2.11 Repayment. . . . . . . . . . . . . . . . . . . . . . . . 32
2.12 Interest. . . . . . . . . . . . . . . . . . . . . . . . .32
2.13 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . .33
2.14 Computation of Fees and Interest. . . . . . . . . . . . .34
2.15 Payments by the Company. . . . . . . . . . . . . . . . . 34
2.16 Payments by the Lenders to the Administrative Agent . . .35
2.17 Sharing of Payments, Etc. . . . . . . . . . . . . . . . .35
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. . . . . . . . . . . . . 36
3.2 Issuance, Amendment and Renewal of Letters of Credit . . .37
3.3 Risk Participations, Drawings and Reimbursements . . . . .39
3.4 Repayment of Participations. . . . . . . . . . . . . . . .41
3.5 Role of the Issuing Lender . . . . . . . . . . . . . . . .41
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . .42
3.7 Cash Collateral Pledge . . . . . . . . . . . . . . . . . .43
3.8 Letter of Credit Fees. . . . . . . . . . . . . . . . . . .43
3.9 Uniform Customs and Practice . . . . . . . . . . . . . . .44
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . .45
4.3 Increased Costs and Reduction of Return. . . . . . . . . .46
4.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . .47
4.5 Inability to Determine Rates . . . . . . . . . . . . . . .47
4.6 Certificates of Lenders. . . . . . . . . . . . . . . . . .48
4.7 Substitution of Lenders. . . . . . . . . . . . . . . . . .48
4.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . .48
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions . . . . . . . . . 48
(a) Credit Agreement and Notes. . . . . . . . . . . . . .48
(b) Resolutions; Incumbency . . . . . . . . . . . . . . .48
(c) Certificate. . . . . . . . . . . . . . . . . . . . . 49
(d) Legal Opinions . . . . . . . . . . . . . . . . . . . 49
(e) Payment of Fees . . . . . . . . . . . . . . . . . . .50
(f) Guaranty. . . . . . . . . . . . . . . . . . . . . . .50
(g) Security Agreement, etc.. . . . . . . . . . . . . . .50
(h) Pledge Agreements . . . . . . . . . . . . . . . . . .50
(i) Real Estate Documents . . . . . . . . . . . . . . . .50
(j) Key-Man Life Policy . . . . . . . . . . . . . . . . .51
(k) Repayment of Amounts under Existing Credit
Agreement . . . . . . . . . . . . . . . . . . . . . .51
(l) Equity Offering. . . . . . . . . . . . . . . . . . . .51
(n) Other Documents. . . . . . . . . . . . . . . . . . . 51
5.2 Additional Conditions to Expansion Loans. . . . . . . . . 51
(a) Purchase Agreement. . . . . . . . . . . . . . . . . .52
(b) Consent of Lenders. . . . . . . . . . . . . . . . . .52
(c) Fact Sheet and Certificate of Senior Financial
Officer . . . . . . . . . . . . . . . . . . . . . . .52
(iii) . . . . . . . . . . . . . . . . . . . . . . . .53
(iv). . . . . . . . . . . . . . . . . . . . . . . . .53
(d) Perfected Security Interest. . . . . . . . . . . . . 53
(e) Environmental Audit and/or Review . . . . . . . . . .53
(f) No Material Litigation; Satisfactory Legal Form . . .53
. . . . . . . . . . . . . . . . . . . . . . . . . . .54
5.3 Conditions to All Credit Extensions. . . . . . . . . . . .54
(a) Notice, Application . . . . . . . . . . . . . . . . .54
(b) Continuation of Representations and Warranties. . . .54
(c) No Existing Default . . . . . . . . . . . . . . . . .54
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence and Power . . . . . . . . . . . . . . 54
6.2 Corporate Authorization; No Contravention . . . . . . . . 55
6.3 Governmental Authorization. . . . . . . . . . . . . . . . 55
6.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . . 55
6.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . 55
6.6 No Default. . . . . . . . . . . . . . . . . . . . . . . . 56
6.7 ERISA Compliance. . . . . . . . . . . . . . . . . . . . . 56
6.8 Use of Proceeds; Margin Regulations. . . . . . . . . . . .57
6.9 Title to Properties. . . . . . . . . . . . . . . . . . . .57
6.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.11 Financial Condition. . . . . . . . . . . . . . . . . . . 57
6.12 Environmental Compliance. . . . . . . . . . . . . . . . .57
(a) No Violations. . . . . . . . . . . . . . . . . . . . 57
(b) Notices. . . . . . . . . . . . . . . . . . . . . . . 58
(c) Handling of Hazardous Substances. . . . . . . . . . .58
(d) Clean-Ups. . . . . . . . . . . . . . . . . . . . . . 59
(e) Permits and Governmental Authority. . . . . . . . . .59
(f) Investigations. . . . . . . . . . . . . . . . . . . .59
6.13 Regulated Entities. . . . . . . . . . . . . . . . . . . .59
6.14 No Burdensome Restrictions. . . . . . . . . . . . . . . .59
6.15 Copyrights, Patents, Trademarks and Licenses, etc.. . . .59
6.16 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 59
6.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . 60
6.18 Solvency, etc. . . . . . . . . . . . . . . . . . . . . .60
6.19 Full Disclosure. . . . . . . . . . . . . . . . . . . . . 60
6.20 Equity Rights, etc. . . . . . . . . . . . . . . . . . . .60
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Financial Statements. . . . . . . . . . . . . . . . . . .61
7.2 Certificates; Other Information. . . . . . . . . . . . . 62
7.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 62
7.4 Preservation of Corporate Existence, Etc.. . . . . . . . 64
7.5 Maintenance of Property. . . . . . . . . . . . . . . . . 65
7.6 Insurance. . . . . . . . . . . . . . . . . . . . . . . . 65
7.7 Payment of Obligations. . . . . . . . . . . . . . . . . .65
7.8 Compliance with Laws. . . . . . . . . . . . . . . . . . .65
7.9 Compliance with ERISA . . . . . . . . . . . . . . . . . .66
7.10 Inspection of Property and Books and Records. . . . . . 66
7.11 Environmental Matters. . . . . . . . . . . . . . . . . .66
7.12 Use of Proceeds. . . . . . . . . . . . . . . . . . . . .67
7.13 Key-Man Life Policy. . . . . . . . . . . . . . . . . . .67
7.14 Rate Protection . . . . . . . . . . . . . . . . . . . . 67
7.15 Additional Collateral. . . . . . . . . . . . . . . . . .68
7.16 Future Subsidiaries. . . . . . . . . . . . . . . . . . .68
7.17 Further Assurances . . . . . . . . . . . . . . . . . . .69
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Limitation on Liens. . . . . . . . . . . . . . . . . . . .70
8.2 Disposition of Assets. . . . . . . . . . . . . . . . . . .71
8.3 Consolidations and Mergers. . . . . . . . . . . . . . . . 72
8.4 Loans and Investments. . . . . . . . . . . . . . . . . . .72
8.5 Limitation on Indebtedness. . . . . . . . . . . . . . . . 73
8.6 Transactions with Affiliates. . . . . . . . . . . . . . . 74
8.7 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . .74
8.8 Contingent Obligations. . . . . . . . . . . . . . . . . . 74
8.9 Lease Obligations. . . . . . . . . . . . . . . . . . . . .75
8.10 Minimum Interest Coverage Ratio. . . . . . . . . . . . . 75
8.11 Total Indebtedness to Capitalization Ratio. . . . . . . .75
8.12 Minimum Fixed Charge Coverage Ratio. . . . . . . . . . . 76
8.13 Maximum Capital Expenditures. . . . . . . . . . . . . . .76
8.14 Total Indebtedness to EBITDA Ratio. . . . . . . . . . . .76
8.15 Restricted Payments. . . . . . . . . . . . . . . . . . . 77
8.16 Landfill Development. . . . . . . . . . . . . . . . . . .77
8.17 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . ..77
8.18 Change in Business. . . . . . . . . . . . . . . . . . . .78
8.19 Accounting Changes . . . . . . . . . . . . . . . . . . . 78
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. . . . . . . . . . . . . . . . . . . . .78
(a) Non-Payment. . . . . . . . . . . . . . . . . . . . .78
(b) Representation or Warranty . . . . . . . . . . . . .78
(c) Specific Defaults. . . . . . . . . . . . . . . . . .78
(d) Other Defaults. . . . . . . . . . . . . . . . . . . 78
(e) Cross-Default. . . . . . . . . . . . . . . . . . . .78
(f) Insolvency; Voluntary Proceedings. . . . . . . . . .79
(g) Involuntary Proceedings. . . . . . . . . . . . . . .79
(h) ERISA. . . . . . . . . . . . . . . . . . . . . . . .79
(i) Monetary Judgments. . . . . . . . . . . . . . . . . 79
(j) Non-Monetary Judgments. . . . . . . . . . . . . . . 80
(k) Change of Control or Management. . . . . . . . . . .80
(l) Guarantor Defaults. . . . . . . . . . . . . . . . . 80
(m) Security Agreement, etc.. . . . . . . . . . . . . . 80
(n) Pledge Agreements. . . . . . . . . . . . . . . . . .80
(o) Material Environmental Events. . . . . . . . . . . .80
9.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . .81
9.3 Rights Not Exclusive. . . . . . . . . . . . . . . . . . .81
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization . . . . . . . . . . . . . .82
10.2 Delegation of Duties. . . . . . . . . . . . . . . . . . .82
10.3 Liability of Administrative Agent. . . . . . . . . . . . 82
10.4 Reliance by Administrative Agent. . . . . . . . . . . . .83
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . 83
10.6 Credit Decision. . . . . . . . . . . . . . . . . . . . . 83
10.7 Indemnification of Administrative Agent. . . . . . . . . 84
10.8 Administrative Agent in Individual Capacity. . . . . . . 84
10.9 Successor Administrative Agent. . . . . . . . . . . . . .85
10.10 Withholding Tax. . . . . . . . . . . . . . . . . . . . .85
ARTICLE XI
MISCELLANEOUS
11.1 Amendments, Waivers and Consents to Expansion Loans . . .88
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . .89
11.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . .90
11.4 Costs and Expenses . . . . . . . . . . . . . . . . . . . 90
11.5 Company Indemnification. . . . . . . . . . . . . . . . . 90
11.6 Payments Set Aside. . . . . . . . . . . . . . . . . . . .91
11.7 Successors and Assigns. . . . . . . . . . . . . . . . . .91
11.8 Assignments, Participations, etc.. . . . . . . . . . . . 91
11.9 Confidentiality. . . . . . . . . . . . . . . . . . . . . 93
11.10 Set-off. . . . . . . . . . . . . . . . . . . . . . . . .93
11.11 Notification of Addresses, Lending Offices, Etc.. . . . 94
11.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . 94
11.13 Severability. . . . . . . . . . . . . . . . . . . . . . 94
11.14 No Third Parties Benefited. . . . . . . . . . . . . . . 94
11.15 Governing Law and Jurisdiction. . . . . . . . . . . . . 94
11.16 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . 95
11.17 Entire Agreement. . . . . . . . . . . . . . . . . . . . 95
11.18 Increase of Indebtedness Under Existing Credit
Agreement. . . . . . . . . . . . . . . . . . . . . . . .95
SCHEDULES
Schedule 1.1 Commitments and Pro Rata Shares
Schedule 6.12 Environmental Matters
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 6.17 Insurance Matters
Schedule 6.20 Equity Rights
Schedule 8.1 Liens
Schedule 8.5 Indebtedness
Schedule 8.8 Contingent Obligations
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Opinion of New York Counsel to the
Company and the Guarantors
Exhibit E Form of Guaranty
Exhibit F Form of Security Agreement
Exhibit G-1 Form of Company Pledge Agreement
Exhibit G-2 Form of Subsidiary Pledge Agreement
Exhibit H Form of Assignment and Acceptance
Exhibit I-1 Form of Term Loan Note
Exhibit I-2 Form of Expansion Loan Note
Exhibit J-1 Form of Fact Sheet
Exhibit J-2 Form of Eligible Acquisition Certificate
