EXHIBIT 10.1(f)
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FOURTH AMENDMENT
TO REVOLVING CREDIT
AND PARTICIPATION AGREEMENT
This FOURTH AMENDMENT TO REVOLVING CREDIT AND PARTICIPATION AGREEMENT
(this "Fourth Amendment") is dated as of January 31, 2002 and entered into by
and among COVANTA ENERGY CORPORATION, a Delaware corporation ("Company"), and
THE SUBSIDIARIES LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS
(collectively, Company and such Subsidiaries of Company are "Borrowers" and each
a "Borrower"), the Loan Parties listed on the signature pages hereof, the
financial institutions parties hereto (each a "Lender" and collectively, the
"Lenders"), BANK OF AMERICA, N.A., as Administrative Agent for the Lenders
("Administrative Agent"), and DEUTSCHE BANK AG, NEW YORK BRANCH, as
Documentation Agent for the Lenders ("Documentation Agent"), and is made with
reference to that certain Revolving Credit and Participation Agreement dated as
of March 14, 2001 (as amended, restated, supplemented or otherwise modified
prior to the date hereof, the "Credit Agreement"), by and among Borrowers, the
Lenders listed therein as Lenders, Administrative Agent and Documentation Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers and Lenders desire to amend the Credit Agreement to
(i) change the "Cumulative Allowable Cash Usage" set forth in the Monthly Budget
for certain months; (ii) permit certain changes with respect to the Contractual
Obligations relating to the Tampa Bay Water Systems Project and the GECC Credit
Facilities; (iii) require Borrowers to deliver to the Lenders a weekly budget
through March 31, 2002; (iv) change the maximum Consolidated Leverage Ratio for
certain periods; and (v) make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Provisions Relating to Defined Terms.
Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "Budget Period", "Operational Expenditure Variance Allowance"
and "Weekly Budget" contained therein and inserting the following new
definitions in the appropriate alphabetical order:
"Budget Period" means (i) with respect to any calculation determining
compliance with subsection 7.16 on or prior to January 31, 2002, the period
from December 15, 2001 through January 31, 2002, and (ii) with respect to
any calculation determining compliance with subsection 7.16 after January
31, 2002, the period from February 1, 2002 through March 31, 2002.
"Collateral Accounts" means (i) the Cash Collateral Account, (ii) the
concentration account maintained with BofA in the Cash Management System
and (iii) the primary operating accounts maintained with BofA for Covanta
Energy Group, Covanta Power, Covanta Holdings and Covanta Water Systems,
Inc.; provided, that Collateral Accounts shall in no event include (x) any
foreign accounts or (y) any debt service reserve accounts or cash
collateral accounts established to make payments of Limited Recourse Debt.
"Covanta Tampa Bay" means Covanta Tampa Bay, Inc., a Florida
corporation, and any successor thereto.
"Fourth Amendment" means that certain Fourth Amendment to Revolving
Credit and Participation Agreement dated as of January 31, 2002 by and
among Borrowers, the Subsidiary Guarantors and the Lenders and Agents party
thereto.
"Fourth Amendment Effective Date" has the meaning assigned to that
term in Section 4.8 of the Fourth Amendment.
"New Covanta TB Sub" means a wholly owned, indirect Subsidiary of
Company to be formed after the Fourth Amendment Effective Date to assume
the rights and obligations of Covanta Tampa Bay under the Tampa Bay EPC
Contract and the "Subcontracts" (as defined in the Tampa Bay Water Project
Amendment).
"Operational Expenditure Variance Allowance" means (i) with respect to
any calculation determining compliance with subsection 7.16 on or prior to
January 31, 2002, $1,000,000, and (ii) with respect to any calculation
determining compliance with subsection 7.16 after January 31, 2002, $0.
"Tampa Bay Developer" means Tampa Bay Desal, LLC, a Delaware limited
liability company.
"Tampa Bay EPC Contract" means that certain Turnkey Engineering,
Procurement and Construction Contract dated as of December 17, 2000 by and
between Tampa Bay Developer and Covanta Tampa Bay, as in effect on the
Fourth Amendment Effective Date and as it may thereafter be amended,
supplemented or otherwise modified from time to time.
"Tampa Bay O&M Contract" means the Operation, Maintenance, Repair and
Replacement Agreement dated as of January 23, 2001, entered into by Covanta
Tampa Bay relating to the seawater desalination plant for Tampa Bay Water,
a regional water supply authority, as such agreement may be amended,
supplemented or otherwise modified as permitted hereunder.
"Tampa Bay Water Project Amendment" means that certain Third Amendment
to Turnkey Engineering, Procurement and Construction Contract dated as of
January 17, 2002 by and between Tampa Bay Developer and Covanta Tampa Bay,
in the form delivered to the Agents on or prior to January 25, 2002 (except
that such amendment shall be modified (i) so as not to require any
amendment to the Organizational Documents of Covanta Tampa Bay, (ii) to
permit Covanta Tampa Bay to remain a Borrower under this Agreement, a
grantor under the relevant Collateral Documents and a guarantor under the
Opt-Out Facility Guaranties and (iii) to permit New Covanta TB Sub to
assume the Tampa Bay EPC Contract from Covanta Tampa Bay) and as it may be
amended, supplemented or otherwise modified with the approval of Agents.
"Weekly Budget" means (i) with respect to any calculation determining
compliance with subsection 7.16 on or prior to January 31, 2002, the
consolidated cash forecast annexed hereto as Schedule 6.19 with respect to
each week commencing during the relevant Budget Period, (ii) with respect
to any calculation determining compliance with subsection 7.16 after
January 31, 2002, the consolidated cash forecast annexed hereto as Schedule
6.20 with respect to each week commencing during the relevant Budget
Period. The Weekly Budget shall contain, in each case, items corresponding
to those in the 13-Week Rolling Forecast and shall set forth a "minimum
cash balance" for each such week.
1.2 Provision Relating to Representations and Warranties.
Section 5 of the Credit Agreement is hereby amended by adding at the
end thereof the following new subsection 5.22:
"5.22 Tampa Bay Water Systems Project.
On and after the Fourth Amendment Effective Date and after
giving effect to the Tampa Bay Water Project Amendment, Administrative
Agent shall have a valid and perfected First Priority Lien on all right,
title and interest of Company and its Subsidiaries in and to the Tampa Bay
O&M Contract. None of Company, Covanta Tampa Bay nor any of their
respective Subsidiaries expects to receive or is entitled to receive
aggregate net revenue (considering expenditures and revenue) pursuant to
the Tampa Bay EPC Contract at any time after the Fourth Amendment Effective
Date. The unaudited balance sheet of Covanta Tampa Bay and its Subsidiaries
as at January 31, 2002 delivered to the Agents prior to the Fourth
Amendment Effective Date (which shall be in form reasonably acceptable to
Agents) fairly presents the financial position of Covanta Tampa Bay and its
Subsidiaries as of such date."
1.3 Provision Relating to Indebtedness.
Subsection 7.1 of the Credit Agreement is hereby amended by deleting
the reference to "January 31, 2002" contained in the last paragraph of such
subsection and substituting therefor "March 31, 2002".
1.4 Provision Relating to Leverage Ratio Covenant.
A. Subsection 7.6B of the Credit Agreement is hereby amended by (i)
deleting from the table contained therein the reference to "February 1, 2001
through March 31, 2002" and substituting therefor "March 1, 2002 through March
31, 2002" and (ii) inserting in such table, immediately prior to the row amended
pursuant to the preceding clause (i), the following new row:
"February 1, 2002 through February 28, 2002 3.30:1.00".
B. The parties hereto hereby agree that on February 28, 2002, so long
as (i) no Event of Default or Potential Event of Default shall have occurred and
be continuing and (ii) the actual cash balance in the Collateral Accounts as of
such date equals or exceeds $30,000,000, subsection 7.6B of the Credit Agreement
shall be hereby further amended by deleting the reference to "2.00:1.00" in the
row containing the reference to "March 1, 2002 through March 31, 2002" and
substituting therefor "3.30:1.00".
1.5 Provision Relating to Investments.
Subsection 7.3 of the Credit Agreement is hereby amended by (i)
deleting the word "and" after clause (xv) thereof, (ii) deleting the "." at the
end of clause (xvi) and substituting therefor "; and", and (iii) adding the
following new clause (xvii) at the end thereof:
"(xvii) After the Fourth Amendment Effective Date, Company and its
Subsidiaries may (i) form New Covanta TB Sub, so long as (a) the equity
interests of New Covanta TB Sub shall be pledged as Collateral under the
Collateral Documents and (b) at all times after Covanta Tampa Bay shall
have consummated the assignment described in subsection 7.7(xiv)(a), New
Covanta TB Sub shall be an Excluded Subsidiary meeting the criteria set
forth in the clauses (i) and (ii) of the penultimate sentence of the
definition of "Excluded Subsidiary", and (ii) make and own Investments
consisting of amounts advanced by New Covanta TB Sub to Tampa Bay
Developer, solely to the extent such amounts are advanced after the
assignment described in subsection 7.7(xiv)(a) as additional "retainage" on
the terms set forth in the Tampa Bay Water Project Amendment and are not in
excess of the aggregate amounts therefor set forth for the relevant period
in the Weekly Budget."
1.6 Provision Relating to Asset Sales.
Subsection 7.7 of the Credit Agreement is hereby amended by (i)
deleting the word "and" after clause (xii) thereof, (ii) deleting the "." at the
end of clause (xiii) and substituting therefor "; and", and (iii) adding the
following new clause (xiv) at the end thereof:
"(xiv) After the Fourth Amendment Effective Date, (a) Covanta Tampa
Bay may transfer and assign all of its rights and obligations under the
Tampa Bay EPC Contract and the "Subcontracts" (as defined in the Tampa Bay
Water Project Amendment) (but not, in any event, the Tampa Bay O&M
Contract) to New Covanta TB Sub pursuant to documentation in form and
substance reasonably satisfactory to Agents, and (b) immediately after such
assignment, New Covanta TB Sub may assign such Subcontracts to Tampa Bay
Developer free and clear of Liens under the Collateral Documents and
increase Tampa Bay Developer's "retainage" from the amounts paid to Covanta
Tampa Bay and New Covanta TB Sub by Tampa Bay Developer, in each case in
accordance with the terms of the Tampa Bay Water Project Amendment, so long
as Tampa Bay Developer agrees to limit the liability of Company and its
Subsidiaries under the Tampa Bay EPC Contract to $14,000,000 on the terms
set forth in the Tampa Bay Water Project Amendment."
1.7 Provisions Relating to the Weekly Budget.
A. Subsection 7.16A of the Credit Agreement is hereby amended by (i)
adding the word "relevant" immediately prior to each reference to "Budget
Period", "Weekly Budget" and "Operational Expenditure Variance Allowance"
contained in clauses (a), (d) and (e) of such subsection; (ii) deleting each of
the phrases "Budget Period" and "set forth for such week in the Weekly Budget"
contained in clauses (b) and (c) of such subsection and substituting therefor
"Budget Periods" and "set forth for the Budget Periods through such week in the
Weekly Budgets", respectively; and (iii) deleting the references to "Cash
Collateral Account" and "minimum cash balance" contained in clause (e) of such
subsection and substituting therefor "Collateral Accounts" and "Ending Cash
Balance", respectively.
B. Subsection 7.16C of the Credit Agreement is hereby amended by
deleting the reference to "January 31, 2002" contained therein and substituting
therefor the following:
"February 28, 2002 (or March 31, 2002, if on February 28, 2002 (x) no Event
of Default or Potential Event of Default shall have occurred and be
continuing and (y) the actual cash balance in the Collateral Accounts as of
such date equals or exceeds $30,000,000)".
1.8 Provision Relating to Restructuring of GECC Credit Facilities.
Section 7 of the Credit Agreement is hereby amended by adding at the
end thereof the following new subsection 7.17:
"7.17 Restructuring of GECC Credit Facilities.
Notwithstanding anything in subsection 7.1, 7.2, 7.3, 7.5, 7.13
or 2.5H to the contrary, after the Fourth Amendment Effective Date Company,
Heber Geothermal Company and Heber Field Company may restructure the GECC
Credit Facilities and implement the terms of such restructuring, so long as
(i) no Lien created as a result of such restructuring shall extend to any
assets other than assets of Heber Geothermal Company and Heber Field
Company, (ii) no revenues other than revenues of Heber Geothermal Company
and Heber Field Company shall serve as a source of repayment of the GECC
Credit Facilities as a result of such restructuring, (iii) no Liens granted
under the Collateral Documents in any Collateral shall be released as a
result of such restructuring, and (iv) the terms of such restructuring and
the definitive documentation therefor shall not be in conflict with the
preceding clauses (i), (ii) and (iii) and shall otherwise be in form and
substance satisfactory to Agents and their counsel."
1.9 Provisions Relating to Schedules.
A. Schedule 1.1(e). Schedule 1.1(e) of the Credit Agreement is hereby
amended by deleting the reference to "(206,000)" in the "Cumulative Allowable
Cash Usage" line item set forth in the Monthly Budget for the month of February
2002, and substituting therefor "(241,965)". The parties hereto hereby further
agree that on February 28, 2002, so long as (i) no Event of Default or Potential
Event of Default shall have occurred and be continuing and (ii) the actual cash
balance in the Collateral Accounts as of such date equals or exceeds
$30,000,000, Schedule 1.1(e) of the Credit Agreement shall hereby be further
amended by deleting the reference to "(226,000)" in the "Cumulative Allowable
Cash Usage" line item set forth in the Monthly Budget for the month of March
2002, and substituting therefor "(241,965)". The parties hereto acknowledge that
the Third Amendment changed each of the references to "(230,000)" and
"(201,000)" in the "Cumulative Allowable Cash Usage" line item set forth in the
Monthly Budget for the months of December 2001 and January 2002, respectively,
to "(241,965)".
B. Schedule 6.20. The Credit Agreement is hereby amended by adding
thereto new Schedule 6.20, in the form attached hereto as Annex A.
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Fourth Amendment and
to amend the Credit Agreement in the manner provided herein, Borrowers represent
and warrant to each Lender that the following statements are true, correct and
complete:
2.1 Corporate Power and Authority. Each Loan Party has all requisite
corporate power and authority to enter into this Fourth Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Fourth Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Fourth Amendment has been duly authorized by all necessary corporate action on
the part of each Loan Party and the performance of the Amended Agreement has
been duly authorized by all necessary corporate action on the part of each
Borrower.
2.3 No Conflict. The execution and delivery by each Loan Party of this
Fourth Amendment and the performance by each Borrower of the Amended Agreement
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to any Loan Party or any of its Subsidiaries, or
the Certificate or Articles of Incorporation or Certificate of Formation or
Bylaws or Operating Agreement of any Loan Party or any of its Subsidiaries or
any order, judgment or decree of any court or other agency of government binding
on any Loan Party or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument to which any
Loan Party or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject (each such indenture,
mortgage, deed of trust, credit agreement, loan agreement, material agreement,
contract or instrument, a "Contractual Obligation"), (iii) result in or require
the creation or imposition of any Lien upon any of the properties or assets of
any Loan Party or any of its Subsidiaries (other than Liens created under any of
the Loan Documents in favor of Administrative Agent or Collateral Agent on
behalf of the Banks), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any Loan
Party or any of its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each Loan
Party of this Fourth Amendment and the performance by each Borrower of the
Amended Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
2.5 Binding Obligation. This Fourth Amendment has been duly executed
and delivered by each Loan Party, and each of this Fourth Amendment and the
Amended Agreement is the legally valid and binding obligations of each Loan
Party enforceable against each Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 (including
subsection 5.22) of the Credit Agreement are and will be true, correct and
complete in all material respects on and as of the Fourth Amendment Effective
Date (as hereinafter defined) to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
2.7 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
3.1 Loan Party Acknowledgements. Each Borrower and Subsidiary
Guarantor hereby acknowledges that such Loan Party has read this Fourth
Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Fourth Amendment, the
obligations of such Loan Party under each of the Loan Documents to which such
Loan Party is a party shall not be impaired and each of the Loan Documents to
which such Loan Party is a party are, and shall continue to be, in full force
and effect and are hereby confirmed and ratified in all respects.
3.2 Borrower Acknowledgements. Borrowers hereby acknowledge that they
have determined, in their business judgment, to explore various possible
alternatives for raising and maintaining liquidity, including but not limited to
sales of certain Projects or businesses of Borrowers, sales of equity in Company
or certain of its Subsidiaries, and other restructuring options. Borrowers
hereby further acknowledge (i) that their determination to explore such possible
alternatives is a material inducement for each Agent's and each Lender's
decision to enter into this Fourth Amendment, and that the cash permitted to be
withdrawn by Borrowers from the Cash Collateral Account or applied from the Cash
Management System as a result of this Fourth Amendment will permit Borrowers to
continue to meet their interim cash needs and will accommodate Borrowers'
efforts to explore such alternatives, and (ii) that they intend to continue to
diligently explore such alternatives.
SECTION 4. MISCELLANEOUS
4.1 Covenants. Company hereby covenants and agrees that it shall
continue to regularly inform Agents and Lenders (and provide reasonable access
to its officers and such of its advisors and consultants as Agents may
reasonably request so as to keep Agents and Lenders informed) on its progress
with respect to each of its alternatives for raising and maintaining liquidity
and shall continue to promptly provide such financial information, financial
projections and other documents and information as Agents may reasonably request
from time to time with respect to such alternatives and Company's progress with
respect thereto.
4.2 Release. Each Borrower and Subsidiary Guarantor, on behalf of
itself, and each of its Subsidiaries (collectively, the "Releasors") hereby
releases, remises, acquits and forever discharges Agents, each Lender (in its
capacity as a Lender hereunder and as a lender, collateral agent, depository or
letter of credit issuer and in any other capacity under or in connection with
any Pooled Facility or Opt-Out Facility), each Existing Opt-Out Facility Agent
and each Existing Pooled Facility Agent and each of their respective employees,
agents, representatives, consultants, attorneys, fiduciaries, servants,
officers, directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, related corporate divisions, participants and
assigns (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, setoffs, recoupments, counterclaims,
defenses, damages and expenses of any and every character, known or unknown,
suspected or unsuspected, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date of execution hereof, and in
any way directly or indirectly arising out of or in any way connected to this
Fourth Amendment or the Amended Agreement (all of the foregoing hereinafter
called the "Released Matters"). Each Releasor acknowledges that the agreements
in this Section are intended to be in full satisfaction of all or any alleged
injuries or damages suffered or incurred by such Releasor arising in connection
with the Released Matters and constitute a complete waiver of any right of
setoff or recoupment, counterclaim or defense of any nature whatsoever which
arose prior to the date hereof to payment or performance of the Obligations
and/or Opt-Out Obligations. Each Releasor represents and warrants that it has no
knowledge of any claim by it against the Released Parties or of any facts, or
acts or omissions of the Released Parties which on the date hereof would be the
basis of a claim by the Releasors against the Released Parties which is not
released hereby. Each Releasor represents and warrants that it has not purported
to transfer, assign, pledge or otherwise convey any of its right, title or
interest in any Released Matter to any other person or entity and that the
foregoing constitutes a full and complete release of all Released Matters.
Releasors have granted this release freely, and voluntarily and without duress.
4.3 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
A. On and after the Fourth Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
B. Except as specifically amended by this Fourth Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
C. The execution, delivery and performance of this Fourth Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any Agent
or any Lender under, the Credit Agreement or any of the other Loan Documents.
D. Company agrees that any failure to comply with the covenants in
this Fourth Amendment shall be an Event of Default under the Credit Agreement.
4.4 Fees and Expenses. Each Borrower acknowledges that all costs, fees
and expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent, Documentation Agent or the Lenders and their respective
counsel (including, without limitation, O'Melveny & Xxxxx LLP and Ernst & Young
Corporate Finance LLC) with respect to this Fourth Amendment and the documents
and transactions contemplated hereby shall be for the account of Borrowers.
4.5 Headings. Section and subsection headings in this Fourth Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Fourth Amendment for any other purpose or be given any substantive
effect.
4.6 Applicable Law. THIS FOURTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.7 Counterparts; Effectiveness. This Fourth Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Fourth Amendment shall become
effective upon (i) the execution of a counterpart hereof by each Borrower, each
Subsidiary Guarantor and Lenders constituting Requisite Lenders, (ii) receipt by
each Borrower, Administrative Agent and Documentation Agent of written or
telephonic notification of such execution and authorization of delivery thereof,
(iii) the payment by Borrowers to Administrative Agent, for distribution to each
Lender that has executed and delivered a counterpart of this Fourth Amendment
prior to 3:00 p.m. (New York City time) on February 6, 2002, an amendment fee
equal to 0.125% of the sum of such Lender's Pooled Facility Exposure, Revolving
Loan Exposure and Opt-Out Facility Exposure, in each case calculated as of the
Fourth Amendment Effective Date, (iv) delivery to Agents of an unaudited balance
sheet of Covanta Tampa Bay and its Subsidiaries as at January 31, 2002 in form
reasonably acceptable to Agents, and (v) payment in full by Borrowers of all
outstanding statements of O'Melveny & Xxxxx LLP and Ernst & Young Corporate
Finance LLC and all outstanding statements for reasonable fees, expenses and
disbursements of counsel to each of the Lenders that are, in each case, received
by Company prior to the date hereof (the date of satisfaction of such conditions
being referred to herein as the "Fourth Amendment Effective Date").
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
COVANTA ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
Each of the entities named on Schedule A annexed
hereto, as Borrowers
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
Each of the entities named on Schedule B annexed
hereto, as Subsidiary Guarantors
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name:
Title:
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent, Co-Arranger, Co-Book
Runner and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
As Documentation Agent, Co-Arranger, Co-Book Runner
and as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
as a Lender
By:
--------------------------------------------
Name:
Title:
By:
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Name:
Title:
BANK OF MONTREAL,
as a Lender
By: /s/ Xxxxxxx X. Turf
--------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI (CANADA),
as a Lender
By: /s/ X. Xxxxxxxxxx
--------------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name:
Title:
BNP PARIBAS,
as a Lender
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
XXXXXX MANAGEMENT CORPORATION IV,
as a Lender
By:
--------------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
CLARICA LIFE INSURANCE COMPANY,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
as a Lender
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name:
Title:
CREDIT LYONNAIS CANADA,
as a Lender
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Xxx Xxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name:
Title:
DRESDNER BANK AG, GRAND CAYMAN BRANCH
as a Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
DRESDNER BANK CANADA,
as a Lender
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------------------------
Name:
Title:
HSBC BANK CANADA,
as a Lender
By: /s/ X. X. Xxxxxx
--------------------------------------------
Name:
Title:
By: /s/ X. X. Xxxxxx
--------------------------------------------
Name:
Title:
HSBC BANK USA,
as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
IIB BANK [IFSC BRANCH],
as a Lender
By: /s/ Xxxxxxx Xxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxx Reyagoon
--------------------------------------------
Name:
Title:
KBC BANK N.V.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC, New York and/or
Nassau Branch
as a Lender
By:
--------------------------------------------
Name:
Title:
ROYAL BANK OF SCOTLAND PLC,
as a Lender
By:
--------------------------------------------
Name:
Title:
S.C. STORMONT CORPORATION
as a Lender
By:
--------------------------------------------
Name:
Title:
SANPAOLO IMI S.p.A.,
as a Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name:
Title:
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name:
Title:
SUNTRUST BANK,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
--------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
(formerly The Chase Manhattan Bank),
as a Lender
By: /s/ Xxxxxxx Lancia
--------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED,
Los Angeles Agency
as a Lender
By:
--------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxx X. Xxx
--------------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE HUNTINGTON NATIONAL BANK,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH
as a Lender
By:
--------------------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION OF CANADA,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD. NY BRANCH,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE TOKAI BANK, LIMITED - NEW YORK BRANCH,
as a Lender
By:
--------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ X. Xxxxxx
--------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name:
Title:
UBS AG,
as a Lender
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
(formerly known as Firstar Bank, N.A.),
as a Lender
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as a Lender
By: /s/ Xxxxxx X. Xxxxx III
--------------------------------------------
Name:
Title:
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name:
Title:
Schedule A
OTHER BORROWERS
1. Covanta Acquisition, Inc.
2. Covanta Bessemer, Inc.
3. Covanta Xxxxxxxxxx Environmental Support, Inc.
4. Covanta Geothermal Operations Holdings, Inc.
5. Covanta Imperial Power Services, Inc.
6. Covanta Oahu Waste Energy Recovery, Inc.
7. Covanta Energy Americas, Inc.
8. Covanta Energy Construction, Inc.
9. Covanta Energy Group, Inc.
10. Covanta Energy Resource Corp.
11. Covanta Energy Sao Xxxxxxxx, Inc.
12. Covanta Energy West, Inc.
13. Covanta Energy International, Inc.
14. Covanta Energy Services, Inc.
15. Covanta Equity of Stanislaus, Inc.
16. Covanta Financial Services, Inc.
17. Covanta Geothermal Operations, Inc.
18. Covanta Haverhill Properties, Inc.
19. Covanta Hydro Energy, Inc.
20. Covanta Hydro Operations West, Inc.
21. Covanta Haverhill, Inc.
22. Covanta Huntington Resource Recovery One Corp.
23. Covanta Huntington Resource Recovery Seven Corp.
24. Covanta Long Island, Inc.
25. Covanta Oil & Gas, Inc.
26. Covanta Omega Lease, Inc.
27. Covanta Onondaga Five Corp.
28. Covanta Onondaga Four Corp.
29. Covanta Onondaga Three Corp.
30. Covanta Onondaga Two Corp.
31. Covanta Onondaga, Inc.
32. Covanta Onondaga Operations, Inc.
33. Covanta OPWH, Inc.
34. Covanta Power Development, Inc.
35. Covanta Power Development of Bolivia, Inc.
36. Covanta Power Equity Corporation
37. Covanta Power International Holdings, Inc.
38. Covanta Projects, Inc.
39. Covanta RRS Holdings Inc.
40. Covanta SIGC Geothermal Operations, Inc.
41. Covanta Stanislaus, Inc.
42. Covanta Systems, Inc.
43. Covanta Waste Solutions, Inc.
44. Covanta Waste to Energy of Italy, Inc.
45. Covanta Waste to Energy, Inc.
46. Covanta Secure Services USA, Inc.
47. Covanta Secure Services, Inc.
48. Covanta Water Holdings, Inc.
49. Covanta Water Systems, Inc.
50. Covanta Water Treatment Services, Inc.
51. DSS Environmental, Inc.
52. Haverhill Power, Inc.
53. Covanta Honolulu Resource Recovery Venture
54. LMI, Inc.
55. Michigan Waste Energy, Inc.
56. Covanta New Martinsville Hydro-Operations Corporation
57. OFS Equity of Alexandria/Arlington, Inc.
58. OFS Equity of Babylon, Inc.
59. OFS Equity of Delaware, Inc.
60. OFS Equity of Huntington, Inc.
61. OFS Equity of Indianapolis, Inc.
62. OFS Equity of Stanislaus, Inc.
63. Covanta Engineering Services, Inc.
64. Xxxxx Environmental & Energy Services Co., Inc.
65. Covanta Hydro Operations, Inc.
66. Xxxxx Management Services, Inc.
67. Covanta Xxxxxx Land Corp.
68. Covanta Operations of Union LLC
69. Covanta Alexandria/Arlington, Inc.
70. Covanta Bristol, Inc.
71. Covanta Fairfax, Inc.
72. Covanta Hillsborough, Inc.
73. Covanta Huntsville, Inc.
74. Covanta Kent, Inc.
75. Covanta Lancaster, Inc.
76. Covanta Xxx, Inc.
77. Covanta Xxxxxx, Inc.
78. Covanta Xxxxxxxxxx, Inc.
79. Covanta Northwest Puerto Rico, Inc.
80. Covanta Pasco, Inc.
81. Covanta Plant Services of New Jersey, Inc.
82. Covanta Projects of Hawaii, Inc.
83. Xxxxx Services Corporation
84. Covanta Wallingford Associates, Inc.
85. Covanta Key Largo, Inc.
86. Covanta Tampa Bay, Inc.
87. Covanta Equity of Alexandria/Arlington, Inc.
88. OPI Quezon Inc.
89. Covanta OPW Associates, Inc.
90. Covanta Mid-Conn., Inc.
91. Three Mountain Operations, Inc.
92. The Metropolitan Entertainment Co., Inc.
93. J.R. Jacks Construction Corporation
94. Xxxxx Constructors, Inc.
95. Covanta Huntington, Inc.
Schedule B
1. LaGuardia Fuel Facilities Corporation
2. Lenzar Electro-Optics, Inc.
3. Newark Automotive Fuel Facilities Corporation
4. Xxxxx Allied Maintenance Corporation
5. Xxxxx Allied Payroll Services, Inc.
6. Xxxxx Attractions, Inc.
7. Xxxxx Aviation Distributing Corporation
8. Xxxxx Aviation Fueling Company of Virginia, Inc.
9. Xxxxx Aviation Service Company of Colorado, Inc.
10. Xxxxx Aviation Service Company of New Jersey, Inc.
11. Xxxxx Aviation Service Company of New York, Inc.
12. Xxxxx Aviation Service Company of Pennsylvania, Inc.
13. Xxxxx Aviation Service International Corporation
14. Xxxxx Aviation, Inc.
15. Xxxxx Cargo Spain, Inc.
16. Xxxxx Central and South America, Inc.
17. Xxxxx Facility Holdings, Inc.
18. Xxxxx Film and Theatre, Inc.
19. Xxxxx Firehole Entertainment Corp.
20. Xxxxx International Europe, Inc.
21. Xxxxx New York Services, Inc.
22. Philadelphia Fuel Facilities Corporation
23. PA Aviation Fuel Holdings, Inc.
