Exhibit 10.1
Dated as of July 5, 2006
among
as Borrower,
COMERICA BANK,
as Administrative Agent and Collateral Agent,
and
THE LENDERS PARTY HERETO
Revolving Credit Facility
(with Swing Line Facility and Letter of Credit Facility)
TABLE OF CONTENTS
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Page |
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ARTICLE I Definitions and Accounting Matters |
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1 |
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Section 1.01 Certain Defined Terms |
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1 |
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Section 1.02 Terms Generally |
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22 |
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Section 1.03 Accounting Terms and Determinations |
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22 |
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ARTICLE II Commitments |
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22 |
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Section 2.01 Loans and Letters of Credit |
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22 |
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(a) Revolving Credit Loans |
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22 |
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(b) Swing Line Loans |
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23 |
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(c) Letters of Credit |
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25 |
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(d) Limitation on Types of Loans |
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25 |
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Section 2.02 Borrowings, Continuations and Conversions, Letters of Credit |
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26 |
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(a) Borrowings |
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26 |
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(b) Minimum Amounts |
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26 |
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(c) Notices |
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26 |
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(d) Continuation Options |
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26 |
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(e) Conversion Options |
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26 |
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(f) Advances |
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27 |
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(g) Letters of Credit |
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27 |
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Section 2.03 Changes of Aggregate Revolving Credit Commitments |
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28 |
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Section 2.04 Increase in Aggregate Revolving Credit Commitments |
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28 |
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Section 2.05 Fees |
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30 |
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(a) Commitment Fee |
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30 |
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(b) Letter of Credit Fees |
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31 |
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Section 2.06 Several Obligations |
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31 |
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Section 2.07 Evidence of Debt |
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32 |
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Section 2.08 Prepayments |
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32 |
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(a) Voluntary Prepayments |
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32 |
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(b) Mandatory Prepayments |
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33 |
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(i) Revolving Credit Commitment Reductions |
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33 |
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(ii) Upon Transfers and Issuances of Equity |
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33 |
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i
TABLE OF CONTENTS
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(iii) Generally |
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33 |
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(iv) Transfers of Non-Core Assets |
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34 |
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Section 2.09 Assumption of Risks |
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34 |
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Section 2.10 Obligation to Reimburse and to Prepay |
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34 |
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Section 2.11 Lending Offices |
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36 |
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ARTICLE III Payments of Principal and Interest |
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36 |
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Section 3.01 Repayment of Loans |
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36 |
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(a) Revolving Credit Loans |
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36 |
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(b) Swing Line Loans |
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36 |
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Section 3.02 Interest |
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37 |
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(a) Interest Rates |
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37 |
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(b) Post-Default Rate |
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37 |
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(c) Due Dates |
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37 |
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(d) Determination of Rates |
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37 |
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ARTICLE IV Payments; Pro Rata Treatment; Computations; Etc |
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38 |
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Section 4.01 Payments |
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38 |
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Section 4.02 Pro Rata Treatment |
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38 |
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Section 4.03 Computations |
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38 |
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Section 4.04 Non-receipt of Funds by the Administrative Agent |
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39 |
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(a) Funding by Lenders; Presumption by Administrative Agent |
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39 |
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(b) Payments by Borrower; Presumptions by Administrative Agent |
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39 |
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Section 4.05 Set-off, Sharing of Payments, Etc |
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39 |
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ARTICLE V Yield Protection |
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41 |
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Section 5.01 Increased Costs |
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41 |
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(a) Increased Costs Generally |
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41 |
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(b) Capital Requirements |
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41 |
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(c) Certificates for Xxxxxxxxxxxxx |
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00 |
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(x) Delay in Requests |
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42 |
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Section 5.02 Taxes |
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42 |
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(a) Payments Free of Taxes |
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42 |
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ii
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(b) Payment of Other Taxes by the Borrower |
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42 |
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(c) Indemnification by the Borrower |
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42 |
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(d) Evidence of Payments |
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43 |
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(e) Status of Lenders |
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43 |
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(f) Treatment of Certain Refunds |
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44 |
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Section 5.03 Mitigation Obligations; Replacement of Lenders |
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44 |
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(a) Designation of a Different Lending Office |
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44 |
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(b) Replacement of Lenders |
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44 |
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(c) Time Limited |
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45 |
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(d) Non Discriminatory Basis |
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45 |
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Section 5.04 Compensation |
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45 |
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ARTICLE VI Conditions Precedent |
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46 |
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Section 6.01 Initial Funding |
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46 |
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Section 6.02 Initial and Subsequent Loans and Letters of Credit |
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47 |
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Section 6.03 Conditions Precedent for the Benefit of Lenders |
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48 |
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Section 6.04 Determinations Under Section 6.01 |
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48 |
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Section 6.05 No Waiver |
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48 |
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ARTICLE VII Representations and Warranties |
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48 |
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Section 7.01 Corporate Existence |
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49 |
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Section 7.02 Financial Condition |
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49 |
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Section 7.03 Litigation |
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49 |
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Section 7.04 No Breach |
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49 |
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Section 7.05 Authority |
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50 |
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Section 7.06 Approvals |
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50 |
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Section 7.07 Use of Proceeds |
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50 |
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Section 7.08 ERISA |
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50 |
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Section 7.09 Taxes |
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51 |
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Section 7.10 Titles, etc |
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52 |
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Section 7.11 No Material Misstatements |
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52 |
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Section 7.12 Investment Company Act |
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52 |
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iii
TABLE OF CONTENTS
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Section 7.13 Public Utility Holding Company Act |
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52 |
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Section 7.14 Subsidiaries |
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53 |
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Section 7.15 Location of Business and Offices |
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53 |
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Section 7.16 Defaults |
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53 |
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Section 7.17 Environmental Matters |
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53 |
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Section 7.18 Compliance with the Law |
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54 |
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Section 7.19 Insurance |
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55 |
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Section 7.20 Restriction on Liens |
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55 |
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Section 7.21 Material Agreements |
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55 |
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ARTICLE VIII Affirmative Covenants |
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56 |
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Section 8.01 Reporting Requirements |
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56 |
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(a) Annual Financial Statements of Borrower |
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56 |
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(b) Annual Financial Statements of Borrower |
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56 |
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(c) Quarterly Financial Statements |
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56 |
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(d) Annual Projections |
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57 |
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(e) Notice of Default, Etc. |
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57 |
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(f) Other Accounting Reports |
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57 |
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(g) SEC Filings, Etc. |
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57 |
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(h) Notices Under Other Loan Agreements |
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57 |
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(i) Acquisition Target Financial Statements |
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57 |
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(j) Other Matters |
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58 |
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Section 8.02 Litigation |
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58 |
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Section 8.03 Maintenance, Etc |
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58 |
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(a) Generally |
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58 |
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(b) Proof of Insurance |
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59 |
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(c) Operation of Properties |
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59 |
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Section 8.04 Environmental Matters |
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59 |
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(a) Establishment of Procedures |
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59 |
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(b) Notice of Action |
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60 |
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(c) Future Acquisitions |
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60 |
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iv
TABLE OF CONTENTS
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Page |
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Section 8.05 Further Assurances |
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60 |
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Section 8.06 Performance of Obligations |
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60 |
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Section 8.07 ERISA Information and Compliance |
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60 |
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Section 8.08 Subsidiary Guarantors |
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61 |
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Section 8.09 Treasury Management System |
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61 |
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ARTICLE IX Negative Covenants |
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61 |
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Section 9.01 Debt |
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61 |
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Section 9.02 Liens |
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62 |
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Section 9.03 Investments |
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63 |
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Section 9.04 Dividends, Distributions and Redemptions; Etc |
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63 |
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Section 9.05 Sales and Leasebacks |
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63 |
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Section 9.06 Nature of Business; Amendments of Constitutive Documents |
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64 |
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Section 9.07 Limitation on Leases |
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64 |
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Section 9.08 Mergers, Etc |
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64 |
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Section 9.09 Proceeds of Loans; Letters of Credit |
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64 |
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Section 9.10 ERISA Compliance |
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64 |
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Section 9.11 Sale or Discount of Receivables |
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65 |
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Section 9.12 Leverage Ratio |
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65 |
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Section 9.13 Net Worth |
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66 |
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Section 9.14 Senior Secured Funded Debt Leverage Ratio |
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66 |
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Section 9.15 Adjusted EBIT Debt Service Ratio |
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66 |
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Section 9.16 Capital Expenditures |
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66 |
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Section 9.17 Sale of Properties |
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66 |
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Section 9.18 Environmental Matters |
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67 |
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Section 9.19 Transactions with Affiliates |
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67 |
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Section 9.20 Subsidiaries |
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67 |
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Section 9.21 Negative Pledge Agreements |
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67 |
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Section 9.22 Prepayments of Debt; Amendment of Documents |
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67 |
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ARTICLE X Events of Default; Remedies |
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68 |
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Section 10.01 Events of Default |
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68 |
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v
TABLE OF CONTENTS
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Section 10.02 Remedies |
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70 |
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ARTICLE XI The Agent |
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71 |
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Section 11.01 Appointment and Authority |
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71 |
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Section 11.02 Rights as a Lender |
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71 |
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Section 11.03 Exculpatory Provisions |
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71 |
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Section 11.04 Reliance by any Agent |
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72 |
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Section 11.05 Delegation of Duties |
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72 |
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Section 11.06 Resignation of an Agent |
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73 |
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Section 11.07 Non-Reliance on Agent and Other Lenders |
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73 |
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Section 11.08 No Other Duties, etc |
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73 |
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Section 11.09 Issuing Bank as Agent |
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74 |
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Section 11.10 Collateral and Guaranty Matters |
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74 |
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Section 11.11 Indemnification |
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74 |
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ARTICLE XII Miscellaneous |
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75 |
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Section 12.01 Waiver |
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75 |
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Section 12.02 Notices |
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75 |
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(a) Notices Generally |
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75 |
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(b) Electronic Communications |
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75 |
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(c) Change of Address, Etc |
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77 |
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Section 12.03 Payment of Expenses, Indemnities, etc |
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77 |
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Section 12.04 Amendments, Etc |
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79 |
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Section 12.05 Successors and Assigns |
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80 |
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(a) Successors and Assigns Generally |
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80 |
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(b) Assignments by Lenders |
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80 |
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(c) Register |
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81 |
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(d) Participations |
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81 |
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(e) Limitations upon Participant Rights |
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82 |
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(f) Certain Pledges |
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82 |
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(g) Dissenting Lenders |
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82 |
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Section 12.06 Invalidity |
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83 |
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vi
TABLE OF CONTENTS
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Section 12.07 Counterparts, etc |
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83 |
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(a) Counterparts; Integration; Effectiveness |
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83 |
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(b) Electronic Execution of Assignments |
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83 |
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Section 12.08 Survival |
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83 |
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Section 12.09 Captions |
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84 |
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Section 12.10 Governing Law; Submission to Jurisdiction |
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84 |
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(a) Governing Law |
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84 |
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(b) Submission to Jurisdiction |
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84 |
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(c) Waiver of Venue |
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84 |
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(d) Service of Process |
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84 |
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Section 12.11 Interest Rate Limitation |
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84 |
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Section 12.12 WAIVER OF JURY TRIAL |
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85 |
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Section 12.13 Right of Setoff |
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85 |
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Section 12.14 Confidentiality |
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85 |
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Section 12.15 Exculpation Provisions |
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86 |
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Section 12.16 USA Patriot Act Notice |
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87 |
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Section 12.17 Release |
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87 |
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vii
TABLE OF CONTENTS
(Continued)
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Annex: |
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I
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-
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List of Percentage Shares and Aggregate Revolving Credit Commitments |
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Schedules: |
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1.1
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-
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Existing LCs |
7.02
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-
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Financial Condition |
7.03
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Litigation |
7.10
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Titles, Etc. |
7.14
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Subsidiaries |
7.17
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-
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Environmental Matters |
7.19
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-
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Insurance |
7.21
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-
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Material Agreements |
9.01
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-
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Debt |
9.02
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Liens |
9.03
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-
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Investments |
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Exhibits: |
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A
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-
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Form of Compliance Certificate |
B
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Form of Borrowing, Continuation and Conversion Request |
C
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Form of Commitment and Acceptance |
D
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Form of Note |
E
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Closing Checklist |
F
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-
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Form of Assignment and Assumption |
viii
THIS REVOLVING CREDIT AGREEMENT dated as of July 5, 2006, is among
WCA WASTE CORPORATION, a
Delaware corporation (the “
Borrower”); each of the lenders that is a party hereto or which
becomes a party hereto as provided in
Section 12.05 (individually, together with its
successors and assigns, a “
Lender” and, collectively, the “
Lenders”); and
COMERICA
BANK, a
Michigan banking corporation (in its individual capacity, “Comerica”), as administrative
agent and collateral agent hereunder in such capacity (in such capacity, together with its
successors in such capacity, the “
Administrative Agent” and the “
Collateral Agent”
and the “
Agent”).
R E C I T A L S
A. The Borrower’s wholly-owned subsidiary WCA Waste Systems, Inc., a Delaware corporation
(“WCA Waste Systems”), Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”) as “Administrative
Agent” and “Collateral Agent” and certain banks and other financial institutions entered into that
certain First Lien Credit Agreement dated as of April 28, 2005 (as the same has been amended,
modified and supplemented, the “Existing Credit Agreement”) pursuant to which Xxxxx Fargo
and certain banks and other financial institutions made certain credit facilities available to WCA
Waste Systems (“Existing Credit Facility”).
B. The Borrower and certain subsidiaries of Borrower and WCA Waste Systems, guaranteed payment
of the Existing Credit Facility and, together with WCA Waste Systems, granted to Xxxxx Fargo, as
“Collateral Agent”, security interests and other liens on substantially all of their respective
assets as security for the Existing Credit Facility.
C. The Borrower desires to refinance the Existing Credit Facility with Administrative Agent
and the Lenders to replace WCA Waste Systems as the Borrower in accordance with the terms and
conditions of this Agreement, including without limitation, replacement or amendment and
continuation of the guarantees and collateral security provided pursuant to the Existing Credit
Agreement.
D. The Borrower has requested and the Administrative Agent and the Lenders have agreed to
refinance indebtedness under the Existing Credit Facility and to amend and restate the Existing
Credit Agreement upon the terms and conditions hereinafter set forth.
E. In consideration of the mutual covenants and agreements herein contained and of the loans,
extensions of credit and commitments hereinafter referred to, the parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Certain Defined Terms. As used herein, the following terms shall have
the following meanings (all terms defined in this Article I or in other provisions of this
Agreement in the singular to have equivalent meanings when used in the plural and vice versa):
“Acquired Business” is defined in the definition of Prior Acquisition Add-Back.
First Lien Credit Agreement
“Acquired Subsidiary” is defined in the definition of Prior Acquisition Add-Back.
“Act” is defined in Section 12.16.
“Additional Volume” means the waste collected by an Acquired Subsidiary or Acquired
Business that (a) prior to the consummation of the acquisition of such Acquired Subsidiary or
Acquired Business, was not being delivered to a landfill or transfer station owned or operated by
the Borrower or any Consolidated Subsidiary, and (b) subsequent to the consummation of the
acquisition of such Acquired Subsidiary or Acquired Business, is delivered to a landfill or
transfer station owned or operated by the Borrower or any Consolidated Subsidiary.
“Adjusted EBIT” means, for any period, the sum of (a) EBIT for such period,
plus (b) non-cash charges for accretion on closure and post-closure obligations,
plus (c) non-cash charges associated with the disposal contract between Waste Management,
Inc. and WCA Waste Systems, plus (d) non-cash charges (or minus non-cash benefits,
if applicable) reflecting the adoption of SFAS No. 123 (and all amendments thereto), plus
(e) all non-cash charges related to restricted stock and redeemable stock interests granted to
officers, directors and employees, plus (f) non-cash expense (or minus non-cash
income, if applicable) associated with FAS 133 treatment of any Hedging Agreements, plus
(g) non-cash losses on asset sales in an aggregate amount not to exceed $500,000.
“Adjusted EBIT Debt Service Ratio” means, with respect to the Borrower and its
Consolidated Subsidiaries, the ratio of (i) Adjusted EBIT for the four fiscal quarters ending on
such date to (ii) cash interest expense, plus (x) the current portion of capitalized leases
for the following four fiscal quarters, plus (y) the current portion of principal payments
of Debt, excluding payments made on the Revolving Credit Loans and prepaid insurance premiums,
required to be paid for the following four fiscal quarters.
“Administrative Agent” is defined in the preamble.
“Administrative Questionnaire” means an administrative questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” of any Person means (a) any Person directly or indirectly controlled by,
controlling or under common control with such first Person, (b) any director or executive officer
of such first Person or of any Person referred to in clause (a) above and (c) if any Person
in clause (a) above is an individual, any member of the immediate family (including
parents, spouse and children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is controlled by any
such member or trust. For purposes of this definition, any Person which owns directly or
indirectly 10% or more of the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 10% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner of such other Person) will be deemed
to “control” (including, with its correlative meanings, “controlled by” and
“under common control with”) such corporation or other Person.
“Agent” is defined in the preamble.
“Aggregate Revolving Credit Commitments” at any time equals the sum of the Revolving
Credit Commitments of the Lenders, as the same may be reduced pursuant to Section 2.03(b)
or Section 10.02(a) or increased pursuant to Section 2.04. The Aggregate Revolving
Credit Commitments on the Closing Date shall be $100,000,000.
“
Agreement” means this
Revolving Credit Agreement, as the same may from time to time
be amended, restated, supplemented or modified.
“Applicable Lending Office” means, for each Lender and for each Type of Loan, the
lending office of such Lender (or an Affiliate of such Lender) designated for such Type of Loan on
the signature pages hereof or such other offices of such Lender (or of an Affiliate of such Lender)
as such Lender may from time to time specify to the Administrative Agent and the Borrower as the
office by which its Loans of such Type are to be made and maintained.
“Applicable Margin” means, on any day, the applicable per annum percentage set forth
at the appropriate intersection in the table shown below, based on the Leverage Ratio on the most
recent Determination Date:
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Letter of |
Level |
|
Leverage Ratio |
|
Base Rate Loan |
|
LIBOR Loan |
|
Credit Fees |
I |
|
<3.00:1.00 |
|
|
.0 |
% |
|
|
1.50 |
% |
|
|
1.50 |
% |
II |
|
³ 3.00:1.00 and <3.50:1.00 |
|
|
.25 |
% |
|
|
1.75 |
% |
|
|
1.75 |
% |
III |
|
³ 3.50:1.00 and <4.00:1.00 |
|
|
.50 |
% |
|
|
2.00 |
% |
|
|
2.00 |
% |
IV |
|
³ 4.00:1.00 and <4.50:1.00 |
|
|
.75 |
% |
|
|
2.25 |
% |
|
|
2.25 |
% |
V |
|
³4.50:1.00 |
|
|
1.00 |
% |
|
|
2.50 |
% |
|
|
2.50 |
% |
The Applicable Margin shall be established as of the last day of each fiscal quarter of the
Borrower (each, a “Determination Date”) beginning with the receipt by the Administrative
Agent of the Compliance Certificate and the financial statements for the fiscal quarter ended
September 30, 2006 (the “Initial Determination Date”). Any change in the Applicable Margin
following each Determination Date shall be determined based upon the information and computations
set forth in the financial statements and Compliance Certificate furnished to the Administrative
Agent pursuant to Section 8.01, subject to review and approval of such computations by the
Administrative Agent. Each change in the Applicable Margin shall be effective as of the first day
of the calendar month following each Determination Date (including, without limitation, in respect
of LIBOR Loans then outstanding notwithstanding that such change occurs during an Interest Period),
and shall remain in effect until the date that is the first day of the calendar month following the
next Determination Date for which a change in the Applicable Margin occurs; provided, however; if
the Borrower shall fail to deliver any required financial statements or Compliance Certificate
within the time period required by Section 8.01, the Applicable Margin shall be the highest
percentage amount stated for each Type of Loan as set forth in the above table for the period
beginning on the relevant Determination Date and ending on the date that the appropriate financial
statements and Compliance Certificate are so delivered. Notwithstanding the foregoing, Level II
Applicable Margins shall be in effect hereunder until the
determination thereof based upon Borrowers’ financial statements for the fiscal quarter ending
September 30, 2006, unless (prior to such date) Borrower’s June 30, 2006 financial statements
demonstrate a consolidated Total Leverage Ratio greater than 3.50:1.00, in which case, the
Applicable Margin indicated in the table above with respect to the corresponding pricing level
shall apply; provided that so long as Borrower has received the $150,000,000 in proceeds from the
Senior Unsecured Debt and the equity offering from Ares (in such amount as is contributed) on or
before July 31, 2006, such amounts shall be included in Borrower’s June 30, 2006 financial
statements.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
“Ares” means Ares Corporate Opportunities Fund II, L.P.
“Assignment” is defined in Section 12.05(b)(i).
“Base Rate” means, with respect to any Base Rate Loan, for any day, the higher of (a)
the Federal Funds Rate for any such day plus 1/2 of 1% or (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 Loans” means Loans that bear interest at rates based upon the Base Rate.
“Borrower” is defined in the preamble.
“
Business Day” means any day other than a day on which commercial banks are authorized
or required to close in the States of
Michigan and Texas and, where such term is used in the
definition of “Quarterly Date” or if such day relates to a borrowing or continuation of, a payment
or prepayment of principal of or interest on, or a conversion of or into, or the Interest Period
for, a LIBOR Loan or a notice by the Borrower with respect to any such borrowing or continuation,
payment, prepayment, conversion or Interest Period, any day which is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
“Capital Expenditures” means, without duplication, any expenditures for any purchase
or other acquisition of any asset which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any Governmental Requirement, (b) any change in any
Governmental Requirement or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
“Change of Control” means, with respect to any Person, an event or series of events by
which:
(a) with respect to Borrower, any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding Ares, its
successors or assigns, as holder of the preferred stock or any common stock into which the
preferred stock is converted in the Borrower, now held by Ares, originally purchased
pursuant to the Preferred Stock Purchase Agreement referenced in Section 6.01(k),
any employee benefit plan of such person or its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire
(such right, an “option right”), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 35% or more of the equity
securities of Borrower entitled to vote for members of the board of directors or equivalent
governing body of Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right);
or
(b) with respect to Borrower, during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing body of Borrower cease
to be composed of individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in clauses
(i) and (ii) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors); or
(c) the Borrower shall fail beneficially to own, directly or indirectly, 100% of the
outstanding Equity Interests of Holdings on a fully-diluted basis except as permitted in
Section 9.17; or
(d) Holdings shall fail beneficially to own, directly or indirectly, 100% of the
outstanding Equity Interests of the WCA Waste Systems on a fully-diluted basis; or
(e) WCA Waste Systems shall fail to own, directly or indirectly, 100% of the
outstanding Equity Interests of the Guarantors (excluding Holdings) on a fully-diluted
basis.
“Charges” is defined in Section 12.11.
“Closing Date” means the date on which the conditions specified in Section
6.01 are satisfied.
“Closure/Post-Closure Letters of Credit” means letters of credit, surety bonds or
other instruments of similar character, the purpose of which is to provide financial assurance to
the various state agencies for closure and post-closure obligations for the landfills and transfer
stations owned or operated by the Borrower and its Subsidiaries. For purposes of this definition,
“Financial assurance,” “closure” and “post-closure” shall have the meanings set forth in the
administrative code or other comparable regulations of each state in which such landfill and
transfer station is located.
“Code” means the Internal Revenue Code of 1986, as amended from time to time and any
successor statute.
“Collateral Agent” is defined in the preamble.
“Comerica” is defined in the preamble.
“Commitment” means for any Lender, its Revolving Credit Commitment, Swing Line
Commitment (with respect to the Swing Line Lender only), as applicable.
“Commitment and Acceptance” is defined in Section 2.04(a).
“Communications” is defined in Section 12.02(b)(iii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit
A as executed by a Responsible Officer.
“Consolidated Net Income” means with respect to the Borrower and its Consolidated
Subsidiaries, for any period, the aggregate of the net income (or loss) of the Borrower and its
Consolidated Subsidiaries from operations after allowances for taxes for such period, determined on
a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net
income (to the extent otherwise included therein) the following: (a) the net income of any Person
in which the Borrower or any Consolidated Subsidiary has an interest (which interest does not cause
the net income of such other Person to be consolidated with the net income of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP), except to the extent of the amount of dividends
or distributions actually paid in such period by such other Person to the Borrower or to a
Consolidated Subsidiary, as the case may be; (b) the net income (but not loss) of any Consolidated
Subsidiary to the extent that the declaration or payment of dividends or similar distributions or
transfers or loans by that Consolidated Subsidiary is not at the time permitted by operation of the
terms of its charter or any agreement, instrument or Governmental Requirement applicable to such
Consolidated Subsidiary, or is otherwise restricted or prohibited in each case determined in
accordance with GAAP; (c) the net income (or loss) of any Person acquired in a pooling-of-interests
transaction for any period prior to the date of such transaction; (d) any extraordinary gains or
losses, including gains or losses attributable to Property sales not in the ordinary course of
business; and (e) the cumulative effect of a change in accounting principles and any gains or
losses attributable to write-ups or write downs of assets.
“Consolidated Subsidiaries” means each Subsidiary of a Person (whether now existing or
hereafter created or acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with GAAP. Unless
otherwise expressly stated, each reference to the term “Consolidated Subsidiary” shall mean a
Subsidiary consolidated with the Borrower.
“Debt” means, for any Person the sum of the following (without duplication): (a) all
obligations of such Person for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments (including principal, interest, fees and charges, in each case accrued but
unpaid); (b) all obligations of such Person (whether contingent or otherwise) in respect of
bankers’ acceptances, letters of credit, surety or other bonds and similar instruments; (c) all
obligations of such Person to pay, in accordance with GAAP, the deferred purchase price of Property
or services (other than for borrowed money), including securities repurchase agreements; (d) all
obligations under leases which shall have been, or should have been, in accordance with GAAP,
recorded as capital leases in respect of which such Person is liable (whether contingent or
otherwise); (e) all monetary obligations under (i) a so-called synthetic, off-balance sheet or tax
retention lease, or (ii) an agreement for the use or possession of property creating obligations
that do not appear in the balance sheet of such Person but which, upon the insolvency or bankruptcy
of such Person, would be characterized as the indebtedness of such Person (without regard to
accounting treatment); (f) all Debt (as described in the other clauses of this definition) and
other obligations of others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person; (g) all Debt (as described in the other clauses of this definition) and
other obligations of others guaranteed by such Person or in which such Person otherwise assures a
creditor against loss of the debtor or obligations of others; (h) all obligations or undertakings
of such Person to maintain or cause to be maintained the financial position or covenants of others
or to purchase the Debt or Property of others; (i) obligations to deliver goods or services in
consideration of advance payments, excluding prevails of customer accounts in the ordinary course
of business as customary in the business of the Borrower and its Subsidiaries; (j) obligations to
pay for goods or services whether or not such goods or services are actually received or utilized
by such Person including, without limitation, short term obligations to pay for insurance premiums;
(k) any obligation to purchase, redeem, retire or otherwise acquire for value any shares of capital
stock of such Person, any warrants, options or other rights to acquire any such shares or any other
rights measured by the value of such shares, warrants, options or other rights; (l) any Debt of a
Special Entity for which such Person is liable either by agreement or because of a Governmental
Requirement; (m) all obligations of such Person under Hedging Agreements; (n) all obligations of
such Person under Equipment Leases; and (o) all earn–out obligations of such Person payable to a
seller and incurred in connection with an Expansion Expenditure, which obligations are deemed
accrued in accordance with GAAP.
“Default” means an Event of Default or an event which with notice or lapse of time or
both would become an Event of Default.
“Determination Date” is defined in the definition of Applicable Margin.
“Dissenting Lender” is defined in Section 12.05(g).
“Dollars” and “$” means lawful money of the United States of America.
“EBIT” means, for any period, the sum of Consolidated Net Income for such period,
plus the following expenses or charges to the extent deducted from Consolidated Net Income
in such period: interest and taxes.
“EBITDA” means, for any period, the sum of Consolidated Net Income for such period
plus the following expenses or charges to the extent deducted from Consolidated Net Income
in such period: interest, taxes, depreciation and amortization.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by the Administrative Agent,
the Issuing Bank and the Swing Line Lender, such approvals not to be unreasonably withheld;
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.
“Environmental Laws” means any and all Governmental Requirements pertaining to health
or the environment in effect in any and all jurisdictions in which the Borrower or any Subsidiary
is conducting or at any time has conducted business, or where any Property of the Borrower or any
Subsidiary is located, including without limitation, the Oil Pollution Act of 1990 (“OPA”),
the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and
Liability Act of 1980 (“CERCLA”), as amended, the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and
Recovery Act of 1976 (“RCRA”), as amended, the Safe Drinking Water Act, as amended, the
Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986,
as amended, the Hazardous Materials Transportation Act, as amended, and other environmental
conservation or protection laws. The term “oil” shall have the meaning specified in OPA,
the terms “hazardous substance” and “release” (or “threatened release”)
have the meanings specified in CERCLA, and the terms “solid waste” and “disposal”
(or “disposed”) have the meanings specified in RCRA; provided, however, that (a) in the
event either OPA, CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply subsequent to the effective date of such amendment and
(b) to the extent the laws of the state in which any Property of the Borrower or any Subsidiary is
located establish a meaning for “oil,” “hazardous substance,” “release,”
“solid waste” or “disposal” which is broader than that specified in either OPA,
CERCLA or RCRA, such broader meaning shall apply.
“EPA” means the United States Environmental Protection Agency and any successor
Governmental Authority.
“Equipment Leases” means operating leases for equipment or vehicles having a term
longer than 120 days and an aggregate value of more than $250,000.
“Equity Interests” means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other interests), and
other
ownership or profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise existing on any date of
determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time and any successor statute.
“ERISA Affiliate” means each trade or business (whether or not incorporated) which
together with the Borrower or any Subsidiary would be deemed to be a “single employer” within the
meaning of Section 4001(b)(1) of ERISA or subsections (b) or (c) of Section 414 of the Code.
“ERISA Event” means (a) a “Reportable Event” described in Section 4043 of ERISA and
the regulations issued thereunder, unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, (b) the withdrawal of the Borrower or any ERISA Affiliate from a Plan
during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA and immediately after such withdrawal the Plan has nonforfeitable benefits which are not
fully funded, (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, (d) the institution of proceedings to
terminate a Plan by the PBGC or (e) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan.
“Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
“Event of Default” is defined in Section 10.01.
“Excepted Liens” means: (a) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good faith by appropriate action and
for which adequate reserves have been maintained; (b) Liens in connection with workmen’s
compensation, unemployment insurance or other social security, old age pension or public liability
obligations not yet due or which are being contested in good faith by appropriate action and for
which adequate reserves have been maintained in accordance with GAAP; (c) operators’, vendors’,
carriers’, warehousemen’s, repairmen’s, mechanics’, workmen’s, materialmen’s, construction or other
like Liens arising by operation of law in the ordinary course of business or statutory landlord’s
liens, each of which is in respect of obligations that have not been outstanding more than 90 days
or which are being contested in good faith by appropriate proceedings and for which adequate
reserves have been maintained in accordance with GAAP; (d) any Liens reserved in (i) that certain
Royalty Agreement dated May 2, 1996 between Central Missouri Landfill, Inc. and Xxxx Xxxxxx for
royalty obligations and (ii) leases for rent and for compliance with the terms of such leases, to
the extent that any such Lien referred to in this clause (d) does not materially impair the
use of the Property covered by such Lien for the purposes for which such Property is held by the
Borrower or any Subsidiary or materially impair the value of such Property subject thereto; (e)
encumbrances (other than to secure the payment of borrowed money or the deferred purchase price of
Property or services), easements, restrictions,
Revolving Credit Agreement – Page 9
servitudes, permits, conditions, covenants, exceptions or reservations in any rights of way or
other Property of the Borrower or any Subsidiary for the purpose of roads, pipelines, transmission
lines, transportation lines, distribution lines for the removal of gas, oil, coal or other minerals
or timber, and other like purposes, or for the joint or common use of real estate, rights of way,
facilities and equipment, and defects, irregularities, zoning restrictions and deficiencies in
title of any rights of way or other Property which in the aggregate do not materially impair the
use of such rights of way or other Property for the purposes of which such rights of way and other
Property are held by the Borrower or any Subsidiary or materially impair the value of such Property
subject thereto; (f) deposits of cash or securities to secure the performance of bids, trade
contracts, leases, permits, surety bonds, appeal bonds, statutory obligations and other obligations
of a like nature incurred in the ordinary course of business; (g) Liens permitted by the Loan
Documents; (h) reservations, covenants, conditions, restrictions and other Liens that arise or are
imposed in connection with host community fee agreements of a type customary in Borrower’s or any
Subsidiary’s business; and (i) Liens securing judgments for the payment of money not constituting
an Event of Default or securing appeal or other surety bonds related to such judgments.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its Applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 5.03(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office)
or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 5.02(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 5.02(a).
“Existing Credit Agreement” is defined in the Recitals.
“Existing LCs” means those letters of credit described on Schedule 1.1 issued pursuant
to the Existing Credit Agreement.
“Expansion Expenditure” means an expenditure made in connection with or in furtherance
of building a new transfer station, starting a new hauling company, opening an inactive landfill,
new municipal contracts that require additional equipment or other property, or the acquisition of
a Person engaged in a similar line of business as the Borrower and its Subsidiaries, or other
growth and productivity capital expenditures included within the Borrower’s business plan so long
as (a) no Default exists or would exist after giving effect to such expenditure (including without
limitation, no Default would exist under Sections 9.12 through and including 9.16
after giving effect to such expenditure), (b) the Administrative Agent
Revolving Credit Agreement – Page 10
receives and satisfactorily review the due diligence package related to such expenditure, and
(c) if (i) any such Expansion Expenditure exceeds $20,000,000 and (ii) is funded by Borrower
requesting a Revolving Credit Loan in connection therewith, same is approved by the Required
Lenders; and “Expansion Expenditures” shall mean all such expenditures; provided that Borrower
shall be required to deliver to the Administrative Agent a due diligence package related to such
expenditure if such expenditure is either funded by cash or by Borrower requesting a Revolving Loan
in connection therewith.
“Federal Funds Rate” means, 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 a member 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 date 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 day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
“Fee Letter” means that certain letter agreement from Comerica to the Borrower dated
June 8, 2006 concerning certain fees in connection with this Agreement and any agreements or
instruments executed in connection therewith.
“Financial Statements” means the financial statement or statements of (a) the Borrower
described or referred to in the first sentence of Section 7.02 and (b) the Borrower and its
Consolidated Subsidiaries described or referred to in the second sentence of Section 7.02.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
“Funded Debt” means, collectively, without duplication, whether classified as Debt, an
investment or otherwise on a Person’s consolidated balance sheet, (a) all Debt described in
clauses (a), (b), (d) , (e) and (o) of the definition of
“Debt”, but excluding Closure/Post-Closure Letters of Credit, and (b) all guaranties and other
surety obligations of the Funded Debt of others; provided, however, that, all obligations in
respect of surety bonds and similar instruments of the nature and for the purposes described in
Schedule 7.02, item 1 are not included as Funded Debt, and without duplication,
Funded Debt shall be reduced by the amount of cash to the extent such cash is greater than
$1,000,000 and is maintained by the Borrower or any Guarantor.
“GAAP” means generally accepted accounting principles in the United States of America
in effect from time to time.
Revolving Credit Agreement – Page 11
“Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).
“Governmental Requirement” means any law, statute, code, ordinance, order,
determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate,
license, authorization or other directive or requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy regulations and occupational, safety and
health standards or controls, of any Governmental Authority.
“Guarantor” means Holdings, WCA Waste Systems and each of the Subsidiaries of WCA
Waste Systems now or hereafter in existence.
“Guaranty Agreement” means that certain Guaranty Agreement dated as of the Closing
Date by and among the Guarantors and the Administrative Agent.
“Hedging Agreements” means any forward contract, futures contract, swap, cap, floor,
collar, option or other financing agreement or arrangement, the value of which is dependent upon
interest rates, currency exchange rates, commodities or other indices.
“Holdings” means WCA Holdings Corporation, a Delaware corporation, and the parent of
WCA Waste Systems.
“Increase Date” is defined in Section 2.04(b).
“Increased Use” means, with respect to an Acquired Business or Acquired Subsidiary,
for the applicable period of determination, waste disposed of in its landfill in excess of
Internalized Waste.
“Increasing Lenders” is defined in Section 2.04(a).
“Indemnified Costs” is defined in Section 11.12.
“Indemnified Parties” is defined in Section 12.03(a)(ii).
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnity Matters” means any and all actions, suits, proceedings (including any
investigations, litigation or inquiries), claims, demands and causes of action made or threatened
against a Person and, in connection therewith, all losses, liabilities, damages (including, without
limitation, consequential damages) or reasonable costs and expenses of any kind or nature
whatsoever incurred by such Person whether caused by the sole or concurrent negligence of such
Person seeking indemnification.
“Information” is defined in Section 12.14(b).
Revolving Credit Agreement – Page 12
“Initial Determination Date” is defined in the definition of Applicable Margin.
“Initial Funding” means the funding of the initial Loans or issuance of the initial
Letters of Credit upon satisfaction of the conditions set forth in Sections 6.01 and
6.02.
“Interest Period” means, with respect to any LIBOR Loan, the period commencing on the
date such LIBOR Loan is made and ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Borrower may select as provided in Section
2.02 (or such longer period as may be requested by the Borrower and agreed to in writing by all
Lenders), except that each Interest Period which commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month.
Notwithstanding the foregoing: (a) no Interest Period may end after the Termination Date; (b)
no Interest Period for any LIBOR Loan may end after the due date of any installment, if any,
provided for in Section 3.01 to the extent that such LIBOR Loan would need to be prepaid
prior to the end of such Interest Period in order for such installment to be paid when due; (c)
each Interest Period which would otherwise end on a day which is not a Business Day shall end on
the next succeeding Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and (d) no Interest Period shall
have a duration of less than one month and, if the Interest Period for any LIBOR Loans would
otherwise be for a shorter period, such Loans shall not be available hereunder.
“Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Borrower’s internal controls over
financial reporting, in each case as described in the Securities Laws.
“Internalized Waste” means waste collected by the Borrower or an Affiliate that is
disposed of in a landfill (or other form of final disposal) owned or operated by an Acquired
Business or Acquired Subsidiary before consummation of its acquisition by the Borrower or a
Subsidiary.
“Investment” in any Person means any loan or advance to such Person, any purchase or
other acquisition of any Equity Interests or Debt or the assets comprising a division or business
unit or a substantial part or all of the business of such Person, any capital contribution to such
Person or any other direct or indirect investment in such Person.
“Issuing Bank” means Comerica or any other Lender or Affiliate of a Lender agreed to
between the Borrower and the Administrative Agent to issue Letters of Credit.
“LC Commitment” at any time means $50,000,000.
“LC Exposure” at any time means the difference between (a) the aggregate undrawn face
amount of all outstanding and uncancelled Letters of Credit plus the aggregate of all
amounts drawn under all Letters of Credit and not yet reimbursed (including by borrowings
hereunder), minus (b) the aggregate amount of all cash securing outstanding Letters of
Credit pursuant to Section 2.10(b).
Revolving Credit Agreement – Page 13
“Lender” and “Lenders” are defined in the preamble.
“Lender Party” and “Lender Parties” are defined in Section 11.12.
“Letter of Credit Agreements” means the written agreements with the Issuing Bank, as
issuing lender for any Letter of Credit, executed in connection with the issuance by the Issuing
Bank of the Letters of Credit, such agreements to be on the Issuing Bank’s customary form for
letters of credit of comparable amount and purpose as from time to time in effect or as otherwise
agreed to by the Borrower and the Issuing Bank.
“Letters of Credit” means the Existing LCs and the letters of credit issued pursuant
to Section 2.01(c) and all reimbursement obligations pertaining to any such letters of
credit, and “Letter of Credit” means any one of the Letters of Credit and the reimbursement
obligations pertaining thereto.
“Leverage Ratio” means, for Borrower and its Consolidated Subsidiaries, calculated as
of the end of each fiscal quarter the ratio of (a) Funded Debt at the end of such fiscal quarter
to (b) Pro Forma Adjusted EBITDA for the immediately preceding four fiscal quarters.
“LIBOR Loans” means Loans the interest rates on which are determined on the basis of
rates referred to in the definition of “LIBOR Rate”.
“LIBOR Rate” means, for any Interest Period for all LIBOR Loans, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a period equal to such Interest Period
(provided that, if for any reason such rate is not available, the term “LIBOR Rate” shall mean, for
any Interest Period for all LIBOR Loans, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates) by (b) a percentage equal to 100% minus the LIBOR Rate Reserve
Percentage for such Interest Period.
“LIBOR Rate Reserve Percentage” for any Interest Period for all LIBOR Loans means the
reserve percentage applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on LIBOR Loans is determined) having a term equal
to such Interest Period.
Revolving Credit Agreement – Page 14
“Lien” means any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on the common law,
statute or contract, and whether such obligation or claim is fixed or contingent, and including but
not limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or bailment for security
purposes. The term “Lien” shall include reservations, exceptions, encroachments,
easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions
and encumbrances affecting Property. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to be the owner of any Property which it has acquired or holds subject
to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person in a transaction
intended to create a financing.
“Loan Documents” means this Agreement, all Letters of Credit, all Letter of Credit
Agreements, the Guaranty Agreement, the Security Agreement, all deeds of trust and mortgages, and
any other agreements, instruments and documents executed by the Borrower or any of its
Subsidiaries.
“Loans” means the loans as provided for by Sections 2.01(a), (b) and (c).
“Loans” shall include Revolving Credit Loans and Swing Line Loans.
“Material Adverse Effect” means any set of circumstances or events that (a) has or
could reasonably be expected to have any material and adverse effect whatsoever upon, or result in
or reasonably be expected to result in a material adverse change in, (A) the assets, liabilities,
financial condition, business, operations or affairs of the Borrower and its Subsidiaries taken as
a whole different from those reflected in the Financial Statements or from the facts represented or
warranted in any Loan Document, or (B) the ability of the Borrower and its Subsidiaries taken as a
whole to carry out their business as at the Closing Date or as proposed as of the Closing Date to
be conducted or meet their obligations under the Loan Documents on a timely basis, (b) impairs
materially or could be reasonably expected to impair materially the ability of the Borrower and its
Subsidiaries to duly and punctually pay and perform their obligations under the Loan Documents or
(c) impairs materially or could reasonably be expected to impair materially the ability of the
Administrative Agent or any of the Lenders, to the extent permitted, to enforce its legal remedies
pursuant to the Loan Documents.
“Maximum Rate” is defined in Section 12.11.
“Multiemployer Plan” means a Plan defined as such in Section 4001(a)(3) of ERISA to
which the Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within the preceding six calendar years made or accrued an obligation to make
contributions.
“Net Worth” means, as at any date, the sum of the following for the Borrower and its
Consolidated Subsidiaries determined (without duplication) in accordance with GAAP:
(a) the amount of preferred stock and common stock at par plus the amount of surplus
of the Borrower, plus
Revolving Credit Agreement – Page 15
(b) the retained earnings (or, in the case of retained earnings deficit, minus the
amount of such deficit), minus
(c) the cost of treasury shares.
“New Lenders” means (a) an Affiliate of a Lender; (b) an Approved Fund; and (c) any
other Person (other than a natural person) approved by the Administrative Agent, the Issuing Bank,
the Swing Line Lender and the Borrower (such approval not to be unreasonably withheld) that,
immediately prior to its issuance of a Commitment pursuant to Section 2.04 was not a Lender
hereunder.
“Non-Core Asset” means real Property of the Borrower or any Guarantor which is not
used to (a) generate or produce any revenue, (b) generate or produce revenue in excess of a de
minimus amount or (c) generate revenue other than from a source or sources that are not a part of
the waste collection, transfer and disposal business.
“Obligations” means all indebtedness, obligations and liabilities of the Borrower to
any of the Lenders, any of their Affiliates, or the Administrative Agent, individually or
collectively, existing on the date of this Agreement or arising thereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured
or unsecured, arising or incurred under any Hedging Agreement with any Lender or any Affiliate of
any Lender, in connection with the deposit and/or cash management products and services provided by
Comerica or its Affiliates related to any deposit or other accounts of the Borrower or any of its
Subsidiaries, under this Agreement or any of the other Loan Documents or in respect of any of the
Loans made or reimbursement obligations incurred under this Agreement, Letters of Credit or other
instruments at any time evidencing any thereof, including interest accruing subsequent to the
filing of a petition or other action concerning bankruptcy or other similar proceedings, and all
renewals, extensions, increases, refinancings and replacements for the foregoing.
“Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
“Participant” is defined in Section 12.05(d).
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions.
“Percentage Share” means the percentage of the Aggregate Revolving Credit Commitments
to be provided by a Lender under this Agreement, as modified from time to time to reflect any
assignments permitted by Section 12.05(b).
“Person” means any individual, corporation, company, voluntary association,
partnership, joint venture, trust, unincorporated organization, Governmental Authority or any
agency, instrumentality or political subdivision thereof, or any other form of entity.
Revolving Credit Agreement – Page 16
“Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA,
which (a) is currently or hereafter sponsored, maintained or contributed to by the Borrower, an
ERISA Affiliate or (b) was at any time during the preceding six calendar years sponsored,
maintained or contributed to, by the Borrower or an ERISA Affiliate with respect to which the
Borrower, or an ERISA Affiliate could have liability under Title IV of ERISA in the event such plan
has been or were to be terminated.
“Platform” is defined in Section 12.02(b)(iii).
“Post-Default Rate” means, in respect of any principal of any Loan or any other amount
payable by the Borrower under this Agreement or any other Loan Document, a rate per annum during
the period commencing on the date of occurrence of an Event of Default until such amount is paid in
full or all Events of Default are cured or waived equal to 2% per annum above the Base Rate as in
effect from time to time plus the Applicable Margin (if any), but in no event to exceed the
Maximum Rate; provided, however, for a LIBOR Loan, the “Post-Default Rate” for such
principal shall be, for the period commencing on the date of occurrence of an Event of Default and
ending on the earlier to occur of the last day of the Interest Period therefor or the date all
Events of Default are cured or waived, 2% per annum above the interest rate for such LIBOR Loan as
provided in Section 3.02(a)(ii), but in no event to exceed the Maximum Rate.
“
Prime Rate” means the rate of interest from time to time announced publicly by
Comerica, in Detroit,
Michigan, as its prime rate. Such rate is set by Comerica as a general
reference rate of interest, taking into account such factors as Comerica may deem appropriate, it
being understood that many of Comerica’s commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any customer and that
Comerica may make various commercial or other loans at rates of interest having no relationship to
such rate. In addition, such rate is evidenced by the recording thereof after its announcement in
such internal publication or publications as Comerica may designate, and each change in the Prime
Rate will be effective on the day the change is announced within Comerica; provided however, such
rate shall be a rate of interest generally applied by Comerica to other loan transactions to the
extent such transactions include rates based in whole or in part on the Prime Rate.
“Principal Office” means the principal office of the Administrative Agent, presently
located at One Detroit Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
“Prior Acquisition Add-Back” means, for any period, the EBITDA for such period of any
assets or businesses acquired by the Borrower or any of its Consolidated Subsidiaries (the
“Acquired Business”) or a Consolidated Subsidiary acquired or formed since the beginning of
such period (the “Acquired Subsidiary”) so long as (a) the acquisition of the Acquired
Business or the Acquired Subsidiary satisfied the criteria of a Expansion Expenditure, (b) the
Borrower, the Acquired Subsidiary and the other Subsidiaries complied with requirements of
Section 8.08, (c) the Administrative Agent (i) received the audited annual consolidated and
consolidating financial statements for such Acquired Business or Acquired Subsidiary for the fiscal
year most recently ended, accompanied by the related opinion of a Registered Public Accounting Firm
acceptable to the Administrative Agent, which financial statements and opinion satisfied the
criteria set forth in Section 8.01(a), or (ii) if audited annual financial statements of
the Acquired
Revolving Credit Agreement – Page 17
Business or the Acquired Subsidiary were unavailable, received such financial statements and
other information (including the amount of EBITDA used in determining Pro Forma Adjusted EBITDA,
plus, for the purpose of computing Pro Forma Adjusted EBITDA, the effect of Additional
Volume and/or Increased Use, as applicable, and itemized direct cost savings that will be achieved
as a result of, or in connection with, the acquisition) requested by the Administrative Agent, in
form and substance satisfactory to the Administrative Agent, and (d) the Administrative Agent
received unaudited consolidated and consolidating financial statements (or other financial
information) of the Acquired Business or the Acquired Subsidiary for the fiscal quarter most
recently ended and for the portion of the fiscal year then ended, all calculations and reports as
described herein to be in form and substance reasonably satisfactory to the Administrative Agent.
“Pro Forma Adjusted EBITDA” means, for any period, the sum of, without duplication,
(a) EBITDA for such period, plus (b) non-recurring non-cash expenses or charges during such
period, plus (c) for any acquisitions which are consummated on or after the Closing Date,
add-backs permitted pursuant to Article 11, Regulation S-X of the Securities Act of 1933 for the
12-month period then ended, plus (d) the effect of Additional Volume and/or Increased Use,
as applicable, and itemized direct cost savings that will be achieved as a result of, or in
connection with, any acquisitions consummated after the Closing Date, plus (e) non-cash
charges for accretion on closure and post-closure obligations, plus (f) non-cash charges
associated with the disposal contract between Waste Management, Inc. and WCA Waste Systems,
plus (g) for any acquisitions, if any, the Prior Acquisition Add-Back, plus (h)
non-cash charges (or minus non-cash benefits, if applicable) reflecting the adoption of
SFAS No. 123 (and all amendments thereto), plus (i) all non-cash charges related to
restricted stock and redeemable stock interests granted to officers, directors and employees,
plus (j) non-cash expense (or minus non-cash income, if applicable) associated with
FAS 133 treatment of any Hedging Agreements, plus (k) non-cash losses on asset sales in an
aggregate amount not to exceed $500,000.
“Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.
“Quarterly Dates” means the last day of each March, June, September and December, in
each year, the first of which shall be September 30, 2006; provided, however, that if any such day
is not a Business Day, such Quarterly Date shall be the next succeeding Business Day.
“Register” is defined in Section 12.05(c).
“Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be amended or supplemented from time to time.
“Regulatory Change” means, with respect to any Lender, any change after the Closing
Date in any Governmental Requirement (including Regulation D) or the adoption or making after such
date of any interpretations, directives or requests applying to a class of lenders (including such
Lender or its Applicable Lending Office) of or under any Governmental
Revolving Credit Agreement – Page 18
Requirement (whether or not having the force of law) by any Governmental Authority charged
with the interpretation or administration thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, attorneys and advisors of such Person and of such
Person’s Affiliates.
“Released Parties” is defined in Section 12.17.
“Required Lenders” means: (a) so long as there is a single Lender, that Lender and (b)
at any time while no Loans are outstanding, two or more Lenders holding an amount which is greater
than or equal to 51% of the Aggregate Revolving Credit Commitments and, at any time while Loans are
outstanding, two or more Lenders holding an amount which is greater than or equal to 51% of the
aggregate principal amount of the outstanding Loans (without regard to any sale by a Lender of a
participation in any Loan under Section 12.05(d)) and unused Aggregate Revolving Credit
Commitments at such time.
“Reserve Requirement” means, for any Interest Period for any LIBOR Loan, the average
maximum rate at which reserves (including 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 reflect any other reserves required to be maintained
by such member banks by reason of any Regulatory Change against (a) any category of liabilities
which includes deposits by reference to which LIBOR is to be determined as provided in the
definition of “LIBOR” or (b) any category of extensions of credit or other assets which include a
LIBOR Loan.
“Responsible Officer” means, as to any Person, the Chief Executive Officer, the
President or any Vice President of such Person and, with respect to financial matters, the term
“Responsible Officer” shall include the Chief Financial Officer or, with respect to the Borrower,
the Controller of such Person. Unless otherwise specified, all references to a Responsible Officer
herein shall mean a Responsible Officer of the Borrower.
“Revolving Credit Commitment” means, for any Lender, its obligation to make Revolving
Credit Loans and participate in the issuance of Letters of Credit as set forth opposite such
Lender’s name on Annex I under the caption “Revolving Credit Commitment” (as the same may
be reduced pursuant to Section 2.03(b) pro rata to each Lender based on its Percentage
Share), as modified from time to time to reflect any assignments permitted by Section
12.05(b).
“Revolving Credit Loans” means Loans made pursuant to Section 2.01(a).
“Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002.
“SEC” means the Securities and Exchange Commission or any successor Governmental
Authority.
Revolving Credit Agreement – Page 19
“Secured Parties” means the Administrative Agent, the Lenders, each Issuing Bank and
each Affiliate of a Lender that is a party to a Hedging Agreement.
“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.
“Security Agreement” means that certain Security Agreement dated as of the Closing
Date by and among the Borrower, Holdings, WCA Waste Systems and WCA Waste System’s Subsidiaries and
the Collateral Agent for the benefit of the Secured Parties.
“Senior Secured Funded Debt” means all Funded Debt other than Subordinated Debt and
the Senior Unsecured Debt.
“Senior Secured Funded Debt Leverage Ratio” means, for the Borrower and its
Consolidated Subsidiaries, calculated as of the end of each fiscal quarter, the ratio of (a) Senior
Secured Funded Debt as of the end of such fiscal quarter to (b) Pro Forma Adjusted EBITDA for the
immediately preceding four fiscal quarters.
“Senior Unsecured Debt” means the $150,000,000 Senior Unsecured Notes dated as of June
___, 2006 issued by Borrower pursuant to the Senior Unsecured Note Indenture, with a maturity of
June 15, 2014.
“Senior Unsecured Note Indenture” means the Indenture dated as of June ___, 2006 among
Borrower, the Guarantors (as therein defined) and the Bank of New York Trust Company, N.A., as
trustee, regarding the issuance of notes evidencing the Senior Unsecured Debt.
“Settlement” means the making or receiving of payments, in immediately available
funds, by the Lenders to or from the Administrative Agent in accordance with Section
2.01(b) hereof to the extent necessary to cause each such Lender’s actual share of the
outstanding amount of Swing Line Loans to be equal to such Lender’s Percentage Share of the
outstanding Swing Line Loans, in any case when, prior to such action, the actual share is not so
equal.
“Settlement Amount” is defined in Section 2.01(b)(ii).
“Settlement Date” is defined in Section 2.01(b)(ii).
“Settling Lender” is defined in Section 2.01(b)(ii).
“Special Entity” means, with respect to any Person, any joint venture, limited
liability company or partnership, general or limited partnership or any other type of partnership
or company (other than a corporation) in which such Person or one or more of its other Subsidiaries
is a member, owner, partner or joint venturer and owns, directly or indirectly, at least a majority
of the equity of such entity or controls such entity, but excluding any tax partnerships that are
not classified as partnerships under state law. For purposes of this definition, any Person which
Revolving Credit Agreement – Page 20
owns directly or indirectly an equity investment in another Person which allows the first
Person to manage or elect managers who manage the normal activities of such second Person will be
deemed to “control” such second Person (e.g. a sole general partner controls a limited
partnership).
“Subordinated Debt” means any Debt of the Borrower expressly subordinated to the
Obligations, on terms specifically including, without limitation, that payments on such Debt shall
be prohibited if a Default exists or would result from such payment, and other terms and conditions
and pursuant to documentation, all in form and substance reasonably satisfactory to the
Administrative Agent and Required Lenders, such consents not to be unreasonably withheld.
“Subsidiary” means (a) any corporation of which at least a majority of the outstanding
shares of stock having by the terms thereof ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or controlled by another
Person or one or more of such Person’s Subsidiaries or by such Person and one or more of its
Subsidiaries and (b) any Special Entity. Unless otherwise expressly stated herein, each reference
to the term “Subsidiary” shall mean a Subsidiary of the Borrower.
“Swing Line Commitment” means, for the Swing Line Lender, its obligation to make Swing
Line Loans up to $10,000,000.
“Swing Line Facility” means the facility pursuant to Section 2.01(b).
“Swing Line Lender” means Comerica or such other Lender as the Administrative Agent,
the Borrower and such Lender shall agree.
“Swing Line Loans” means the Loans made pursuant to Section 2.01(b).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.
“Termination Date” means with respect to the Aggregate Revolving Credit Commitments,
the earlier of (a) July 5, 2011, and (b) the date that the Aggregate Revolving Credit Commitments
are sooner terminated pursuant to Section 2.03(b) or 10.02 and the Revolving Credit
Loans are prepaid in full pursuant to Section 2.08.
“Transfer” is defined in Section 9.17.
“Type” means, with respect to any Loan, a Base Rate Loan or a LIBOR Loan.
“Welfare Plan” means any employee welfare benefit plan, as defined in Section 3(1) of
ERISA, which (a) is currently or hereafter sponsored maintained or contributed to by the Borrower,
any Subsidiary or an ERISA Affiliate or (b) was at any time during the preceding six calendar years
sponsored, maintained or contributed to, by the Borrower, any Subsidiary or an ERISA Affiliate.
Revolving Credit Agreement – Page 21
Section 1.02 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein
shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time and (f) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
Section 1.03 Accounting Terms and Determinations. Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Administrative Agent or the Lenders
hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the
audited financial statements of the Borrower referred to in Section 7.02 (except for
changes concurred with by the Borrower’s Registered Public Accounting Firm). If at any time any
change in GAAP would affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Administrative Agent, the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP prior to such change
therein and (b) the Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
ARTICLE II
Commitments
Section 2.01 Loans and Letters of Credit.
(a) Revolving Credit Loans. Each Lender severally agrees, on the terms and conditions
of this Agreement, to make loans to the Borrower during the period from and including (i) the
Closing Date or (ii) such later date that such Lender becomes a party to this
Revolving Credit Agreement – Page 22
Agreement as provided in Section 12.05(b), to and up to, but excluding, the
Termination Date in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the amount of such Lender’s Revolving Credit Commitment as then in effect; provided,
however, that the aggregate principal amount of all such Revolving Credit Loans by all Lenders
hereunder at any one time outstanding together with the LC Exposure, and the outstanding Swing Line
Loans shall not exceed the Aggregate Revolving Credit Commitments. Subject to the terms of this
Agreement, during the period from the Closing Date to and up to, but excluding, the Termination
Date, the Borrower may borrow, repay and reborrow the amount described in this Section
2.01(a).
(b) Swing Line Loans.
(i) Solely for ease of administration of the Revolving Credit Loans, the Swing Line Lender
may, upon receipt of a notice required under Section 2.02(c) on the proposed date of
funding, but shall not be required to, fund Base Rate Loans made in accordance with the provisions
of this Agreement, bearing interest as set forth in Section 3.02(a)(i). The Swing Line
Lender may, in its sole discretion and without conferring with the Lenders, make Swing Line Loans
to the Borrower by entry of credits to the Borrower’s operating account(s) with the Swing Line
Lender to cover checks which the Borrower has drawn or made against such account and shall notify
the Administrative Agent of any overdrafts being advanced as Swing Line Loans. The Borrower hereby
requests and authorizes the Swing Line Lender to make from time to time such Swing Line Loans by
means of appropriate entries of such credits sufficient to cover checks then presented. The
Borrower acknowledges and agrees that the making of such Swing Line Loans shall be subject in all
respects to the provisions of this Agreement as if they were Swing Line Loans covered by a request
under Section 2.02(c), including, without limitation, the limitations set forth in this
Section 2.01 and the requirements that the applicable provisions of Section 6.01
(in the case of Swing Line Loans made on the Closing Date) and Section 6.02 be satisfied.
All actions taken by the Swing Line Lender pursuant to the provisions of this Section
2.01(b) shall be conclusive and binding on the Borrower absent manifest error or such Swing
Line Lender’s gross negligence or willful misconduct. The outstanding aggregate amount of Swing
Line Loans advanced by the Swing Line Lender hereunder shall not exceed the Swing Line Commitment
at any time. Each Lender with a Revolving Credit Commitment shall remain severally and
unconditionally liable to fund its pro rata share (based upon each Lender’s Percentage Share) of
such Swing Line Loans on each Settlement Date and, in the event the Swing Line Lender chooses not
to fund all Base Rate Loans requested on any date, to fund its Percentage Share of the Base Rate
Loans requested, subject to satisfaction of the provisions hereof relating to the making of Base
Rate Loans. Prior to each Settlement, all payments or repayments of the principal of, and interest
on, Swing Line Loans shall be credited to the account of the Swing Line Lender. The Borrower shall
have the right, at its election, to prepay the outstanding amount of the Swing Line Loans, as a
whole or in part, at any time without penalty or premium.
(ii) The Lenders with Revolving Credit Commitments shall effect Settlements on (A) the
Business Day immediately following any day which the Swing Line Lender gives written notice to the
Administrative Agent to effect a Settlement, (B) the Business Day immediately following the Swing
Line Lender’s or the Administrative Agent’s becoming aware of the existence of any Default, (C) the
Termination Date, (D) any date on which the
Revolving Credit Agreement – Page 23
Borrower wishes to convert a Swing Line Loan into a Revolving Credit Loan, and (E) in any
event, on the first Business Day of each calendar quarter for the immediately preceding calendar
quarter (each such date, a “Settlement Date”). One Business Day prior to each such
Settlement Date, the Administrative Agent shall give notice by facsimile or telecopier to the
Lenders with Revolving Credit Commitments of (1) the respective outstanding amount of Revolving
Credit Loans made by each Lender as at the close of the prior Business Day, and (2) the amount that
any Lender, as applicable (a “Settling Lender”), shall pay to effect a settlement (a
“Settlement Amount”). A statement of the Administrative Agent submitted to the Lenders
with Revolving Credit Commitments with respect to any amounts owing hereunder shall be PRIMA FACIE
evidence of the amount due and owing. Each Settling Lender shall, not later than 11:00 a.m.
(Central Time) on each Settlement Date, effect a wire transfer of immediately available funds to
the Administrative Agent, for the benefit of the Swing Line Lender, at the Administrative Agent’s
Principal Office in the amount of such Lender’s Settlement Amount. All funds advanced by any
Lender with a Revolving Credit Commitment as a Settling Lender pursuant to this Section
2.01(b) shall for all purposes be treated as a Base Rate Loan by that Lender (in place of the
Swing Loan Lender) to the Borrower and all such funds so advanced shall be treated as a payment in
full of such amount by the Borrower under its Swing Line Loan.
(iii) Subject to the Settling Lender’s receipt of the notice required pursuant to
Section
2.01(b)(ii), the Administrative Agent may (unless notified to the contrary by any Settling
Lender by 11:00 a.m. (Central Time) one Business Day prior to the Settlement Date) assume that each
Settling Lender has made available (or will make available by the time specified in Section
2.01(b)(ii)) to the Administrative Agent its Settlement Amount, and the Administrative Agent
may (but shall not be required to), in reliance upon such assumption, effect Settlements. If the
Settlement Amount of such Settling Lender is made available to the Administrative Agent on a date
after such Settlement Date, such Settling Lender shall pay the Administrative Agent, for the
benefit of the Swing Line Lender, on demand an amount equal to the product of (A) the average,
computed for the period referred to in clause (C) below, of the weighted average annual
interest rate paid by the Administrative Agent for federal funds acquired by the Administrative
Agent during each day included in such period times (B) such Settlement Amount times (C) a
fraction, the numerator of which is the number of days that elapse from and including such
Settlement Date to but not including the date on which such Settlement Amount shall become
immediately available to the Administrative Agent, and the denominator of which is 360. Upon
payment of such amount such Settling Lender shall be deemed to have delivered its Settlement Amount
on the Settlement Date and shall become entitled to interest payable by the Borrower with respect
to such Settling Lender’s Settlement Amount as if such share were delivered on the Settlement Date.
If such Settlement Amount is not in fact made available to the Administrative Agent by such
Settling Lender within three Business Days of such Settlement Date, the Administrative Agent shall
be entitled to recover such amount from the Borrower, with any unpaid interest thereon at the Base
Rate.
(iv) After any Settlement Date, any payment by the Borrower of Swing Line Loans hereunder
shall be allocated pro rata among the Lenders with Revolving Credit Commitments, in accordance with
such Lender’s Percentage Share.
(v) If, prior to the making of a Revolving Credit Loan pursuant to clause (ii) of this
Section 2.01(b), a Default has occurred and is continuing, each Lender with a
Revolving Credit Agreement – Page 24
Revolving Credit Commitment shall, on the date such Revolving Credit Loan was to have been
made, purchase an undivided participating interest in the outstanding Swing Line Loans in an amount
equal to its Percentage Share of such Swing Line Loans. Each Lender with a Revolving Credit
Commitment will immediately transfer to the Administrative Agent, for the benefit of the Swing Line
Lender, in immediately available funds, the amount of its participation and upon receipt thereof
the Administrative Agent will deliver to such Lender a Swing Line participation certificate dated
the date of receipt of such funds and in such amount.
(vi) Whenever, at any time after the Administrative Agent has received from any Lender with a
Revolving Credit Commitment such Lender’s participating interest in the Swing Line Loans pursuant
to clause (v) above, the Administrative Agent receives any payment on account thereof, the
Administrative Agent will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such Lender’s participating interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by the Administrative Agent is
required to be returned, such Lender will return to the Administrative Agent any portion thereof
previously distributed by the Administrative Agent to it in like funds as such payment is required
to be returned by the Administrative Agent.
(vii) Each Lender’s obligation to purchase participating interests pursuant to clause
(v) above shall be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Administrative Agent, the Borrower or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default; (C) any adverse change in
the condition (financial or otherwise) of the Borrower or any other Person; (D) any breach of this
Agreement by the Borrower or any other Lender or the Administrative Agent; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(c) Letters of Credit. During the period from and including the Closing Date to, but
excluding, the date 30 days prior to the Termination Date, the Issuing Bank, as issuing bank for
the Lenders with Revolving Credit Commitments, agrees to extend credit for the account of the
Borrower or any Guarantor (other than Holdings) at any time and from time to time by issuing,
renewing, extending or reissuing Letters of Credit; provided however, the LC Exposure at any one
time outstanding shall not exceed the lesser of (i) the LC Commitment or (ii) the Aggregate
Revolving Credit Commitments, as then in effect, minus the aggregate principal amount of
all Revolving Credit Loans, Swing Line Loans and the LC Exposure then outstanding. The Lenders
with Revolving Credit Commitments shall participate in such Letters of Credit according to their
respective Percentage Shares. Each of the Letters of Credit shall (i) be issued by the Issuing
Bank, (ii) contain such terms and provisions as are reasonably required by the Issuing Bank, (iii)
be for the account of the Borrower or any Guarantor (other than Holdings) and (iv) expire not later
than five Business Days prior to the Termination Date.
(d) Limitation on Types of Loans. Subject to the other terms and provisions of this
Agreement, at the option of the Borrower, the Loans may be Base Rate Loans or LIBOR Loans; provided
that, without the prior written consent of the Required Lenders, no more than 10 LIBOR Loans may be
outstanding at any time.
Revolving Credit Agreement – Page 25
Section 2.02 Borrowings, Continuations and Conversions, Letters of Credit.
(a) Borrowings. The Borrower shall give the Administrative Agent (which shall
promptly notify the Lenders) advance notice as hereinafter provided of each borrowing hereunder,
which shall specify (i) the aggregate amount of such borrowing, (ii) the Type and (iii) the date
(which shall be a Business Day) of the Loans to be borrowed, and (iv) (in the case of LIBOR Loans)
the duration of the Interest Period therefor.
(b) Minimum Amounts. All Base Rate Loan borrowings shall be in amounts of at least
$500,000 or the remaining balance of the Aggregate Revolving Credit Commitments, if less, or any
whole multiple of $100,000 in excess thereof, and all LIBOR Loan borrowings shall be in amounts of
at least $1,000,000 or any whole multiple of $500,000 in excess thereof.
(c) Notices. All borrowings (except for borrowings automatically funded under
Section 2.10(d)), continuations and conversions shall require advance written notice to the
Administrative Agent (which shall promptly notify the Lenders) in the form of Exhibit B
(or telephonic notice promptly confirmed by such a written notice), which in each case shall be
irrevocable, from the Borrower to be received by the Administrative Agent (i) not later than 11:00
a.m. (Central time) on the date of each Swing Line Loan and (ii) with respect to all Loans other
than Swing Line Loans, not later than 11:00 a.m. (Central time) at least one Business Day prior to
the date of each Base Rate Loan borrowing and three Business Days prior to the date of each LIBOR
Loan borrowing, continuation or conversion. Without in any way limiting the Borrower’s obligation
to confirm in writing any telephonic notice, the Administrative Agent may act without liability
upon the basis of telephonic notice believed by the Administrative Agent in good faith to be from
the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby
waives the right to dispute the Administrative Agent’s record of the terms of such telephonic
notice except in the case of gross negligence or willful misconduct by the Administrative Agent.
(d) Continuation Options. Subject to the provisions made in this Section
2.02(d), the Borrower may elect to continue all or any part of any LIBOR Loan beyond the
expiration of the then current Interest Period relating thereto by giving advance notice as
provided in Section 2.02(c) to the Administrative Agent (which shall promptly notify the
Lenders) of such election, specifying the amount of such Loan to be continued and the Interest
Period therefor. In the absence of such a timely and proper election, the Borrower shall be deemed
to have elected to convert such LIBOR Loan to a Base Rate Loan pursuant to Section 2.02(e).
All or any part of any LIBOR Loan may be continued as provided herein, provided that (i) any
continuation of any such Loan shall be (as to each Loan as continued for an applicable Interest
Period) in amounts of at least $1,000,000 or any whole multiple of $500,000 in excess thereof and
(ii) no Default shall have occurred and be continuing. If a Default shall have occurred and be
continuing, each LIBOR Loan shall be converted to a Base Rate Loan on the last day of the Interest
Period applicable thereto.
(e) Conversion Options. The Borrower may elect to convert all or any part of any
LIBOR Loan on the last day of the then current Interest Period relating thereto to a Base Rate Loan
by giving advance notice to the Administrative Agent (which shall promptly notify the Lenders) of
such election. Subject to the provisions made in this Section 2.02(e), the
Revolving Credit Agreement – Page 26
Borrower may elect to convert all or any part of any Base Rate Loan at any time and from time
to time to a LIBOR Loan by giving advance notice as provided in Section 2.02(c) to the
Administrative Agent (which shall promptly notify the Lenders) of such election. All or any part
of any outstanding Loan may be converted as provided herein, provided that (i) any conversion of
all or any part of any Base Rate Loan into a LIBOR Loan shall be (as to each such Loan into which
there is a conversion for an applicable Interest Period) in amounts of at least $1,000,000 or any
whole multiple of $500,000 in excess thereof and (ii) no Default shall have occurred and be
continuing. If a Default shall have occurred and be continuing, no Base Rate Loan may be converted
into a LIBOR Loan.
(f) Advances. Not later than 11:00 a.m. (Central time) on the date specified for each
borrowing hereunder, each Lender shall make available the amount of the Loan to be made by it on
such date to the Administrative Agent, to an account which the Administrative Agent shall specify,
in immediately available funds, for the account of the Borrower. The amounts so received by the
Administrative Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by depositing the same, in immediately available funds, in an account of
the Borrower, designated by the Borrower and maintained at the Principal Office.
(g) Letters of Credit. The Borrower shall give the Issuing Bank (which shall promptly
notify the Lenders with Revolving Credit Commitments of such request and their Percentage Share of
such Letter of Credit) advance notice to be received by the Issuing Bank not later than 11:00 a.m.
(Central time) not less than three Business Days prior thereto of each request for the issuance,
and at least the earlier of (A) 30 Business Days prior to the date of the renewal or extension, of
a Letter of Credit hereunder or (B) 30 calendar days prior to the last date upon which the Issuing
Bank is required to give notice of cancellation or non-renewal of such Letter of Credit thereunder,
which request shall specify (i) the amount of such Letter of Credit, (ii) the date (which shall be
a Business Day) such Letter of Credit is to be issued, renewed or extended, (iii) the duration
thereof, (iv) the name and address of the beneficiary thereof and (v) such other information as the
Administrative Agent may reasonably request, all of which shall be reasonably satisfactory to the
Administrative Agent. Subject to the terms and conditions of this Agreement, on the date specified
for the issuance, renewal or extension of a Letter of Credit, the Administrative Agent shall issue,
renew or extend such Letter of Credit to the beneficiary thereof.
In conjunction with the issuance of each Letter of Credit, the Borrower shall execute a Letter
of Credit Agreement. In the event of any conflict between any provision of a Letter of Credit
Agreement and this Agreement, the Borrower, the Issuing Bank, the Administrative Agent and the
Lenders hereby agree that the provisions of this Agreement shall govern.
The Issuing Bank will send to the Borrower and each Lender, immediately upon issuance of any
Letter of Credit, or an amendment thereto, a true and complete copy of such Letter of Credit, or
such amendment thereto.
Revolving Credit Agreement – Page 27
Section 2.03 Changes of Aggregate Revolving Credit Commitments.
(a) The Aggregate Revolving Credit Commitments shall be automatically adjusted as a result of
any reductions pursuant to Section 2.03(b) or 2.08.
(b) The Borrower shall have the right to terminate or to reduce the amount of the Aggregate
Revolving Credit Commitments at any time, or from time to time, upon not less than three Business
Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders) of each
such termination or reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which shall not be less than $1,000,000 or any whole multiple of $1,000,000
in excess thereof) and shall be irrevocable and effective only upon receipt by the Administrative
Agent.
(c) The Aggregate Revolving Credit Commitments once terminated or reduced may not be
reinstated.
Section 2.04 Increase in Aggregate Revolving Credit Commitments.
(a) So long as (i) no Default has occurred and is continuing, and (ii) the Borrower has not
terminated or reduced in part any unused portion of the Aggregate Revolving Credit Commitments at
any time pursuant to Section 2.03, the Borrower may by notice to the Administrative Agent,
request increases in the amount of the Aggregate Revolving Credit Commitments within the
limitations hereafter described, which notices shall set forth the amount of any such increase. In
accordance with Section 2.04(d), the amount of the Aggregate Revolving Credit Commitments
may be so increased either by having one or more New Lenders that have been approved by the
Borrower become Lenders and/or by having any one or more of the then existing Lenders (at their
respective election in their sole discretion) increase the amount of their Commitments
(“Increasing Lenders”), provided that (i) the Revolving Credit Commitment of any New Lender
shall not be less than $5,000,000 and the sum of the Commitments of the New Lenders and the
increases in the Commitments of the Increasing Lenders shall be in an aggregate amount of not less
than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (ii) the
aggregate amount of all the increases in the Aggregate Revolving Credit Commitments pursuant to
this Section 2.04 shall not exceed $100,000,000 (provided however, the Administrative Agent
shall have consented in its sole discretion to the utilization of the last $5,000,000 of the amount
described in this clause (ii)); (iii) the Borrower, each New Lender and/or each Increasing
Lender shall have executed and delivered to the Administrative Agent a commitment and acceptance
(the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto,
and the Administrative Agent shall have accepted and executed the same, (iv) if requested by the
Administrative Agent, the Borrower shall have delivered to the Administrative Agent opinions of
counsel (substantially similar to the forms of opinions provided for in Section 6.01(f),
modified to apply to the increase in the Commitments and Commitment and Acceptance executed and
delivered in connection therewith); (v) the Guarantors shall have consented in writing to the new
Commitments or increases in Commitments (as applicable) and shall have agreed that their Guaranty
Agreement continues in full force and effect, and (vi) the Borrower, each New Lender and/or each
Increasing Lender shall otherwise have executed and delivered such other instruments and documents
as the Administrative Agent shall have reasonably requested in connection with such new Commitment
Revolving Credit Agreement – Page 28
or increase in the Commitment (as applicable). The form and substance of the documents
required under clauses (iii) through (vi) above shall be reasonably acceptable to
the Administrative Agent. The Administrative Agent shall provide written notice to all of the
Lenders hereunder of the admission of any New Lender or the increase in the Commitment of any
Increasing Lender hereunder and shall furnish to each of the Lenders copies of the documents
required under clause (iii), (iv), (v) and (vi) above.
(b) Upon the effective date of any increase in the Aggregate Revolving Credit Commitments
pursuant to the provisions hereof (such date hereinafter referred to as the “Increase
Date”), which Increase Date shall be mutually agreed upon by the Borrower, each New Lender,
each Increasing Lender and the Administrative Agent, each New Lender and/or Increasing Lender shall
make a payment to the Administrative Agent in an amount sufficient, upon the application of such
payments by all New Lenders and Increasing Lenders to the reduction of the outstanding Loans held
by the Lenders (including the Increasing Lenders) to cause the principal amount outstanding under
the Loans made by each Lender to be equal to each Lender’s Percentage Share of the Aggregate
Revolving Credit Commitments as so increased as described herein. The Borrower hereby irrevocably
authorizes each New Lender and/or each Increasing Lender to fund to the Administrative Agent the
payment required to be made pursuant to the immediately preceding sentence for application to the
reduction of the outstanding Loans held by the other Lenders, and each such payment shall
constitute a Loan hereunder. If, as a result of the repayment of the Loans provided for in this
Section 2.04(b), any payment of a LIBOR Loan occurs on a day which is not the last day of
the applicable Interest Period, the Borrower will pay to the Administrative Agent for the benefit
of any of the Lenders (including any Increasing Lender to the extent of LIBOR Loans held by such
Increasing Lender prior to such Increase Date) holding a LIBOR Loan any loss or cost incurred by
such Lender resulting therefrom in accordance with Section 5.04. Upon the Increase Date,
all Loans outstanding hereunder (including any Loans made by the New Lenders and/or Increasing
Lenders on the Increase Date) shall be Base Rate Loans, subject to the Borrower’s right to convert
the same to LIBOR Loans on or after such date in accordance with the provisions of Section
2.02.
(c) Upon the Increase Date and the making of the Revolving Credit Loans by the New Lenders
and/or Increasing Lenders in accordance with the provisions of Section 2.04(b), each New
Lender and/or each Increasing Lender shall also be deemed to have irrevocably and unconditionally
purchased and received without recourse or warranty, from the Lenders with Revolving Credit
Commitments immediately prior to the Increase Date, an undivided interest and participation in any
Letter of Credit and Swing Line Loan, as applicable, then outstanding, ratably, such that each
Lender (including each New Lender) with Revolving Credit Commitments holds a participation interest
in each such Letter of Credit and Swing Line Loan, as applicable, in proportion to such Lender’s
Percentage Share.
(d) Upon the notice by the Borrower to the Administrative Agent pursuant to Section
2.04(a) hereof, each of the then existing Lenders shall have the right (at such Lender’s
election) to increase its Commitment by an amount equal to such Lender’s Percentage Share of the
proposed increase in the Aggregate Revolving Credit Commitments. If less than all of the proposed
increase in Aggregate Revolving Credit Commitments is elected by the existing Lenders, then any of
the then existing Lenders shall have the right to increase its Commitment in an amount greater than
such Lender’s Percentage Share of the proposed increase in the Aggregate
Revolving Credit Agreement – Page 29
Revolving Credit Commitments with the Administrative Agent’s approval. If the entire amount
of the proposed increase in Aggregate Revolving Credit Commitments is still not obtained, the
Borrower may with the Administrative Agent’s cooperation add New Lenders, such New Lenders to be
reasonably acceptable to the Administrative Agent, with new Commitments which when added to the
increase in Commitments of the Increasing Lenders, shall equal the requested increase in the
Aggregate Revolving Credit Commitments. In the event the sum of each New Lender’s Commitment and
the increase in each Increasing Lender’s Commitment is less than the requested increase in the
Aggregate Revolving Credit Commitments, the Borrower may elect to accept the increase in the
Aggregate Revolving Credit Commitments to be equal to such lesser amount. Notwithstanding anything
to the contrary, Administrative Agent shall not be liable for any failure to obtain Increasing
Lenders or New Lenders hereunder or any failure to increase the Aggregate Revolving Credit
Commitments by the amount so requested by the Borrower pursuant to Section 2.04(a).
(e) Nothing contained herein shall constitute, or otherwise be deemed to be a commitment or
agreement on the part of any Lender to increase its Commitment hereunder at any time. No Lender
(except only for itself) shall have the right to decline Borrower’s request pursuant to Section
2.04(a) for an increase in the Aggregate Revolving Credit Commitments.
Section 2.05 Fees.
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the
account of each Lender holding a Revolving Credit Commitment, a commitment fee on the daily average
unused amount of the Aggregate Revolving Credit Commitments for the period from and including the
Closing Date up to, but excluding, the earlier of the date the Aggregate Revolving Credit
Commitments are terminated or the Termination Date at a rate per annum equal to the applicable per
annum percentage set forth at the appropriate intersection in the table shown below, based on the
Leverage Ratio on the most recent Determination Date:
|
|
|
|
|
|
|
|
|
|
|
Commitment |
Leverage Ratio |
|
|
|
Fee Percentage |
<3.00:1.00
|
|
|
|
|
0.25 |
% |
³ 3.00:1.00 and <3.50:1.00
|
|
|
|
|
0.25 |
% |
³ 3.50:1.00 and <4.00:1.00
|
|
|
|
|
0.25 |
% |
³ 4.00:1.00 and <4.50:1.00
|
|
|
|
|
0.375 |
% |
³ 4.50:1.00
|
|
|
|
|
0.50 |
% |
The commitment fee percentage shall be established as of each Determination Date beginning with the
Initial Determination Date. Any change in the commitment fee percentage following each
Determination Date shall be determined based upon the information and computations set forth in the
financial statements and Compliance Certificate furnished to the Administrative Agent pursuant to
Section 8.01, subject to review and approval of such computations by the Administrative
Agent. Each change in the commitment fee percentage shall be effective as of the first day of the
calendar month following each Determination Date and shall remain in effect until the date that is
the first day of the calendar month following the next Determination Date for which a change in the
commitment fee percentage occurs; provided, however; if the
Revolving Credit Agreement – Page 30
Borrower shall fail to deliver any required financial statements or Compliance Certificate within
the time period required by Section 8.01, the commitment fee percentage shall be the
highest percentage amount set forth in the above table for the period beginning on the relevant
Determination Date and ending on the date that the appropriate financial statements and Compliance
Certificate are so delivered. Notwithstanding the foregoing, during the period beginning on the
Closing Date and ending on the Initial Determination Date, the commitment fee percentage shall be
0.25%. Accrued commitment fees shall be payable quarterly in arrears on each Quarterly Date and on
the earlier of the date the Aggregate Revolving Credit Commitments are terminated or the
Termination Date. For purposes of computing the commitment fees payable hereunder, outstanding
Swing Line Loans shall be disregarded.
(b) Letter of Credit Fees.
(i) The Borrower agrees to pay the Administrative Agent, for the account of each Lender
holding a Revolving Credit Commitment, commissions for issuing the Letters of Credit on the daily
average outstanding of the maximum liability of the Issuing Bank existing from time to time under
such Letter of Credit (calculated separately for each Letter of Credit) at the rate per annum equal
to (x) with respect to Closure/Post-Closure Letters of Credit for landfills with remaining
permitted lives expiring after the Termination Date, 75% of the Applicable Margin in effect from
time to time for Letters of Credit, and (y) with respect to all other Letters of Credit, the
Applicable Margin in effect from time to time for Letters of Credit, provided that each Letter of
Credit shall bear a minimum commission of $500. Each Letter of Credit shall be deemed to be
outstanding up to the full undrawn face amount of the Letter of Credit until the Issuing Bank has
received the canceled Letter of Credit or a written cancellation of the Letter of Credit from the
beneficiary of such Letter of Credit in form and substance acceptable to the Issuing Bank, or for
any reductions in the amount of the Letter of Credit (other than from a drawing), written
notification from the beneficiary of such Letter of Credit. Such commissions are payable quarterly
in arrears on each Quarterly Date and upon cancellation or expiration of each such Letter of
Credit.
(ii) In addition to the foregoing, the Borrower shall pay to the Issuing Bank, for its own
account, (A) a fronting fee equal to 0.125% per annum of the face amount of each Letter of Credit
issued, which fee is due and payable on the date of any renewal or increase of such Letter of
Credit and (B) amendment, transfer, negotiating and other fees in accordance with the Issuing
Bank’s then current fee policy generally applicable to letters of credit of the same or similar
type issued by the Issuing Bank.
(c) The Borrower shall pay such other fees as are set forth in the Fee Letter in the manner
and on the dates specified therein to the extent not paid prior to the Closing Date.
Section 2.06 Several Obligations. The failure of any Lender to make any Loan to be
made by it or to provide funds for disbursements or reimbursements under Letters of Credit on the
date specified therefor shall not relieve any other Lender of its obligation to make its Loan or
provide funds on such date, but no Lender shall be responsible for the failure of any other Lender
to make a Loan to be made by such other Lender or to provide funds to be provided by such other
Lender.
Revolving Credit Agreement – Page 31
Section 2.07 Evidence of Debt. (a) The Borrower hereby unconditionally promises to
pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount
of each Revolving Credit Loan on the Termination Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each LIBOR Loan on the last day of the
Interest Period applicable to such Loan and (iii) to the Swing Line Lender the then unpaid
principal amount of each Swing Line Loan on the earlier of the Termination Date and the day that is
at least seven Business Days after such Swing Line Loan is made; provided that on each date
that a Revolving Credit Loan is made, the Borrower shall repay all Swing Line Loans then
outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to clause (b) or (c)
of this Section shall be prima facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in in the form of Exhibit D attached hereto. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after assignment
pursuant to Section 12.05) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
Section 2.08 Prepayments.
(a) Voluntary Prepayments. The Borrower may prepay the Base Rate Loans upon not less
than one Business Day’s prior notice to the Administrative Agent (which shall promptly notify the
Lenders), which notice shall specify the prepayment date (which shall be a Business Day) and the
amount of the prepayment (which shall be at least $500,000 or any whole multiple of $100,000 or, if
less, the remaining aggregate principal balance outstanding on the Loans) and shall be irrevocable
and effective only upon receipt by the Administrative Agent, provided that interest on the
principal prepaid, accrued to the prepayment date, shall be paid on the prepayment date. The
Borrower may prepay LIBOR Loans on the same conditions as for
Revolving Credit Agreement – Page 32
Base Rate Loans (except that prior notice to the Administrative Agent shall be not less than
three Business Days for LIBOR Loans and the amount of the prepayment shall be at least $1,000,000
or any whole multiple of $500,000 or if less, the remaining aggregate principal balance outstanding
on the Loans) and in addition such prepayments of LIBOR Loans shall be subject to the terms of
Section 5.04.
(b) Mandatory Prepayments.
(i) Revolving Credit Commitment Reductions. If, after giving effect to any
termination or reduction of the Aggregate Revolving Credit Commitments pursuant to Section
2.03(b) or 2.03(c), the outstanding aggregate principal amount of the Revolving Credit
Loans and Swing Line Loans, plus the LC Exposure, exceeds the Aggregate Revolving Credit
Commitments, the Borrower shall (i) prepay the Revolving Credit Loans and Swing Line Loans on the
date of such termination or reduction in an aggregate principal amount equal to the excess,
together with interest on the principal amount paid accrued to the date of such prepayment and (ii)
if any excess remains after prepaying all of the Revolving Credit Loans and Swing Line Loans
because of LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to
the excess to be held as cash collateral as provided in Section 2.10(b) hereof.
(ii) Upon Transfers and Issuances of Equity. The Borrower shall, and shall cause any
Subsidiary to, pay an amount equal to (A) 100% of the net cash proceeds received from any
Transfers, based on the greater of the net book value of the Property sold or the net proceeds
received, provided, that, with respect to net cash proceeds received from a Transfer permitted
under Section 9.17(i), the Borrower is not required to make a prepayment hereunder so long
as such proceeds have been applied to the purchase of replacement Property as described in
Section 9.17(i) or may be otherwise permitted pursuant to Section 9.17(iii), (B)
50% of the excess net cash proceeds received from any issuance by Borrower of any Debt or by its
Subsidiaries of any Subordinated Debt, and (C) 50% of the excess net cash proceeds received from
any issuance by Borrower or its Subsidiaries of common stock, other than any common stock issued to
Ares. Prepayments made pursuant to this clause (ii) shall be applied first, to the
Revolving Credit Loans, and second, as cash collateral. Upon the occurrence of any event requiring
a mandatory prepayment to the Revolving Credit Loans pursuant to this Section 2.08(b)(ii)
other than the issuance by Borrower of the Senior Unsecured Debt in connection with an initial
public offering consummated on or about the Closing Date, the Aggregate Revolving Credit
Commitments shall automatically reduce by an amount equal to such net cash proceeds received in
connection with the transactions described in clauses (A) and (B) above.
Notwithstanding the foregoing, the Borrower may elect to provide cash collateral in lieu of the
prepayment required pursuant to this clause (ii) to the extent any LIBOR Loans are
outstanding until termination of the applicable Interest Period so long as no Default has occurred
and is continuing.
(iii) Generally. Prepayments permitted or required under this Section 2.08
shall be without premium or penalty, except as required under Section 5.04 for prepayment
of LIBOR Loans. Any prepayments on the Revolving Credit Loans may be reborrowed subject to the
then effective Aggregate Revolving Credit Commitments. Any voluntary prepayments shall be applied
to the Revolving Credit Loans as specified by Borrower.
Revolving Credit Agreement – Page 33
Together with any prepayments made hereunder, the accrued interest on the principal amount so
prepaid shall be due and payable on the date of such prepayment.
(iv) Transfers of Non-Core Assets. The Borrower shall, and shall cause any Guarantor
or Subsidiary to, apply an amount equal to 100% of the net cash proceeds received from any
Transfers of the type referred to in Section 9.17(iv) to first, the Revolving Credit Loans,
provided such prepayment shall not cause a reduction in the Aggregate Revolving Credit Commitments
and second, promptly provide cash collateral. Notwithstanding the foregoing, the Borrower may
elect to provide cash collateral in lieu of the prepayment required pursuant to this clause
(iv) to the extent any LIBOR Loans are outstanding until termination of the applicable Interest
Period so long as no Default has occurred and is continuing.
Section 2.09 Assumption of Risks. The Borrower assumes all risks of the acts or
omissions of any beneficiary of any Letter of Credit or any transferee thereof with respect to its
use of such Letter of Credit. Neither the Issuing Bank (except in the case of gross negligence or
willful misconduct on the part of the Issuing Bank or any of its employees), nor any Lender shall
be responsible for the validity, sufficiency (except for the sufficiency on their face) or
genuineness of certificates or other documents or any endorsements thereon, even if such
certificates or other documents should in fact prove to be invalid, insufficient, fraudulent or
forged; for errors, omissions, interruptions or delays in transmissions or delivery of any messages
by mail, telex, or otherwise, whether or not they be in code; for errors in translation or for
errors in interpretation of technical terms; the validity or sufficiency (except for the
sufficiency on their face) of any instrument transferring or assigning or purporting to transfer or
assign any 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; the failure of any
beneficiary or any transferee of any Letter of Credit to comply fully with the underlying
conditions required in order to draw upon any Letter of Credit; or for any other consequences
arising from causes beyond the Issuing Bank’s control or the control of the Issuing Bank’s
correspondents. In addition, neither the Issuing Bank, the Administrative Agent nor any Lender
shall be responsible for any error, neglect, or default of any of the Issuing Bank’s
correspondents; and none of the above shall affect, impair or prevent the vesting of any of the
Issuing Bank’s, the Administrative Agent’s or any Lender’s rights or powers hereunder or under the
Letter of Credit Agreements or this Agreement, all of which rights shall be cumulative. The
Issuing Bank and its correspondents may accept certificates or other documents that appear on their
face to comply with the terms of the applicable Letter of Credit, without responsibility for
further investigation of any matter contained therein regardless of any notice or information to
the contrary. In furtherance and not in limitation of the foregoing provisions, the Borrower
agrees that any action, inaction or omission taken or not taken by the Issuing Bank or by any
correspondent for the Issuing Bank in good faith in connection with any Letter of Credit, or any
related drafts, certificates, documents or instruments, shall be binding on the Borrower and shall
not put the Issuing Bank or its correspondents under any resulting liability to the Borrower in the
absence of gross negligence or willful misconduct on the part of any such Person.
Section 2.10 Obligation to Reimburse and to Prepay.
(a) If a disbursement by the Issuing Bank is made under any Letter of Credit, the Borrower
shall pay to the Administrative Agent within two Business Days after notice of any
Revolving Credit Agreement – Page 34
such disbursement is received by the Borrower, the amount of each such disbursement made by
the Issuing Bank under the Letter of Credit (if such payment is not sooner effected as may be
required under this Section 2.10 or under other provisions of the Letter of Credit),
together with interest on the amount disbursed from and including the date of disbursement until
payment in full of such disbursed amount at a varying rate per annum equal to (i) the then
applicable interest rate for Base Rate Loans (but in no event to exceed the Maximum Rate) through
the second Business Day after notice of such disbursement is received by the Borrower and (ii)
thereafter, the Post-Default Rate for Base Rate Loans (but in no event to exceed the Maximum Rate)
for the period from and including the third Business Day following the date of such disbursement to
and including the date of repayment in full of such disbursed amount. Subject to Section
12.11, the obligations of the Borrower under this Agreement with respect to each Letter of
Credit shall be absolute, unconditional and irrevocable and shall be paid or performed strictly in
accordance with the terms of this Agreement under all circumstances whatsoever, including, without
limitation, but only to the fullest extent permitted by applicable law, the following
circumstances: (i) any lack of validity or enforceability of this Agreement, any Letter of Credit,
or any of the other Loan Documents; (ii) any amendment or waiver of (including any default), or any
consent to departure from this Agreement (except to the extent permitted by any amendment or
waiver), any Letter of Credit, or any of the other Loan Documents; (iii) the existence of any
claim, set-off, defense or other rights which the Borrower or any Guarantor, if applicable, may
have at any time against the beneficiary of any Letter of Credit or any transferee of any Letter of
Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, the Administrative Agent, any Lender or any other Person, whether in connection with
this Agreement, any Letter of Credit, the other Loan Documents, the transactions contemplated
hereby or any unrelated transaction; (iv) any statement, certificate, draft, notice or any other
document presented under any Letter of Credit proves to have been forged, fraudulent, insufficient
(so long as it is not insufficient on its face) or invalid in any respect or any statement therein
proves to have been untrue or inaccurate in any respect whatsoever; (v) payment by the Issuing Bank
under any Letter of Credit against presentation of a draft or certificate which appears on its face
to comply, but does not comply, with the terms of such Letter of Credit; and (vi) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Notwithstanding anything in this Agreement to the contrary, the Borrower will not be liable for
payment or performance that results from the gross negligence or willful misconduct of the Issuing
Bank, except to the extent the Borrower or any Subsidiary actually recovers (net of costs and
expenses) any proceeds (net of any expenses incurred for such recovery) for itself or the Issuing
Bank of any payment made by the Issuing Bank in connection with such gross negligence or willful
misconduct.
(b) In the event of the occurrence of any Event of Default, a payment or prepayment pursuant
to Section 2.08(b) or the maturity of the Loans, whether by acceleration or otherwise, an
amount equal to the LC Exposure (or the excess in the case of Section 2.08(b)), shall be
deemed to be forthwith due and owing by the Borrower to the Administrative Agent as of the date of
any such occurrence; and the Borrower’s obligation to pay such amount shall be absolute and
unconditional, without regard to whether any beneficiary of any such Letter of Credit has attempted
to draw down all or a portion of such amount under the terms of a Letter of Credit, and, to the
fullest extent permitted by applicable law, shall not be subject to any defense or be affected by a
right of set-off, counterclaim or recoupment which the Borrower may now or hereafter have against
any such beneficiary, the Issuing Bank, the Administrative Agent, the
Revolving Credit Agreement – Page 35
Lenders or any other Person for any reason whatsoever. Such payments shall be held by the
Administrative Agent on behalf of the Issuing Bank and the Lenders as cash collateral securing the
LC Exposure in an account or accounts at the Principal Office; and the Borrower hereby grants to
and by its deposit with the Administrative Agent grants to the Administrative Agent a security
interest in such cash collateral. In the event of any such payment by the Borrower of amounts
contingently owing under outstanding Letters of Credit and in the event that thereafter drafts or
other demands for payment complying with the terms of such Letters of Credit are not made prior to
the respective expiration dates thereof, the Administrative Agent agrees, if no Event of Default
has occurred and is continuing or if no other amounts are outstanding under this Agreement or the
other Loan Documents, to remit to the Borrower amounts for which the contingent obligations
evidenced by the Letters of Credit have ceased.
(c) Each Lender with a Revolving Credit Commitment severally and unconditionally agrees that
it shall promptly reimburse the Issuing Bank an amount equal to such Lender’s Percentage Share of
any disbursement made by the Issuing Bank under any Letter of Credit that is not reimbursed
according to this Section 2.10.
(d) Notwithstanding anything to the contrary contained herein, subject to availability under
the Swing Line Commitment, to the extent the Borrower has not reimbursed the Issuing Bank for any
drawn upon Letter of Credit within two Business Days after notice of such disbursement has been
received by the Borrower, the amount of such Letter of Credit reimbursement obligation shall
automatically be funded by the Swing Line Lender as a Swing Line Loan hereunder and used by the
Swing Line Lender to pay such Letter of Credit reimbursement obligation. To the extent the funding
of such Letter of Credit reimbursement obligation as a Swing Line Loan would cause the aggregate
amount of all Swing Line Loans outstanding to exceed the Swing Line Commitment or the Swing Line
Lender does not desire to make a Swing Line Loan for such purpose, such Letter of Credit
reimbursement obligation shall not be funded as a Swing Line Loan, but instead shall be funded as a
Revolving Credit Loan.
Section 2.11 Lending Offices. The Loans of each Type made by each Lender shall be
made and maintained at such Lender’s Applicable Lending Office for Loans of such Type.
ARTICLE III
Payments of Principal and Interest
Section 3.01 Repayment of Loans.
(a) Revolving Credit Loans. On the Termination Date the Borrower shall repay the
outstanding principal amount of the Revolving Credit Loans.
(b) Swing Line Loans. The principal amount of each advance of a Swing Line Loan
(together with all interest accrued thereon until the date of payment) shall be repaid pursuant to
the terms of Section 2.01(b).
Revolving Credit Agreement – Page 36
Section 3.02 Interest.
(a) Interest Rates. The Borrower will pay to the Administrative Agent, for the
account of each Lender, interest on the unpaid principal amount of each Loan made by such Lender
for the period commencing on the date such Loan is made to, but excluding, the date such Loan shall
be paid in full, at the following rates per annum:
(i) if such Revolving Credit Loan is a Base Rate Loan, the Base Rate (as in effect from time
to time) plus the Applicable Margin, but in no event to exceed the Maximum Rate; and
(ii) if such Revolving Credit Loan is a LIBOR Loan, for each Interest Period relating thereto,
the LIBOR Rate for such Loan plus the Applicable Margin (as in effect from time to time),
but in no event to exceed the Maximum Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the Borrower will pay to the
Administrative Agent, for the account of each Lender interest at the applicable Post-Default Rate
on any principal of any Loan made by such Lender, and (to the fullest extent permitted by law) on
any other amounts due and payable or that become due and payable by the Borrower hereunder or under
any Loan Document held by such Lender to or for account of such Lender, for the period commencing
on the date of an Event of Default (or the date any such other amount becomes due and payable)
until the same is paid in full or all Events of Default are cured or waived. If an Event of
Default under Section 10.01(a) occurs, the operation of this Section 3.02(b) shall
be automatic, but if the only Events of Default are Events of Default other than under Section
10.01(a), the operation of this Section 3.02(b) shall require the election of the
Required Lenders to accrue interest at the Post-Default Rate.
(c) Due Dates. Accrued interest on Base Rate Loans shall be payable monthly on the
first day of each month commencing on August 1, 2006, and accrued interest on each LIBOR Loan shall
be payable on the last day of the Interest Period therefor and, if such Interest Period is longer
than three months at three-month intervals following the first day of such Interest Period, except
that interest payable at the Post-Default Rate shall be payable from time to time on demand and
interest on any LIBOR Loan that is converted into a Base Rate Loan (pursuant to Section
5.04) shall be payable on the date of conversion (but only to the extent so converted). Any
accrued and unpaid interest on the Revolving Credit Loans on the Termination Date shall be paid on
such date. Accrued interest on Swing Line Loans shall be paid pursuant to Section 3.01(c).
(d) Determination of Rates. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall notify the Lenders to
which such interest is payable and the Borrower thereof. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall, except in cases of manifest error, be final,
conclusive and binding on the parties.
Revolving Credit Agreement – Page 37
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments. Except to the extent otherwise provided herein, all payments
of principal, interest and other amounts to be made by the Borrower under this Agreement and the
Letter of Credit Agreements shall be made in Dollars, in immediately available funds, to the
Administrative Agent at such account as the Administrative Agent shall specify by notice to the
Borrower from time to time, not later than 11:00 a.m. (Central time) on the date on which such
payments shall become due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). Such payments shall be made without (to the
fullest extent permitted by applicable law) defense, set-off or counterclaim. Each payment
received by the Administrative Agent under this Agreement for account of a Lender shall be paid
promptly to such Lender in immediately available funds. Except as otherwise provided in the
definition of “Interest Period”, if the due date of any payment under this Agreement would
otherwise fall on a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall be payable for any principal so extended for the period
of such extension. At the time of each payment to the Administrative Agent of any principal of or
interest on any borrowing, the Borrower shall notify the Administrative Agent of the Loans to which
such payment shall apply. In the absence of such notice the Administrative Agent may specify the
Loans to which such payment shall apply, but to the extent possible such payment or prepayment will
be applied first to the Loans comprised of Base Rate Loans.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise provided herein each
Lender agrees that: (i) each borrowing from the Lenders under Section 2.01 and each
continuation and conversion under Section 2.02 shall be made from the Lenders pro rata in
accordance with their Percentage Share, each payment of commitment fee or other fees under
Section 2.05(a) and Section 2.05(b)(i) shall be made for account of the Lenders pro
rata in accordance with their Percentage Share, and each termination or reduction of the amount of
the Aggregate Revolving Credit Commitments under Section 2.03(b) (subject to the last
sentence thereof) shall be applied to the Commitment of each Lender, pro rata according to the
amounts of its respective Commitment; (ii) each payment of principal of Loans by the Borrower shall
be made for account of the Lenders pro rata in accordance with the respective unpaid principal
amount of the Loans held by the Lenders; and (iii) each payment of interest on Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of
interest due and payable to the respective Lenders; and (iv) each reimbursement by the Borrower of
disbursements under the Letters of Credit shall be made for account of the Issuing Bank or, if
funded by the Lenders, pro rata for the account of the Lenders, in accordance with the amounts of
reimbursement obligations due and payable to each respective Lender.
Section 4.03 Computations. Interest on all LIBOR Loans shall be computed on the basis
of a year of 360 days and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable, unless such calculation would exceed
the Maximum Rate, in which case interest shall be calculated on the per annum basis of a year of
365 or 366 days, as the case may be. All computations of interest on Base Rate Loans
Revolving Credit Agreement – Page 38
and fees shall be computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed (including the first day but excluding the last day).
Section 4.04 Non-receipt of Funds by the Administrative Agent.
(a) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Loan or Letters of Credit that such Lender will not make available to the Administrative Agent such
Lender’s share of such Loan or Letters of Credit, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Sections 2.01(b),
2.02(f) and 2.10(c) and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of
the applicable Loan or Letters of Credit available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Loan or Letters of Credit to the Administrative Agent, then
the amount so paid shall constitute such Lender’s Loan included in such Loan or Letters of Credit.
Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.
(b) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.
In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or the Issuing Bank, with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 4.05 Set-off, Sharing of Payments, Etc. (a) The Borrower agrees that, in
addition to (and without limitation of) any right of set-off, bankers’ lien or counterclaim a
Lender may otherwise have, each Lender, the Issuing Bank, and each of their respective Affiliates
shall have the right and be entitled (after consultation with the Administrative Agent), at its
option, to set off and apply any and all deposits (general or special, time or demand, provisional
or final, in
Revolving Credit Agreement – Page 39
whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the Issuing Bank, irrespective of
whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the Issuing Bank different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank or
their respective Affiliates may have. Each Lender and the Issuing Bank agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or other obligations
hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such obligations greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the
Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:
(x) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and
(y) the provisions of this paragraph shall not be construed to apply to (A) any payment
made
by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Exposure to any assignee or participant, other than to the
Borrower or any Subsidiary thereof (as to which the provisions of this section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
Revolving Credit Agreement – Page 40
ARTICLE V
Yield Protection
Section 5.01 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR
Rate) or the Issuing Bank;
(ii) subject any Lender or the Issuing Bank to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan
made by it, or change the basis of taxation of payments to such Lender or the Issuing Bank in
respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 5.02 and
the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the
Issuing Bank); or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase
the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or
to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender or the
Issuing Bank, the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate on an after-tax basis such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Bank determines that any
Change in Law affecting such Lender or the Issuing Bank or any lending office of such Lender or
such Lender’s or the Issuing Bank’s holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital
or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s
holding company with respect to capital adequacy), then from time to time the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional
Revolving Credit Agreement – Page 41
amount or amounts as will compensate on an after-tax basis
such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in clause (a) or (b) of this
Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or
the Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased
costs incurred or reductions suffered more than nine months prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
Section 5.02 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the
Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
clause (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Bank, within 10 days after demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability
Revolving Credit Agreement – Page 42
delivered to the Borrower by a Lender or the Issuing Bank (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the Issuing Bank, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States of America, any Foreign Lender shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the recipient) on
or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender
is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly
completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax duly completed together
Revolving Credit Agreement – Page 43
with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the
Issuing Bank determines, in its sole judgment, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the Issuing Bank, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Bank, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Bank in the event the
Administrative Agent, such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the Administrative Agent,
any Lender or the Issuing Bank to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.
Section 5.03 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 5.01, or requires the Borrower to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 5.02, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 5.01 or 5.02, as
the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section
5.01, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 5.02, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 12.05(b)), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 12.05(b)(iv);
Revolving Credit Agreement – Page 44
(ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and participations in LC Exposure, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any amounts
under Section 5.04) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under
Section 5.01 or payments required to be made pursuant to Section 5.02, such
assignment will result in a reduction in such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
(c) Time Limited. Notwithstanding anything to the contrary contained in this
Article V, the Borrower shall not be required to reimburse or pay any costs or expenses to
any Lender as required by such sections which have accrued more than 180 days prior to such
Lender’s giving notice to the Borrower that such Lender has suffered or incurred such costs or
expenses.
(d) Non Discriminatory Basis. None of the Lenders shall be permitted to pass through
to the Borrower costs and expenses under this Article V which are not also passed through
by such Lender to other customers of such Lender similarly situated when such customer is subject
to documents containing similar provisions as those contained in such Sections.
Section 5.04 Compensation. The Borrower shall pay to each Lender within 30 days of
receipt of written request of such Lender (which request shall set forth, in reasonable detail, the
basis for requesting such amounts and which shall be conclusive and binding for all purposes
provided that such determinations are made on a reasonable basis), such amount or amounts as shall
compensate it for any loss, cost, expense or liability which such Lender reasonably determines are
attributable to:
(a) any payment, prepayment or conversion of a LIBOR Loan for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10.02) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including but not limited to, the failure of
any of the conditions precedent specified in Article V to be satisfied) to borrow, continue
or convert a LIBOR Loan from such Lender on the date for such borrowing, continuation or conversion
specified in the relevant notice given pursuant to Section 2.02(c); provided, however, that
where such failure is attributable to the circumstances set forth in Sections 5.01(b),
5.02 or 5.03 with respect to such Lender’s inability or determination not to
make LIBOR Loans, no such compensation shall be required. Without limiting the effect of the
preceding sentence, such compensation shall include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount so paid, prepaid or
converted or not borrowed for the period from the date of such payment, prepayment or
Revolving Credit Agreement – Page 45
conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for such Loan which would have commenced on the date
specified for such borrowing) at the applicable rate of interest for such Loan provided for herein
over (ii) the interest component of the amount such Lender would have bid in the London interbank
market for Dollar deposits of leading banks in amounts comparable to such principal amount and with
maturities comparable to such period (as reasonably determined by such Lender).
ARTICLE VI
Conditions Precedent
Section 6.01 Initial Funding. The obligation of the Lenders to make the Initial
Funding is subject to the receipt by the Administrative Agent and the Lenders of all fees payable
pursuant to Section 2.05 and the Fee Letter on or before the Closing Date and the receipt
by the Administrative Agent of the following documents (in sufficient original counterparts for
each Lender) and satisfaction of the other conditions provided in this Section 6.01, each
of which shall be satisfactory to the Administrative Agent in form and substance:
(a) The Guaranty Agreement, the Security Agreement, and all other Loan Documents, duly
executed by the appropriate parties thereto listed on the Closing Checklist attached hereto as
Exhibit E.
(b) A certificate of the Secretary or an Assistant Secretary of the Borrower setting forth (i)
resolutions of its board of directors with respect to the authorization of the Borrower to execute
and deliver the Loan Documents to which it is a party and to enter into the transactions
contemplated in those documents, (ii) the officers of the Borrower (y) who are authorized to sign
the Loan Documents to which the Borrower is a party and (z) who will, until replaced by another
officer or officers duly authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection with this Agreement,
the other Loan Documents and the transactions contemplated hereby and thereby, (iii) specimen
signatures of the authorized officers, and (iv) the certificate of incorporation and the bylaws of
the Borrower certified to be correct and complete copies. The Administrative Agent and the Lenders
may conclusively rely on such certificate until the Administrative Agent receives notice in writing
from the Borrower to the contrary.
(c) A certificate of the Secretary or an Assistant Secretary of each Guarantor setting forth
(i) resolutions of its board of directors or other governing body with respect to the authorization
of such Guarantor to execute and deliver the Loan Documents to which it is a party and to enter
into the transactions contemplated in those documents, (ii) the officers of such Guarantor (y) who
are authorized to sign the Loan Documents to which such Guarantor is a party and (z) who will,
until replaced by another officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and other
communications in connection with this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby, (iii) specimen signatures of the authorized officers,
and (iv) the articles or certificate of incorporation, bylaws, partnership agreements, or other
organizational documents of such Guarantor certified to be correct and complete copies.
Revolving Credit Agreement – Page 46
The
Administrative Agent and the Lenders may conclusively rely on such certificate until they receive
notice in writing from such Guarantor to the contrary.
(d) Certificates of the appropriate state agencies with respect to the existence,
qualification and good standing of the Borrower and Guarantors.
(e) Borrower shall have provided a pro forma Covenant Compliance Certificate based on
Borrower’s quarterly financial statements for the fiscal quarter ending March 31, 2006.
(f) Opinions of legal counsel to the Borrower and the Guarantors, in form and substance
satisfactory to the Administrative Agent, as to such matters incident to the transactions herein
contemplated as the Administrative Agent may reasonably request.
(g) Copies of the fully executed Senior Unsecured Note Indenture and the documents related
thereto and evidence of the closing of the Senior Unsecured Note Indenture and satisfactory
evidence of commitments to purchase, pursuant thereto, not less than the full amount of the Senior
Unsecured Debt.
(h) Mortgages and deeds of trust and any other Loan Documents related to the real Property to
reflect the transactions described herein.
(i) All policies of title insurance, in form and substance satisfactory to Administrative
Agent, related to the real Property.
(j) Execution by Xxxxx Fargo, Administrative Agent and the Required Lenders of payoff letters.
(k) Receipt of a copy of the Preferred Stock Purchase Agreement dated as of June 12, 2006
between Borrower and Ares.
(l) Borrower shall have furnished to Administrative Agent, in form, content and amounts and
with companies satisfactory to Administrative Agent, liability insurance with coverage acceptable
to Administrative Agent and naming Administrative Agent as additional insured, and casualty
insurance policies with loss payable clauses in favor of Administrative Agent, relating to the
assets and properties of Borrower and its Subsidiaries.
(m) Such other documents, agreements, and instruments as the Administrative Agent or any
Lender or special counsel to the Administrative Agent may reasonably request.
Section 6.02 Initial and Subsequent Loans and Letters of Credit. The obligation of
the Lenders to make Loans (except as to Loans automatically funded pursuant to Section
2.10(d)) to the Borrower upon the occasion of each borrowing hereunder and to issue, renew,
extend or reissue Letters of Credit for the account of the Borrower (including the Initial
Funding) is subject to the further conditions precedent that, as of the date of such Loans and
after giving effect thereto:
(a) no Default shall exist;
Revolving Credit Agreement – Page 47
(b) no Material Adverse Effect shall have occurred and be continuing; and
(c) the representations and warranties made by the Borrower in Article VII and by the
Borrower and each Guarantor in the Loan Documents shall be true on and as of the date of the making
of such Loans or issuance, renewal, extension or reissuance of a Letter of Credit with the same
force and effect as if made on and as of such date and immediately after giving effect to such new
borrowing, except to the extent such representations and warranties are set forth as being related
only to a specified date (e.g. “as of the Closing Date”) and were true and correct as of such
specified date or the Required Lenders may expressly consent in writing to the contrary.
Each request for a borrowing or issuance, renewal, extension or reissuance of a Letter of Credit by
the Borrower hereunder shall constitute a certification by the Borrower to the effect set forth in
Section 6.02(c) (both as of the date of such notice and, unless the Borrower otherwise
notifies the Administrative Agent prior to the date of and immediately following such borrowing or
issuance, renewal, extension or reissuance of a Letter of Credit as of the date thereof).
Section 6.03 Conditions Precedent for the Benefit of Lenders. All conditions
precedent to the obligations of the Lenders to make any Loan are imposed hereby solely for the
benefit of the Lenders, and no other Person may require satisfaction of any such condition
precedent or be entitled to assume that the Lenders will refuse to make any Loan in the absence of
strict compliance with such conditions precedent.
Section 6.04 Determinations Under Section 6.01. For purposes of determining
compliance with the conditions specified in Section 6.01, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender with respect to any Loan or issuance of
any Letters of Credit, prior to the Closing Date, specifying its objection thereto and such Lender
shall not have made available to the Administrative Agent such Lender’s ratable portion of such
Loan or issuance of any Letters of Credit.
Section 6.05 No Waiver. No waiver of any condition precedent shall preclude the
Administrative Agent or the Lenders from requiring such condition to be met prior to making any
subsequent Loan or preclude the Lenders from thereafter declaring that the failure of the Borrower
to satisfy such condition precedent constitutes a Default.
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and the Lenders that (each
representation and warranty herein is given as of the Closing Date and shall be deemed repeated and
reaffirmed on the dates of each borrowing and issuance, renewal, extension or reissuance of a
Letter of Credit to the extent provided in Section 6.02):
Revolving Credit Agreement – Page 48
Section 7.01 Corporate Existence. Each of the Borrower and each Subsidiary: (i) is a
corporation, limited partnership or limited liability company duly organized, legally existing and
in good standing, if applicable, under the laws of the jurisdiction of its organization; (ii) (x)
has all requisite power (corporate or otherwise), and (y) has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on its business as now
being or as proposed to be conducted; and (iii) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such qualification necessary, except in each
case referred to in clauses (ii)(y) and (iii), to the extent the failure so to do
could not reasonably be expected to have a Material Adverse Effect.
Section 7.02 Financial Condition. The audited consolidated balance sheet of Borrower
as at December 31, 2005 and the related consolidated statement of income, stockholders’ equity and
cash flow for the fiscal year ended on said date, with the opinion thereon of a Registered Public
Accounting Firm heretofore furnished to each of the Lenders, are complete and correct and fairly
present the consolidated financial condition of Borrower and its Consolidated Subsidiaries as at
said dates and the results of its operations for the fiscal year, all in accordance with GAAP, as
applied on a consistent basis. The unaudited consolidated balance sheet of the Borrower as at
March 31, 2006 and the related consolidated statement of income, stockholders’ equity and cash flow
for the portion of the fiscal year ended on such date are complete and correct and fairly present
the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at said
date, all in accordance with GAAP, as applied on a consistent basis (subject to normal year-end
adjustments). Neither the Borrower nor any Subsidiary has on the Closing Date any material Debt,
contingent liabilities, liabilities for taxes, forward or long-term commitments other than those
customary in Borrower’s business or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the Financial Statements or in
Schedule 7.02. Since March 31, 2006, there has been no change or event that could
reasonably be expected to have a Material Adverse Effect. Since the date of the Financial
Statements, neither the Properties of the Borrower or any Subsidiary have been affected as a result
of any fire, explosion, earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of Property or cancellation of contracts, permits or
concessions by any Governmental Authority, riot, activities of armed forces or acts of God or of
any public enemy where such event or matter could reasonably be expected to result in a Material
Adverse Effect. Since the date of the Financial Statements, no Internal Control Event has
occurred.
Section 7.03 Litigation. Except as disclosed to the Lenders in Schedule 7.03
hereto, at the Closing Date there is no litigation, legal, administrative or arbitral
proceeding, investigation or other action of any nature pending or, to the knowledge of the
Borrower
threatened against or affecting the Borrower or any Subsidiary which can reasonably be
expected to result in any judgment or liability against the Borrower or any Subsidiary not fully
covered by insurance (except for normal deductibles) and which could reasonably be expected to have
a Material Adverse Effect.
Section 7.04 No Breach. Neither the execution and delivery of the Loan Documents, nor
compliance with the terms and provisions hereof will conflict with or result in a breach of, or
require any consent which has not been obtained as of the Closing Date under, the respective
charter or bylaws, partnership agreement, operating agreement or other organizational
Revolving Credit Agreement – Page 49
documents, as
the case may be, of the Borrower or any Subsidiary, or, in any material respect, any Governmental
Requirement or any material agreement or instrument to which the Borrower or any Subsidiary is a
party or by which it is bound or to which it or its Properties are subject, or constitute a default
under any such agreement or instrument, or result in the creation or imposition of any material
Lien upon any of the revenues or assets of the Borrower or any Subsidiary pursuant to the terms of
any such agreement or instrument other than the Liens created by the Loan Documents.
Section 7.05 Authority. The Borrower and each Subsidiary have all necessary power
(corporate or otherwise) and authority to execute, deliver and perform its obligations under the
Loan Documents to which it is a party; and the execution, delivery and performance by the Borrower
and each Subsidiary of the Loan Documents to which it is a party, have been duly authorized by all
necessary action (corporate or otherwise) on its part; and the Loan Documents constitute the legal,
valid and binding obligations of the Borrower and each Subsidiary, enforceable in accordance with
their terms.
Section 7.06 Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority are necessary for the execution, delivery or
performance by the Borrower or any Subsidiary of the Loan Documents or for the validity or
enforceability thereof, except for (i) the recording and filing of the Loan Documents as required
by this Agreement and (ii) approvals by the applicable Governmental Authorities.
Section 7.07 Use of Proceeds. The proceeds of the Loans shall be used to (i)
refinance certain existing indebtedness of the WCA Waste Systems, (ii) pay fees and expenses
incurred in connection with the transactions contemplated hereby, (iii) provide working capital and
general business purpose needs of the Borrower and the Guarantors (other than Holdings), (iv) the
funding of Expansion Expenditures, and Capital Expenditures permitted hereunder, and (v) the
funding of certain other expenditures approved by the Administrative Agent from time to time. The
Letters of Credit shall be used for general business purposes of the Borrower and the Guarantors
(other than Holdings). The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock (within the meaning of Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and no part of the proceeds of any Loan hereunder
will be used, directly or indirectly, to purchase or carry any margin stock.
Section 7.08 ERISA.
(a) The Borrower and each ERISA Affiliate have complied in all material respects with ERISA
and, where applicable, the Code regarding each Plan.
(b) Each Plan and each Welfare Plan is, and has been, maintained in substantial compliance
with ERISA and, where applicable, the Code.
(c) No act, omission or transaction has occurred which could reasonably be expected to result
in imposition on the Borrower or any ERISA Affiliate (whether directly or indirectly) of (i) either
a civil penalty assessed pursuant to Section 502(c), (i), (l) or (m) of
Revolving Credit Agreement – Page 50
ERISA or a tax imposed
pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of fiduciary duty liability damages
under Section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or any trust created under any such Plan
has been terminated within the preceding six calendar years. No liability to the PBGC (other than
for the payment of current premiums which are not past due) by the Borrower or any ERISA Affiliate
has been or is expected by the Borrower or any ERISA Affiliate to be incurred with respect to any
Plan. No ERISA Event with respect to any Plan (other than a Multiemployer Plan) has occurred.
(e) Full payment when due has been made of all amounts which the Borrower or any ERISA
Affiliate is required under the terms of each Plan and each Welfare Plan or applicable law to have
paid as contributions to such Plan or Welfare Plan, and no accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with
respect to any Plan.
(f) The actuarial present value of the benefit liabilities under each Plan which is subject to
Title IV of ERISA does not, as of the end of the Borrower’s most recently ended fiscal year, exceed
the current value of the assets (computed on a plan termination basis in accordance with Title IV
of ERISA) of such Plan allocable to such benefit liabilities. The term “actuarial present value of
the benefit liabilities” shall have the meaning specified in Section 4041 of ERISA.
(g) None of the Borrower or any ERISA Affiliate sponsors, maintains, or contributes to an
employee welfare benefit plan, as defined in Section 3(1) of ERISA, including, without limitation,
any such plan maintained to provide benefits to former employees of such entities, that may not be
terminated by the Borrower or any ERISA Affiliate in its sole discretion at any time without any
liability that could reasonably be expected to have a Material Adverse Affect.
(h) None of the Borrower or any ERISA Affiliate sponsors, maintains or contributes to, or has
at any time in the preceding six calendar years, sponsored, maintained or contributed to, any
Multiemployer Plan.
(i) None of the Borrower or any ERISA Affiliate is required to provide security under Section
401(a)(29) of the Code due to a Plan amendment that results in an increase in current liabilities
of the Plan.
Section 7.09 Taxes. Each of the Borrower and its Subsidiaries has filed or obtained
extensions for filing of all United States Federal income tax returns and all other tax returns
which are required to be filed by them and have paid all material taxes shown to be due pursuant to
such returns or pursuant to any assessment received by the Borrower or any Subsidiary, except for
any taxes which are being contested in good faith by appropriate proceedings and for which adequate
reserves are being maintained in accordance with GAAP. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes and other governmental charges are,
in the opinion of the Borrower, adequate. No tax lien has been filed
Revolving Credit Agreement – Page 51
and, to the knowledge of the
Borrower, no claim is being asserted with respect to any such tax, fee or other charge.
Section 7.10 Titles, etc. Except as set forth in Schedule 7.10:
(a) Each of the Borrower and its Subsidiaries has good and defensible title to its material
(individually or in the aggregate) Properties, free and clear of all Liens, except Liens permitted
by Section 9.02. Material Property held by the Borrower or its Subsidiaries under leases
or similar arrangements are listed in item 2 of Schedule 7.10.
(b) All material leases and agreements necessary for the conduct of the business of the
Borrower and its Subsidiaries are valid and subsisting, in full force and effect and there exists
no default or event or circumstance which with the giving of notice or the passage of time or both
would give rise to a default under any such lease or leases, which could reasonably be expected to
result in a Material Adverse Effect.
(c) The rights, Properties and other assets presently owned, leased or licensed by the
Borrower and its Subsidiaries including, without limitation, all easements and rights of way,
include all rights, Properties and other assets necessary to permit the Borrower and its
Subsidiaries to conduct their business in all material respects in the same manner as its business
has been conducted prior to the Closing Date.
(d) All of the assets and Properties of the Borrower and its Subsidiaries which are material
to the operation of its business are in good working condition, ordinary wear and tear excepted,
and are maintained in accordance with prudent business standards.
Section 7.11 No Material Misstatements. No written information, statement, exhibit,
certificate, document or report, taken as a whole, furnished to the Administrative Agent and the
Lenders (or any of them) by the Borrower or any Subsidiary in connection with the negotiation of
this Agreement contained any material misstatement of fact or omitted to state a material fact or
any fact necessary to make the statement contained therein not materially misleading in the light
of the circumstances in which made and with respect to the Borrower and its Subsidiaries taken as a
whole. To the best knowledge of the Borrower after due inquiry, as of the Closing Date there is no
fact peculiar to the Borrower or any Subsidiary which has a Material Adverse Effect or in the
future is reasonably likely to have (so far as the Borrower can now foresee) a Material Adverse
Effect and which has not been set forth in this Agreement or the other documents, certificates and
statements furnished to the Administrative Agent by or on behalf of the Borrower or any Subsidiary
prior to, or on, the Closing Date in connection with the transactions contemplated hereby.
Section 7.12 Investment Company Act. Neither the Borrower nor any Subsidiary is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of
the Investment Company Act of 1940, as amended.
Section 7.13 Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a “holding company,” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” or a
Revolving Credit Agreement – Page 52
“public utility” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 7.14 Subsidiaries. Except as set forth on Schedule 7.14, the Borrower
has no Subsidiaries.
Section 7.15 Location of Business and Offices. The Borrower’s principal place of
business and chief executive offices are located at the address stated on the signature page of
this Agreement. As of the Closing Date, the principal place of business and chief executive office
of each Subsidiary are located at the addresses stated on Schedule 7.14.
Section 7.16 Defaults. Neither the Borrower nor any Subsidiary is in default nor has
any event or circumstance occurred which, but for the expiration of any applicable grace period or
the giving of notice, or both, would constitute a default under any material agreement or
instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any
Subsidiary is bound which default would have a Material Adverse Effect. No Default hereunder has
occurred and is continuing.
Section 7.17 Environmental Matters. Except as would not reasonably be expected to
have a Material Adverse Effect (or with respect to clauses (c) and (d) below, where
the failure to take such actions would not reasonably be expected to have a Material Adverse
Effect), to the best knowledge of the Borrower, after due inquiry:
(a) Neither any Property of the Borrower or any Subsidiary nor the operations conducted
thereon violate any order or requirement of any court or Governmental Authority or any
Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the Borrower or any
Subsidiary nor the operations currently conducted thereon or, to the best knowledge of the
Borrower, by any prior owner or operator of such Property or operation, are in violation of or
subject to any existing, pending or threatened action, suit, investigation, inquiry or proceeding
by or before any court or Governmental Authority or to any remedial obligations under Environmental
Laws;
(c) All transfer and disposal permits, licenses or similar authorizations, if any, required to
be obtained or filed in connection with the operation or use of any and all Property of the
Borrower and each Subsidiary, including without limitation past or present treatment, storage,
disposal or release of a hazardous substance or solid waste into the environment, are set forth on
Schedule 7.17 and have been duly obtained or filed, or to the extent not obtained or filed,
will be obtained or filed in the ordinary course of business, and the Borrower and each
Subsidiary are in compliance with the terms and conditions of all such notices, permits,
licenses and similar authorizations;
(d) All hazardous substances, solid waste, and oil and gas exploration and production wastes,
if any, generated at any and all Property of the Borrower or any Subsidiary have in the past been
transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an
imminent and substantial endangerment to public health or welfare or the environment, and, to the
best knowledge of the Borrower, all such transport carriers and
Revolving Credit Agreement – Page 53
treatment and disposal facilities
have been and are operating in compliance with Environmental Laws and so as not to pose an imminent
and substantial endangerment to public health or welfare or the environment, and are not the
subject of any existing, pending or threatened action, investigation or inquiry by any Governmental
Authority in connection with any Environmental Laws;
(e) The Borrower has taken all steps reasonably necessary to determine and based on such steps
and due inquiry has no reason to believe that any hazardous substances, solid waste, or oil and gas
exploration and production wastes, have been disposed of or otherwise released or that there has
been any threatened release of any hazardous substances on or to any Property of the Borrower or
any Subsidiary, in each case except in compliance with Environmental Laws and so as not to pose an
imminent and substantial endangerment to public health or welfare or the environment;
(f) To the extent applicable, all Property of the Borrower and each Subsidiary currently
satisfies all design, operation, and equipment requirements imposed by the Environmental Laws
applicable to the Borrower and its Subsidiaries during the term of this Agreement, and the Borrower
does not have any reason to believe that such Property, to the extent subject to Environmental
Laws, will not be able to maintain compliance with Environmental Laws requirements during the term
of this Agreement;
(g) Neither the Borrower nor any Subsidiary has any known contingent liability in connection
with any release or threatened release of any oil, hazardous substance or solid waste into the
environment; and
(h) (i) no portion of the real Property of the Borrower or any Subsidiary has been used for
the handling, processing, storage or disposal of hazardous substances; and no underground tank or
other underground storage receptacle for hazardous substances is located on such Properties; (ii)
in the course of any activities conducted by the Borrower, or operators of such real Property, no
hazardous substances have been generated or are being used on such Properties; (iii) there have
been no unpermitted releases or threatened releases of hazardous substances on, upon, into or from
the real Property of the Borrower or any Subsidiary; (iv) to the best of the Borrower’s knowledge,
there have been no releases on, upon, from or into any real property in the vicinity of such real
Property, which, through soil or groundwater contamination, may have come to be located on such
Properties; and (v) in addition, when required under applicable Environmental Laws, any hazardous
substances that have been generated on such real Property have been transported offsite only by
carriers having an identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities, to the best of
the Borrower’s knowledge, have been and are operating in material compliance with such permits
and applicable Environmental Laws.
Section 7.18 Compliance with the Law. Neither the Borrower nor any Subsidiary has
violated any Governmental Requirement or failed to obtain any license, permit, franchise or other
governmental authorization necessary for the ownership of any of its Properties or the conduct of
its business, which violation or failure could reasonably be expected to have (in the
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event such
violation or failure were asserted by any Person through appropriate action) a Material Adverse
Effect.
Section 7.19 Insurance. Schedule 7.19 attached hereto contains an accurate
and complete description of all material policies of fire, liability, workmen’s compensation and
other forms of insurance owned or held by the Borrower and each Subsidiary as of the Closing Date.
As of such date, all such policies are in full force and effect, all premiums with respect thereto
covering all periods up to and including the date of the closing have been paid, and no notice of
cancellation or termination has been received with respect to any such policy. Such policies are
sufficient for compliance with all requirements of law and of all agreements to which the Borrower
or any Subsidiary is a party; are valid, outstanding and enforceable policies; provide adequate
insurance coverage in at least such amounts and against at least such risks (but including in any
event public liability) as are usually insured against in the same general area by companies
engaged in the same or a similar business for the assets and operations of the Borrower and each
Subsidiary; will remain in full force and effect through the respective dates set forth in
Schedule 7.19 without the payment of additional premiums; and will not in any way be
affected by, or terminate or lapse by reason of, the transactions contemplated by this Agreement.
Schedule 7.19 identifies all material risks, if any, as to which the Borrower and its
Subsidiaries and their respective Board of Directors or officers have designated themselves as
being self insured as of the Closing Date. Neither the Borrower nor any Subsidiary has been unable
to obtain any insurance with respect to its assets or operations, nor has its coverage been limited
below usual and customary policy limits, by an insurance carrier to which it has applied for any
such insurance or with which it has carried insurance during the last three years.
Section 7.20 Restriction on Liens. Other than the Senior Unsecured Note Indenture,
this Agreement and the Loan Documents, neither the Borrower nor any of its Subsidiaries is a party
to any agreement or arrangement (other than this Agreement and the other Loan Documents, and any
contracts or agreements in respect of liens permitted under Section 9.02), or subject to
any order, judgment, writ or decree, which either restricts or purports to restrict its ability to
grant Liens to other Persons on or in respect of their respective assets or Properties.
Section 7.21 Material Agreements. Set forth on Schedule 7.21 hereto is a
complete and correct list of all material agreements, indentures, purchase agreements, obligations
in respect of letters of credit, guarantees, joint venture agreements, and other instruments in
effect or to be in effect as of the Closing Date providing for, evidencing, securing or otherwise
relating to any Debt of the Borrower or any of its Subsidiaries, and all material obligations of
the Borrower or any of its Subsidiaries to issuers of material surety or appeal bonds issued for
account of the Borrower or any such Subsidiary, and subject to Schedule 7.21 such list
correctly sets forth the names of the debtor and creditor with respect to the Debt obligations
outstanding or
to be outstanding and the Property subject to any Lien securing such Debt obligation. The
Borrower has heretofore delivered to the Administrative Agent and the Lenders a complete and
correct copy of all such material credit agreements, indentures, purchase agreements, contracts,
letters of credit, guarantees, joint venture agreements, or other instruments, including any
modifications or supplements thereto, as in effect on the Closing Date.
Revolving Credit Agreement – Page 55
ARTICLE VIII
Affirmative Covenants
The Borrower covenants and agrees that, so long as any of the Commitments are in effect and
until payment in full of all Obligations:
Section 8.01 Reporting Requirements. The Borrower shall deliver, or shall cause to be
delivered, to the Administrative Agent with sufficient copies of each for the Lenders:
(a) Annual Financial Statements of Borrower. As soon as available and in any event
within 90 days after the end of each fiscal year of Borrower, the audited consolidated statements
of income, stockholders’ equity, and cash flows of Borrower and its Consolidated Subsidiaries
(including the Borrower) for such fiscal year, and the related audited consolidated balance sheets
of Borrower and its Consolidated Subsidiaries (including the Borrower) as at the end of such fiscal
year, and setting forth in each case in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by the related opinion of a Registered Public Accounting
Firm of recognized national standing acceptable to the Administrative Agent which opinion shall
state that said financial statements fairly present the consolidated financial condition and
results of operations of Borrower and its Consolidated Subsidiaries (including the Borrower) as at
the end of, and for, such fiscal year and that such financial statements have been prepared in
accordance with GAAP, except for such changes in such principles with which such Registered Public
Accounting Firm shall have concurred and such opinion shall not contain a “going concern” or like
qualification or exception or other material exception.
(b) Annual Financial Statements of Borrower. If Borrower has any Subsidiary not a
party to the Loan Documents, then, as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, unaudited consolidating, statements of income,
stockholders equity, and cash flows of the Borrower and its Consolidated Subsidiaries for such
fiscal year, and the related unaudited consolidating balance sheets of the Borrower and its
Consolidated Subsidiaries as at the end of such fiscal year, and setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year, and accompanied by the
certificate of a Responsible Officer, which certificate shall state that said financial statements
fairly present the consolidating financial condition and results of operations of the Borrower and
its Consolidated Subsidiaries as at the end of, and for, such fiscal year, and that such financial
statements have been prepared in accordance with GAAP.
(c) Quarterly Financial Statements. As soon as available and in any event within 45
days after the end of each fiscal quarterly period of each fiscal year of the Borrower,
consolidated and consolidating statements of income, retained earnings, and cash
flows of the Borrower and its Consolidated Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of such period, and the related
consolidated and consolidating balance sheets as at the end of such period, and setting forth in
each case in comparative form the corresponding figures for the corresponding period in the
preceding fiscal year, accompanied by the certificate of a Responsible Officer, which certificate
shall state that said financial statements fairly present the consolidated and consolidating
financial condition and
Revolving Credit Agreement – Page 56
results of operations of the Borrower and its Consolidated Subsidiaries in
accordance with GAAP, as at the end of, and for, such period (subject to normal year-end audit
adjustments).
(d) Annual Projections. As soon as available and in any event not later than 60 days
after the end of each fiscal year of the Borrower, beginning with the fiscal year beginning January
1, 2007, an annual budget of the Borrower and its Consolidated Subsidiaries for the succeeding
fiscal year, setting forth in reasonable detail, the projected revenues and expenses of the
Borrower and its Consolidated Subsidiaries, all in form satisfactory to the Lenders; provided,
however, that Borrower may include in any projections customary explanations and disclaimers
regarding any such projections, and provided further, such projections are based on the good faith
determinations of such information believed by the Borrower to be reasonable at the time.
(e) Notice of Default, Etc. Promptly after the Borrower knows that any Default or any
Material Adverse Effect has occurred, a notice of such Default or Material Adverse Effect,
describing the same in reasonable detail and the action the Borrower proposes to take with respect
thereto.
(f) Other Accounting Reports. Promptly upon receipt thereof, a copy of each
management letter submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual audit made by them of the books of the Borrower and its Subsidiaries,
and a copy of any response by the Borrower or any Subsidiary of the Borrower, or the Board of
Directors of the Borrower or any Subsidiary of the Borrower, to such letter.
(g) SEC Filings, Etc. From and after such time, if any, as Borrower files a
registration statement with the SEC or otherwise becomes subject to public company reporting
obligations under the Securities Exchange Act of 1934, as amended, promptly upon its becoming
available, each financial statement, report, notice or proxy statement sent by the Borrower to
stockholders generally and each regular or periodic report and any registration statement,
prospectus or written communication (other than transmittal letters) in respect thereof filed by
the Borrower with or received by the Borrower in connection therewith from any securities exchange
or the SEC, including without limitation, annual airspace estimates; provided, however, that the
requirement to deliver the Borrower’s quarterly reports (Form 10-Q) and annual reports (Form 10-K)
to be filed with the SEC may be satisfied by notifying the Administrative Agent and the Lenders
that (i) such documents have been posted on the Borrower’s website on the Internet at the website
address listed on Schedule 7.14 or (ii) a link thereto can be found on the aforementioned
website address and further provided that paper copies will be provided upon request of the
Administrative Agent.
(h) Notices Under Other Loan Agreements. Concurrent with the furnishing thereof,
copies of any statement or notice furnished to any Person relating to any
default or event of default or the waiver thereof under any other indenture, loan or credit or
other similar agreement.
(i) Acquisition Target Financial Statements. In connection with the acquisition of
either a controlling interest in a Person or a controlling interest in all or substantially all of
a Person’s assets, Borrower shall provide Administrative Agent with current
Revolving Credit Agreement – Page 57
financial information
and the Borrower’s financial and operational analysis regarding the Person and the Person’s assets
as Lenders shall request. Prior to delivery of such Person’s information to the Administrative
Agent, the Administrative Agent shall agree in writing to keep all such information confidential on
the same terms as agreed to between the Borrower and such Person.
(j) Other Matters. From time to time such other information regarding the business,
affairs or financial condition of the Borrower or any Subsidiary (including, without limitation,
any Plan or Multiemployer Plan and any reports or other information required to be filed under
ERISA) as any Lender or the Administrative Agent may reasonably request.
The Borrower will furnish to the Administrative Agent, at the time it furnishes each set of
financial statements pursuant to clause (a) or (b) above, a Compliance Certificate
executed by a Responsible Officer on behalf of the Borrower (i) certifying as to the matters set
forth therein and stating that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail), and (ii) setting forth in
reasonable detail the computations necessary to determine whether the Borrower is in compliance
with Sections 9.12, 9.13, 9.14 and 9.15 as of the end of the most
recently completed fiscal quarter or fiscal year.
Section 8.02 Litigation. The Borrower shall promptly give to the Administrative Agent
notice of: (a) all legal or arbitral proceedings, and of all proceedings before any Governmental
Authority materially affecting the Borrower or any Subsidiary, except proceedings in respect of
operating permits that are a normal part of Borrower’s and its Subsidiaries’ business, and (b) any
litigation or proceeding against or adversely affecting the Borrower or any Subsidiary in which the
amount involved is not covered in full by insurance (subject to normal and customary deductibles
and for which the insurer has not assumed the defense), or in which injunctive or similar relief is
sought, except in each case proceedings or other matters which would not reasonably be expected to
have a Material Adverse Effect, provided, however Borrower need not give notice of any proceedings
as to which it is not a party and that affects the Borrower’s and its Subsidiaries’ industry
generally. The Borrower will, and will cause each of its Subsidiaries to, promptly notify the
Administrative Agent and each of the Lenders of any claim not fully covered by insurance (subject
to normal deductibles), judgment, Lien or other encumbrance resulting from any litigation or other
proceeding and affecting any Property of the Borrower or any Subsidiary (other than Liens permitted
under Section 9.02) if the value of such claim, judgment, Lien, or other encumbrance
affecting such Property shall exceed $500,000.
Section 8.03 Maintenance, Etc.
(a) Generally. The Borrower shall and shall cause each Subsidiary to: (except for
mergers of Subsidiaries permitted under Section 9.08 and Transfers permitted under
Section 9.17) preserve and maintain its corporate existence and all of its material
rights, permits, licenses, privileges and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; keep books of record and account in which full, true and correct
entries will be made of all dealings or transactions in relation to its business and activities;
comply with all Governmental Requirements if failure to comply with such requirements is reasonably
expected to have a Material Adverse Effect; file all federal income tax returns and pay all amounts
shown
Revolving Credit Agreement – Page 58
thereon to be due, and pay and discharge all other material taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on any of its Property
prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained; upon reasonable notice and under conditions that do
not unreasonably interfere with the Borrower’s or any Subsidiaries’ business, permit
representatives of the Administrative Agent or any Lender, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect its Properties, and to
discuss its business and affairs with its officers, all to the extent reasonably requested by such
Lender or the Administrative Agent (as the case may be); and keep, or cause to be kept, insured by
financially sound and reputable insurers all Property of a character usually insured by Persons
engaged in the same or similar business similarly situated against loss or damage of the kinds and
otherwise as customarily insured against by such Persons and carry such other insurance as is
usually carried by such Persons including, without limitation, environmental risk insurance to the
extent reasonably available. The Borrower shall promptly obtain endorsements to such casualty
insurance policies naming “Comerica Bank, as Administrative Agent for the Secured Parties” as joint
loss payee and containing provisions that such policies will not be canceled without 30 days prior
written notice having been given by the insurance company to the Administrative Agent. The proceeds
received under any casualty insurance policy shall be used for restoration, repair or replacement
of the damaged Property; provided, however, if (i) an Event of Default exists, (ii) the insurance
proceeds are not used by the Borrower or its Subsidiary for restoration, repair or replacement of
the damaged Property or (iii) upon completion of such restoration, repair or replacement, there
remains any portion of the insurance proceeds, such proceeds shall be paid to the Administrative
Agent to apply to the payment of the Obligations in the manner set forth in Section
10.02(c).
(b) Proof of Insurance. Contemporaneously with the delivery of the financial
statements required by Section 8.01(a) to be delivered for each year, the Borrower will
furnish or cause to be furnished to the Administrative Agent a sufficient number of copies for each
Lender of certificate of insurance coverage from the insurer in form and substance satisfactory to
the Administrative Agent and, if requested, will furnish the Administrative Agent and the Lenders
copies of the applicable policies.
(c) Operation of Properties. The Borrower will and will cause each Subsidiary to
operate its Properties or cause such Properties to be operated in accordance with the usual and
customary practices of the industry and in compliance in all material respects with all applicable
contracts and agreements and all Governmental Requirements.
Section 8.04 Environmental Matters.
(a) Establishment of Procedures. The Borrower will and will cause each Subsidiary to
establish and implement such procedures as may be reasonably necessary to continuously determine
and assure that any failure of the following does not have a Material Adverse Effect: (i) all
Property of the Borrower and its Subsidiaries and the operations conducted thereon and other
activities of the Borrower and its Subsidiaries are in compliance with and do not violate the
requirements of any Environmental Laws, (ii) no oil, hazardous substances or solid wastes are
disposed of or otherwise released on or to any Property owned by
Revolving Credit Agreement – Page 59
any such party except in
compliance with Environmental Laws, (iii) no hazardous substance will be released on or to any such
Property in a quantity equal to or exceeding that quantity which requires reporting pursuant to
Section 103 of CERCLA, and (iv) no oil, oil and gas exploration and production wastes or hazardous
substance is released on or to any such Property so as to pose an imminent and substantial
endangerment to public health or welfare or the environment.
(b) Notice of Action. The Borrower will promptly notify the Administrative Agent and
the Lenders in writing of any threatened action, investigation or inquiry by any Governmental
Authority of which the Borrower has knowledge in connection with any Environmental Laws, excluding
action in respect of permit applications in the ordinary course of business and routine testing and
corrective action.
(c) Future Acquisitions. The Borrower will and will cause each Subsidiary to provide
environmental audits and tests as are usual and customary to be obtained for Properties of similar
use and purpose as reasonably requested by the Administrative Agent and the Required Lenders (or as
otherwise required to be obtained by the Administrative Agent or the Required Lenders by any
Governmental Authority) in connection with any future acquisitions of real Properties.
Section 8.05 Further Assurances. Upon the request of the Administrative Agent, the
Borrower will and will cause each Subsidiary to cure promptly any defects in the creation and
issuance of the Obligations and the execution and delivery of the Loan Documents and this
Agreement. The Borrower at its expense will and will cause each Subsidiary to promptly execute and
deliver to the Administrative Agent upon reasonable request all such other documents, agreements
and instruments to comply with the covenants and agreements of the Borrower or any Subsidiary, as
the case may be, in the Loan Documents and this Agreement, or to further evidence and more fully
describe the collateral intended as security for the Obligations, or to correct any omissions in
the Loan Documents, or to state more fully the security obligations set out herein or in any of the
Loan Documents, or to perfect, protect or preserve any Liens created pursuant to any of the Loan
Documents, or to make any recordings, to file any notices or obtain any consents, all as may be
necessary or appropriate in connection therewith.
Section 8.06 Performance of Obligations. The Borrower will pay the Obligations
according to the reading, tenor and effect thereof; and the Borrower will and will cause each
Subsidiary to do and perform every act and discharge all of the obligations to be performed and
discharged by them under the Loan Documents and this Agreement, at the time or times and in the
manner specified.
Section 8.07 ERISA Information and Compliance. The Borrower will furnish and will
cause any ERISA Affiliate to furnish to the Administrative Agent with sufficient copies to the
Lenders (i) promptly and in any event within 30 days after the receipt thereof by the Borrower or
any ERISA Affiliate, a copy of the annual actuarial report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8) of ERISA) of which is less than 90% or the
unfunded current liability of which exceeds $1,000,000, (ii) immediately upon becoming aware of the
occurrence of any ERISA Event or of any “prohibited transaction,” as described in Section 406 of
ERISA or in Section 4975 of the Code, in connection with any Plan or any trust created thereunder,
a written notice signed by a Responsible Officer specifying the nature
Revolving Credit Agreement – Page 60
thereof, what action the
Borrower or the ERISA Affiliate is taking or proposes to take with respect thereto, and, when
known, any action taken or proposed by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto, and (iii) immediately upon receipt thereof, copies of any notice of the
PBGC’s intention to terminate or to have a trustee appointed to administer any Plan. With respect
to each Plan (other than a Multiemployer Plan), the Borrower will, and will cause each ERISA
Affiliate to, (i) satisfy in full and in a timely manner, without incurring any late payment or
underpayment charge or penalty and without giving rise to any lien, all of the contribution and
funding requirements of Section 412 of the Code (determined without regard to subsections (d), (e),
(f) and (k) thereof) and of section 302 of ERISA (determined without regard to sections 303, 304
and 306 of ERISA), and (ii) pay, or cause to be paid, to the PBGC in a timely manner, without
incurring any late payment or underpayment charge or penalty, all premiums required pursuant to
sections 4006 and 4007 of ERISA.
Section 8.08 Subsidiary Guarantors. The Borrower will, and will cause each Subsidiary
to, execute and deliver such further agreements and instruments and take such further action as may
be reasonably requested by the Administrative Agent to carry out the provisions and purposes of
this Agreement and the other Loan Documents. Without limiting the foregoing, upon the creation or
acquisition of any Subsidiary, the Borrower shall (a) provide written notice of such event to the
Administrative Agent within five Business Days following the date the Borrower has knowledge
thereof, and (b) cause each such Subsidiary to execute and deliver a Guaranty Agreement (or written
joinder to existing Guaranty Agreements), other Loan Documents and such other documents required by
this Agreement, each in form and substance satisfactory to the Administrative Agent, within 30
calendar days following the date the Borrower has knowledge thereof. If any Subsidiary is created
or acquired after the date hereof, the Borrower shall execute and deliver to the Administrative
Agent (i) an amendment to this Agreement to amend Schedule 7.14 (which only needs the
signature of the Administrative Agent to be effective if the only change is the addition of the new
Subsidiary) and (ii) any other documents, instruments, or agreements required by the Administrative
Agent. This Section 8.08 shall not be construed as permitting the creation or acquisition
of any Subsidiary not otherwise permitted by Section 9.20.
Section 8.09 Treasury Management System. Within ninety (90) days after the date of
this Agreement, Borrower shall have provided the Administrative Agent with satisfactory evidence of
Borrower’s conversion to the Administrative Agent’s treasury management systems (which shall
include, for example, operating accounts, sweep to loan accounts and other disbursement accounts).
ARTICLE IX
Negative Covenants
The Borrower covenants and agrees that, so long as any of the Commitments are in effect and
until payment in full of the Obligations:
Section 9.01 Debt. Neither the Borrower nor any Subsidiary will incur, create, assume
or permit to exist any Debt, except:
Revolving Credit Agreement – Page 61
(a) The Loans or other Obligations or any guaranty of or suretyship arrangement for the Loans
or other Obligations;
(b) Debt of the Borrower or any Subsidiary existing on the Closing Date which is reflected in
the Financial Statements or is disclosed in Schedule 9.01, and any renewals or extensions
(but not increases) thereof;
(c) accounts payable (for the deferred purchase price of Property or services) from time to
time incurred in the ordinary course of business which, if greater than 90 days past the invoice or
billing date, are being contested in good faith by appropriate proceedings if reserves adequate
under GAAP shall have been established therefor;
(d) (i) capital leases, (ii) Equipment Leases, (iii) environmental facilities revenue bonds,
and (iv) purchase money Debt which in each purchase money Debt case shall not exceed 100% of the
lesser of the total purchase price and the fair market value of the Property acquired as determined
at the time of acquisition, provided all Debt incurred pursuant to this clause (d) shall
not exceed $15,000,000 per fiscal year;
(e) Subordinated Debt so long as the Borrower has delivered a Compliance Certificate
concurrently with the issuance thereof demonstrating pro forma compliance with Article IX;
(f) prepayments for services rendered in the ordinary course of business provided that no
default exists in delivery of the service for which any such prepayments were made;
(g) Debt between and among the Borrower and/or any Guarantors (other than Holdings);
(h) surety bonds and similar instruments of the nature and for the purposes described in
Schedule 7.02, item 1 or Schedule 7.21;
(i) the Senior Unsecured Debt; and
(j) so long as no Default has occurred and continuing, unsecured earn–out obligations of the
Borrower or any Guarantor payable to a seller and incurred in connection with an Expansion
Expenditure.
Section 9.02 Liens. Neither the Borrower nor any Subsidiary will create, incur,
assume or permit to exist any Lien on any of its Properties (now owned or hereafter acquired),
except:
(a) Liens securing the payment of any Obligations;
(b) Excepted Liens;
(c) Liens disclosed on Schedule 9.02 and not otherwise permitted in this Section
9.02;
Revolving Credit Agreement – Page 62
(d) Liens securing Debt permitted under Section 9.01(d), but only on the Property that
is the subject of or acquired with such Debt; and
(e) Liens in respect of operating leases that do not constitute Debt and that are otherwise
permitted under Section 9.07.
Section 9.03 Investments. Neither the Borrower nor any Subsidiary will make, hold or
permit to remain outstanding any Investments in any Person, except that the foregoing restriction
shall not apply to:
(a) Investments reflected in the Financial Statements or which are disclosed to the Lenders in
Schedule 9.03;
(b) accounts receivable arising in the ordinary course of business or notes or other
obligations or Property received in settlement thereof;
(c) direct obligations of the United States or any agency thereof, or obligations guaranteed
by the United States or any agency thereof, in each case maturing within one year from the date of
creation thereof;
(d) commercial paper maturing within one year from the date of creation thereof rated in the
highest grade by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x
Investors Service, Inc.;
(e) deposits maturing within one year from the date of creation thereof with, including
certificates of deposit issued by, any Lender or any office located in the United States of any
other bank or trust company which is organized under the laws of the United States or any state
thereof, has capital, surplus and undivided profits aggregating at least $500,000,000 (as of the
date of such Lender’s or bank or trust company’s most recent financial reports) and has a short
term deposit rating of no lower than A2 or P2, as such rating is set forth from time to time, by
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x Investors Service,
Inc., respectively;
(f) deposits in money market funds investing substantially in investments described in
Section 9.03(c), 9.03(d) or 9.03(e);
(g) Investments made by the Borrower in or to the Guarantors (other than Holdings); and
(h) Expansion Expenditures.
Section 9.04 Dividends, Distributions and Redemptions; Etc. The Borrower will not
declare or pay any cash dividend, or purchase, redeem or otherwise acquire for value any of its
Equity Interests now or hereafter outstanding (other than a conversion of any preferred stock into
common stock), return any capital to its stockholders or make any distribution of its assets to its
stockholders.
Revolving Credit Agreement – Page 63
Section 9.05 Sales and Leasebacks. Neither the Borrower nor any Subsidiary will enter
into any arrangement, directly or indirectly, with any Person whereby the Borrower or any
Subsidiary shall sell or transfer any of its Property, whether now owned or hereafter acquired, and
whereby the Borrower or any Subsidiary shall then or thereafter rent or lease as lessee such
Property or any part thereof or other Property which the Borrower or any Subsidiary intends to use
for substantially the same purpose or purposes as the Property sold or transferred.
Section 9.06 Nature of Business; Amendments of Constitutive Documents. Neither the
Borrower nor any Subsidiary will allow (a) any material change to be made in the character of its
business as an operator of non-hazardous solid waste collection, recycling, transfer and disposal
services or (b) any amendments to their respective constitutive documents in any manner adverse to
the Lenders.
Section 9.07 Limitation on Leases. Neither the Borrower nor any Subsidiary will
create, incur, assume or permit to exist any obligation for the payment of rent or hire of Property
of any kind whatsoever (real or personal including operating or capital leases), under leases or
lease agreements except for leases (a) in the ordinary course of business and which do not
constitute Debt and (b) permitted under Section 9.01(d) hereof.
Section 9.08 Mergers, Etc. Except as permitted by Section 9.20, neither the
Borrower nor any Subsidiary will merge into or with or consolidate with any other Person, or sell,
lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its Property or assets to any other Person; provided, however, so long as no
Default exists or would result therefrom, (a) any Subsidiary may merge into or transfer its assets
to another Subsidiary that is a party to the Loan Documents or into the Borrower, and (b) the
Borrower or a Subsidiary may transfer the stock of a Subsidiary to a Guarantor.
Section 9.09 Proceeds of Loans; Letters of Credit. The Borrower will not permit the
proceeds of the Loans or Letters of Credit to be used for any purpose other than those permitted by
Section 7.07. Neither the Borrower nor any Person acting on behalf of the Borrower has
taken or will take any action which might cause any of the Loan Documents to violate Regulation T,
U or X or any other regulation of the Board of Governors of the Federal Reserve System or to
violate Section 8 of the Securities Exchange Act of 1934 or any rule or regulation thereunder, in
each case as now in effect or as the same may hereinafter be in effect.
Section 9.10 ERISA Compliance. The Borrower will not at any time:
(a) Engage in, or permit any ERISA Affiliate to engage in, any transaction in connection with
which the Borrower or any ERISA Affiliate could be subjected to either a civil penalty assessed
pursuant to Section 502(c), (i), (l) or (m) of ERISA or a tax imposed by Chapter 43 of Subtitle D
of the Code;
(b) Terminate, or permit any ERISA Affiliate to terminate, any Plan in a manner, or take any
other action with respect to any Plan, which could result in any liability to the Borrower or any
ERISA Affiliate to the PBGC;
Revolving Credit Agreement – Page 64
(c) Fail to make, or permit any ERISA Affiliate to fail to make, full payment when due of all
amounts which, under the provisions of any Plan, agreement relating thereto or applicable law, the
Borrower or any ERISA Affiliate is required to pay as contributions thereto;
(d) Permit to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding
deficiency within the meaning of Section 302 of ERISA or Section 412 of the Code, whether or not
waived, with respect to any Plan;
(e) Voluntarily permit, or allow any ERISA Affiliate to permit, the actuarial present value of
the benefit liabilities under any Plan maintained by the Borrower or any ERISA Affiliate which is
regulated under Title IV of ERISA to exceed the current value of the assets (computed on a plan
termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit
liabilities. The term “actuarial present value of the benefit liabilities” shall have the meaning
specified in Section 4041 of ERISA;
(f) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to
contribute to or assume an obligation to contribute to, any Multiemployer Plan;
(g) Acquire, or permit any ERISA Affiliate to acquire, an interest in any Person that causes
such Person to become an ERISA Affiliate with respect to the Borrower or any ERISA Affiliate if
such Person sponsors, maintains or contributes to, or at any time in the six-year period preceding
such acquisition has sponsored, maintained, or contributed to, (i) any Multiemployer Plan, or (ii)
any other Plan that is subject to Title IV of ERISA under which the actuarial present value of the
benefit liabilities under such Plan exceeds the current value of the assets (computed on a plan
termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit
liabilities;
(h) Incur, or permit any ERISA Affiliate to incur, a liability to or on account of a Plan
under sections 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to
contribute to or assume an obligation to contribute to, any employee welfare benefit plan, as
defined in section 3(1) of ERISA, including, without limitation, any such plan maintained to
provide benefits to former employees of such entities, that may not be terminated by such entities
in their sole discretion at any time without any liability that could reasonably be expected to
have a Material Adverse Affect; or
(j) Amend or permit any ERISA Affiliate to amend, a Plan resulting in an increase in current
liability such that the Borrower or any ERISA Affiliate is required to provide security to such
Plan under Section 401(a)(29) of the Code.
Section 9.11 Sale or Discount of Receivables. Neither the Borrower nor any Subsidiary
will discount or sell (with or without recourse) any of its notes receivable or accounts receivable
(excluding any discounts of gate rates provided in the ordinary course of business and settlement
of past due amounts in the ordinary course of business and in accordance with prudent commercial
practice).
Revolving Credit Agreement – Page 65
Section 9.12 Leverage Ratio. The Borrower will not permit the Leverage Ratio at any
time (calculated quarterly at the end of each fiscal quarter) to be greater than (a) 5.25 to 1.00
for the period beginning as of the Closing Date through and including Xxxxx 00, 0000, (x) for the
period ending June 30, 2007 through and including March 31, 2008, 5.00 to 1.00, and (c) thereafter,
4.75 to 1.00.
Section 9.13 Net Worth. The Borrower will not permit its Net Worth at any time
(calculated quarterly at the end of each fiscal quarter) to be less than $85,000,000 as of June 30,
2006, plus, as of the end of each fiscal quarter thereafter, 50% of the sum of the
Borrower’s after-tax Consolidated Net Income for each fiscal quarter for which Consolidated Net
Income is greater than $0 beginning with the fiscal quarter ending June 30, 2006, plus 100%
of the increase to Net Worth resulting from the net cash proceeds from the equity offerings after
June 30, 2006 and from the net cash proceeds from the equity offering from Ares.
Section 9.14 Senior Secured Funded Debt Leverage Ratio. The Borrower will not permit
the Senior Secured Funded Debt Leverage Ratio at any time (calculated at the end of each fiscal
quarter) to be greater than the ratio corresponding to the applicable period set forth below:
|
|
|
Fiscal quarter ending: |
|
Ratio: |
Closing Date through and including June 30, 2008
|
|
3.25 to 1.00 |
At all times thereafter
|
|
3.00 to 1.00 |
Section 9.15 Adjusted EBIT Debt Service Ratio. The Borrower will not permit the
Adjusted EBIT Debt Service Ratio at any time (calculated quarterly at the end of each fiscal
quarter) to be less than the ratio corresponding to the applicable period set forth below:
|
|
|
Fiscal quarter ending: |
|
Ratio: |
Closing Date through and including June 30, 2008
|
|
1.25 to 1.00 |
At all times thereafter
|
|
1.50 to 1.00 |
Section 9.16 Capital Expenditures. The Borrower will not, and will not permit any
Subsidiary to make any Capital Expenditures except Capital Expenditures made in the ordinary course
of business and Expansion Expenditures.
Section 9.17 Sale of Properties. The Borrower will not, and will not permit any
Subsidiary to, sell, assign, convey or otherwise transfer any Property or any interest in any
Property (a “Transfer”), except for (i) any Transfers in the ordinary course of business to
the extent that within 180 days of such Transfer, either (a) such Property is exchanged for credit
against the purchase price of similar replacement Property or (b) the proceeds of such Transfer are
applied to the purchase price of such replacement Property; (ii) intercompany Transfers between and
among Borrower and its Subsidiaries; (iii) other sales of Property (other than Transfers described
in clause (iv)) where the aggregate sales price therefor does not exceed $5,000,000 in the
aggregate in any fiscal year; (iv) Transfers of Non-Core Assets to the extent
Revolving Credit Agreement – Page 66
the aggregate sales
price therefor does not exceed $1,000,000 in the aggregate at any time beginning on the Closing
Date. Each Transfer shall be for fair value.
Section 9.18 Environmental Matters. Neither the Borrower nor any Subsidiary will
cause or permit any of its Property to be in violation of, or do anything or permit anything to be
done which will subject any such Property to any remedial obligations under any Environmental Laws,
assuming disclosure to the applicable Governmental Authority of all relevant facts, conditions and
circumstances, if any, pertaining to such Property, in each case where such violations or remedial
obligations could reasonably be expected to have a Material Adverse Effect.
Section 9.19 Transactions with Affiliates. Except as permitted by Section
9.08, neither the Borrower nor any Subsidiary will enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property or the rendering of any
service, with any Affiliate unless such transactions are otherwise permitted under this Agreement,
are in the ordinary course of its business and are upon fair and reasonable terms no less favorable
to it than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate;
provided, however, that the Borrower and its Subsidiaries may provide general and administrative
services to its Affiliates and to Waste Corporation and any of its Subsidiaries, with or without
reimbursement or compensation, all pursuant to service agreements in form and substance reasonably
satisfactory to the Administrative Agent, and that nothing set forth in this Agreement shall
prohibit Borrower and its Subsidiaries from paying their proportionate share of any liabilities of
the consolidated group of which they are a member that are imposed by any Governmental
Requirement.
Section 9.20 Subsidiaries. The Borrower shall not, and shall not permit any
Subsidiary to, create any additional Subsidiaries unless (a) such Subsidiaries either acquire some
or all of the assets (whether through merger, contribution or otherwise) of the Borrower or other
Subsidiaries as part of a corporate restructuring or reorganization, are used to effect an
acquisition as permitted by this Agreement, or are created to provide services or functions, or
hold assets of the type now performed, furnished or used by the Borrower and its Subsidiaries and
(b) the Borrower and its Subsidiaries have complied with Section 8.08. The Borrower shall
not and shall not permit any Subsidiary to sell or to issue any stock or ownership interest of a
Subsidiary, except to the Borrower or a Guarantor and except in compliance with Section
9.03 or Section 9.08.
Section 9.21 Negative Pledge Agreements. Neither the Borrower nor any Subsidiary will
create, incur, assume or permit to exist any contract, agreement or understanding
(other than this Agreement, the other Loan Documents and any agreement creating the Liens
allowed under Sections 9.02(d), (e) and (f)) which in any way prohibits or
restricts the granting, conveying, creation or imposition of any Lien on any of its Property or
restricts any Subsidiary from paying dividends to the Borrower, or which requires the consent of or
notice to other Persons in connection therewith, except, in each case, for the Senior Unsecured
Note Indenture.
Section 9.22 Prepayments of Debt; Amendment of Documents. Neither the Borrower nor
any Subsidiary will (a) prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in violation of any
Revolving Credit Agreement – Page 67
subordination
terms of, any Debt other than to prepay any Debt payable to the Borrower or (b) amend, supplement
or otherwise modify the terms of any of the Subordinated Debt or any of the documents evidencing
such Subordinated Debt or (c) amend, supplement or otherwise modify the terms of any of the other
documents evidencing such Subordinated Debt except as otherwise permitted upon the prior written
consent of the Required Lenders, provided, nothing herein shall prohibit the payment of interest or
principal on the Senior Unsecured Debt in accordance with the terms of the documents evidencing
same.
ARTICLE X
Events of Default; Remedies
Section 10.01 Events of Default. One or more of the following events shall constitute
an “Event of Default”:
(a) the Borrower shall default in the payment or prepayment when due of any principal of or
interest on any Loan, or any reimbursement obligation for a disbursement made under any Letter of
Credit, or any fees or other amount payable by it hereunder or under any other Related Document, or
any Guarantor shall default in the payment of any guaranty obligation or any other amounts when due
under any Related Document to which such Guarantor is a party, and such default, other than a
default of a payment or prepayment of principal, interest, any reimbursement obligation, or
guaranty obligation (each of which shall have no cure period), shall continue unremedied for a
period of five Business Days; or
(b) the Borrower or any Subsidiary shall default in the payment when due of any principal of
or interest on any of its other Debt aggregating $500,000 or more, or any event specified in any
note, agreement, indenture or other document evidencing or relating to any such Debt shall occur if
the effect of such event is to cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder
or holders) to cause, such Debt to become due prior to its stated maturity; or
(c) any representation, warranty or certification made or deemed made herein or in any Loan
Document by the Borrower or any Subsidiary, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or any Loan Document, shall prove to have
been false or misleading as of the time made or furnished in any material respect; or
(d) the Borrower shall default in the performance of any of its obligations under Article
IX (other than Sections 9.10 and 9.18) or Section 8.01(e); or the
Borrower shall default in the performance of any of its obligations under Section 8.01(a),
8.01(b), 8.01(c) or 8.01(d) or delivery of any Compliance Certificate and
such default shall continue unremedied for a period of five days after the earlier to occur of (i)
notice thereof to the Borrower by the Administrative Agent or any Lender (through the
Administrative Agent) or (ii) the Borrower otherwise becoming aware of such default; or the
Borrower shall default in the performance of any of its obligations under Section 9.10 or
9.18 and such default shall continue unremedied for a period of 10 days after the earlier
to occur of (i) notice thereof to the Borrower by the Administrative Agent or any Lender (through
the Administrative Agent) or (ii) the Borrower
Revolving Credit Agreement – Page 68
otherwise becoming aware of such default; or the
Borrower shall default in the performance of any of its obligations under Article VIII
(other than Section 8.01(a), 8.01(b), 8.01(c) or 8.01(d) or to
deliver Compliance Certificates), any other Article of this Agreement other than Article
IX, or any other Loan Documents or any Related Document to which it is a party (other than the
payment of amounts due which shall be governed by Section 10.01(a)) and such default shall
continue unremedied for a period of 30 days after the earlier to occur of (i) notice thereof to the
Borrower by the Administrative Agent or any Lender (through the Administrative Agent) or (ii) the
Borrower otherwise becoming aware of such default; or a Guarantor shall default in the performance
of any of its obligations under any Loan Document or any Related Document to which it is a party
(other than the payment of amounts due which shall be governed by Section 10.01(a)) and
such default shall continue unremedied for a period of 30 days after the earlier to occur of (i)
notice thereof to the Borrower by the Administrative Agent or any Lender (through the
Administrative Agent), or (ii) the Borrower or such Guarantor otherwise becoming aware of such
default; or
(e) the Borrower shall admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due; or
(f) the Borrower shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit of its creditors, (iii)
commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (iv)
file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, liquidation or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Federal Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application or consent of the
Borrower, in any court of competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of
a trustee, receiver, custodian, liquidator or the like of the Borrower of all or any substantial
part of its assets, or (iii) similar relief in respect of the Borrower under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 days; or (iv) an order for relief against the Borrower shall be entered in
an involuntary case under the Federal Bankruptcy Code; or
(h) a judgment or judgments for the payment of money in excess of $2,000,000 in the aggregate
shall be rendered by a court against the Borrower or any Subsidiary and the same shall not be
discharged (or provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the Borrower or such
Subsidiary shall not, within said period of 30 days, or such longer period during which execution
of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
Revolving Credit Agreement – Page 69
(i) the Loan Documents shall for any reason, except to the extent permitted by the terms
thereof, cease to be in full force and effect and valid, binding and enforceable in accordance with
their terms, or the Loan Documents after delivery thereof cease to create a valid and perfected
Lien of the priority required thereby on any material portion of the collateral purported to be
covered thereby, except to the extent permitted by the terms of this Agreement, or the Borrower
shall so state in writing; or
(j) a Material Adverse Effect shall have occurred; or
(k) any Guarantor takes, suffers or permits to exist any of the events or conditions referred
to in clauses (e), (f), (g) or (h) or if any provision of any
guaranty agreement related thereto shall, in any material respect, for any reason cease to be valid
and binding on such Guarantor or if such Guarantor shall so state in writing; or
(l) any Related Document shall for any reason cease to be in full force and effect other than
in accordance with its terms; or
(m) a Change of Control shall occur.
Section 10.02 Remedies.
(a) In the case of an Event of Default other than one referred to in clauses (e),
(f), (g) or (m) of Section 10.01, the Administrative Agent, upon
request of the Required Lenders, shall, by notice to the Borrower, (i) cancel the Commitments (in
whole or part), (ii) declare the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Borrower hereunder and under the Obligations to be
forthwith due and payable, or (iii) declare the payment of cash collateral to secure the LC
Exposure as provided in Section 2.10(b) to be forthwith due and payable, whereupon all such
amounts shall be immediately due and payable without presentment, demand, protest, notice of intent
to accelerate, notice of acceleration or other formalities of any kind, all of which are hereby
expressly waived by the Borrower.
(b) In the case of the occurrence of an Event of Default referred to in clauses (e),
(f), (g) or (m) of Section 10.01, the Commitments shall be
automatically canceled and the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Borrower hereunder and under the Obligations
(including without limitation the payment of cash collateral to secure the LC Exposure as provided
in
Section 2.10(b)) shall become automatically immediately due and payable without
presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other
formalities of any kind, all of which are hereby expressly waived by the Borrower.
(c) All proceeds received after maturity of the Loans, whether by acceleration or otherwise
shall be applied first to reimbursement of expenses and indemnities provided for in this Agreement
and the other Loan Documents; second to accrued interest on the Obligations; third to fees; fourth
pro rata to principal outstanding on the Loans and other Obligations; fifth to serve as cash
collateral to be held by the Collateral Agent to secure the LC Exposure; and any excess shall be
paid to the Borrower or as otherwise required by any Governmental Requirement.
Revolving Credit Agreement – Page 70
ARTICLE XI
The Agent
Section 11.01 Appointment and Authority. Each of the Lenders and the Issuing Bank
hereby irrevocably appoints Comerica to act on its behalf as the Administrative Agent and the
Collateral Agent hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Bank, and neither the Borrower nor any Guarantor
shall have rights as a third party beneficiary of any of such provisions.
The Administrative Agent hereby assigns, transfers, grants and conveys to the Collateral Agent
all of the Liens granted pursuant to the Security Instruments (as defined in the Existing Credit
Agreement) together with all attendant liens, rights, titles, assignments and interests (including
security interests) pertaining to or arising from such Security Instruments, and together with all
other documents, instruments and certificates or other writings executed or delivered to the
Administrative Agent in connection with the Existing Credit Agreement and such Security
Instruments. The Administrative Agent agrees that it shall make, procure, execute and deliver all
acts, things, writings, including but not limited to financing statements as the Collateral Agent
may from time to time require to protect or enforce its interests and remedies created by, provided
for, and emanating from the Loan Documents.
Section 11.02 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
Section 11.03 Exculpatory Provisions. No Agent shall have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that such Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents), provided that no Agent shall be required to
Revolving Credit Agreement – Page 71
take any action that, in its
opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to
any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
an Agent or any of its Affiliates in any capacity.
No Agent shall be liable for any action taken or not taken by it (i) with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 10.02 and 12.04) or (ii) in the absence of its own gross
negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless
and until notice describing such Default is given to such Agent by the Borrower, a Lender or the
Issuing Bank.
No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article VI or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such Agent.
Section 11.04 Reliance by any Agent. Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Bank,
Administrative Agent may presume that such condition is satisfactory to such Lender or the
Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or the
Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section 11.05 Delegation of Duties. Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub agents appointed by such Agent. Administrative Agent and any such sub
agent may perform any and all of its duties and exercise its rights and powers by or
Revolving Credit Agreement – Page 72
through their
respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub
agent and to the Related Parties of any Agent and any such sub agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as an Agent.
Section 11.06 Resignation of an Agent. An Agent may at any time give notice of its
resignation to the Lenders, the Issuing Bank and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States of America, or an
Affiliate of any such bank with an office in the United States of America. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent
may on behalf of the Lenders and the Issuing Bank, appoint a successor Agent meeting the
qualifications set forth above provided that if such Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders
or the Issuing Bank under any of the Loan Documents, the retiring Collateral Agent shall continue
to hold such collateral security until such time as a successor Collateral Agent is appointed) and
(2) all payments, communications and determinations provided to be made by, to or through such
Agent shall instead be made by or to each Lender and the Issuing Bank directly, until such time as
the Required Lenders appoint a successor Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as such Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above
in this paragraph). The fees payable by the Borrower to a successor Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 12.03 shall continue in effect for the benefit of such retiring
Agent, its sub agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Agent was acting as Agent.
Section 11.07 Non-Reliance on Agent and Other Lenders. Each Lender and the Issuing
Bank acknowledges that it has, independently and without reliance upon any Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
and the Issuing Bank also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
Section 11.08 No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the Bookrunners, Arrangers or Syndication Agent listed on the cover page hereof shall
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have
any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as an Agent, a Lender or the Issuing Bank hereunder.
Section 11.09 Issuing Bank as Agent. Administrative Agent hereby irrevocably appoints
and authorizes the Issuing Bank to act as its agent (for the benefit of itself, the Administrative
Agent and the other Lenders) under the Loan Documents with such other powers as are reasonably
incidental thereto for purposes of holding maintaining, or taking any action with respect to the
collateral securing the Obligations.
Section 11.10 Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Collateral Agent, at its option and in its discretion:
(a) to release any Lien on any Property granted to or held by the Collateral Agent under any
Loan Document (i) upon termination of the Commitments and payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 12.04, if approved,
authorized or ratified in writing by the Required Lenders; and
(b) to release any Guarantor from its obligations under the Guaranty Agreement if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing
the Collateral Agent’s authority to release its interest in particular types or items of property,
or to release any Guarantor from its obligations under the Guaranty Agreement pursuant to this
Section 11.10.
Section 11.11 Indemnification. Each of the Lenders, the Administrative Agent and the
Issuing Bank (collectively, the “Lender Parties” and individually, a “Lender
Party”) severally agrees to indemnify Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender Party’s ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on,
incurred by, or asserted against such Agent in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the
“Indemnified Costs”); provided, however, that no Lender Party shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct
as found in a final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse Administrative Agent promptly
upon demand for its ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section 12.03, to
the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrowers.
In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs,
this
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Section 11.12 applies whether any such investigation, litigation or proceeding is
brought by any Lender Party or any other Person.
ARTICLE XII
Miscellaneous
Section 12.01 Waiver. No failure on the part of any Agent or any Lender to exercise
and no delay in exercising, and no course of dealing with respect to, any right, power or privilege
under any of the Loan Documents shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under any of the Loan Documents preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The remedies
provided herein are cumulative and not exclusive of any remedies provided by law.
Section 12.02 Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in clause (b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier
as follows:
(i) if to the Borrower or any Guarantor, to it at the address specified below the Borrower’s
name on the signature pages hereof;
(ii) if to an Agent, to it at the address specified below its name on the signature page
hereof;
(iii) if to the Issuing Bank, to it at the address specified below its name on the signature
page hereof; and
(iv) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent provided in
clause (b) below, shall be effective as provided in said clause (b).
(b) Electronic Communications. (i) Notices and other communications to the Lenders
and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in
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its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular
notices or communications.
(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (B) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (A) of notification that such notice or communication is
available and identifying the website address therefor.
(iii) The Borrower agrees that any Agent may make any material delivered by the Borrower to
such Agent, as well as any amendments, waivers, consents, and other written information, documents,
instruments and other materials relating to Holdings, the Borrower, any of its Subsidiaries, or any
other materials or matters relating to this Agreement, the other Loan Documents or any of the
transactions contemplated hereby (collectively, the “Communications”) available to the
Lenders by posting such notices on an electronic delivery system (which may be provided by an
Agent, an Affiliate of an Agent, or any Person that is not an Affiliate of an Agent), such as
IntraLinks, or a substantially similar electronic system (the “Platform”). The Borrower
acknowledges that (A) the distribution of material through an electronic medium is not necessarily
secure and that there are confidentiality and other risks associated with such distribution, (B)
the Platform is provided “as is” and “as available” and (C) neither any Agent nor any of its
Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of the
Communications posted on the Platform. Administrative Agent and its Affiliates expressly disclaim
with respect to the Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the Communications posted on the
Platform and any liability for any losses, costs, expenses or liabilities that may be suffered or
incurred in connection with the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code defects, is made by
any Agent or any of its Affiliates in connection with the Platform.
(iv) Each Lender agrees that notice to it specifying that any Communication has been posted
to the Platform shall for purposes of this Agreement constitute effective delivery to such Lender
of such information, documents or other materials comprising such Communication. Each Lender
agrees (A) to notify, on or before the date such Lender becomes a party to this Agreement,
Administrative Agent in writing of such Lender’s e-mail address to which a notice may be sent (and
from time to time thereafter to ensure that Administrative Agent has on record an effective e-mail
address for such Lender) and (B) that any notice may be sent to such e-mail address.
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(c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.
Section 12.03 Payment of Expenses, Indemnities, etc.
(a) The Borrower agrees:
(i) whether or not the transactions hereby contemplated are consummated, to pay all reasonable
expenses of Administrative Agent in the administration (both before and after the execution hereof
and including reasonable fees and related expenses for advice of counsel for Administrative Agent
as to the rights and duties of the Administrative Agent and the Lenders with respect thereto) of,
and in connection with the negotiation, syndication, investigation, preparation, execution and
delivery of, recording or filing of, preservation of rights under, enforcement of, and refinancing,
renegotiation or restructuring of, the Loan Documents and any amendment, waiver or consent relating
thereto (including, without limitation, travel, photocopy, mailing, courier, telephone and other
similar expenses of the Administrative Agent, the cost of environmental audits (including those
conducted in connection with the Second Lien Financing) not to exceed $50,000 per fiscal year
unless any audit discloses environmental problems that in any Agent’s reasonable determination
requires additional study, in which case the $50,000 cap shall not apply, surveys and appraisals at
reasonable intervals, the reasonable fees and disbursements of counsel and other outside
consultants for any Agent and, in the case of workout or enforcement after an Event of Default, the
reasonable fees and disbursements of counsel for any Agent and any of the Lenders); and promptly
reimburse Administrative Agent for all amounts expended, advanced or incurred by the Administrative
Agent or the Lenders to satisfy any obligation of the Borrower under this Agreement or any other
Loan Document, including without limitation, all costs and expenses of foreclosure;
(ii) to indemnify Administrative Agent and each Lender and each of their Affiliates and each
of their Related Parties (“Indemnified Parties”) from, hold each of them harmless against
and promptly upon demand pay or reimburse each of them for, the Indemnity Matters which may be
incurred by or asserted against or involve any of them (whether or not any of them is designated a
party thereto) as a result of, arising out of or in any way related to (i) any actual or proposed
use by the Borrower of the proceeds of the Loans or Letters of Credit, (ii) the execution, delivery
and performance of the Loan Documents, (iii) the operations of the business of the Borrower and its
Subsidiaries, (iv) the failure of the Borrower or any Subsidiary to comply with the terms of any
Loan Document or this Agreement, or with any Governmental Requirement, (v) any inaccuracy of any
representation or any breach of any warranty of the
Borrower or any Guarantor set forth in any of the Loan Documents, (vi) the issuance, execution
and delivery or transfer of or payment or failure to pay under any Letter of Credit, except any
failure to pay in accordance with the terms thereof, or (vii) the payment of a drawing under any
Letter of Credit notwithstanding the non-compliance, non-delivery or other improper presentation of
the manually executed draft(s) and certification(s) if such documents are sufficient on their face,
(viii) any assertion that the Lenders were not entitled to receive the proceeds received pursuant
to the Loan Documents or (ix) any other aspect of the Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses
incurred in connection with investigating, defending or preparing
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to defend any such action, suit,
proceeding (including any investigations, litigation or inquiries) or claim and including all
Indemnity Matters arising by reason of the ordinary negligence of any Indemnified Party, but
excluding all Indemnity Matters arising solely by reason of claims between the Lenders or any
Lender and any Agent or a Lender’s shareholders against an Agent or Lender or by reason of the
gross negligence or willful misconduct on the part of any Indemnified Party; and
(iii) to indemnify and hold harmless from time to time the Indemnified Parties from and
against any and all losses, claims, cost recovery actions, administrative orders or proceedings,
damages and liabilities to which any such Person may become subject (i) under any Environmental Law
applicable to the Borrower or any Subsidiary or any of their Properties, including without
limitation, the treatment or disposal of hazardous substances on any of their Properties, (ii) as a
result of the breach or non-compliance by the Borrower or any Subsidiary with any Environmental Law
applicable to the Borrower or any Subsidiary, (iii) due to past ownership by the Borrower or any
Subsidiary of any of their Properties or past activity on any of their Properties which, though
lawful and fully permissible at the time, could result in present liability, (iv) the presence,
use, release, storage, treatment or disposal of hazardous substances on or at any of the Properties
owned or operated by the Borrower or any Subsidiary, or (v) any other environmental, health or
safety condition in connection with the Loan Documents; provided, however, no indemnity or hold
harmless protection shall be afforded under this Section 12.03(a)(iii) in respect of any
Property for any occurrence arising from the acts or omissions of any Agent or any Lender during
the period after which such Person, its successors or assigns shall have obtained possession of
such Property (whether by foreclosure or deed in lieu of foreclosure, as mortgagee-in-possession or
otherwise).
(b) No Indemnified Party may settle any claim to be indemnified without the consent of the
indemnitor, such consent not to be unreasonably withheld; provided, that the indemnitor may not
reasonably withhold consent to any settlement that an Indemnified Party proposes, if the indemnitor
does not have the financial ability to pay all its obligations outstanding and asserted against the
indemnitor at that time, including the maximum potential claims against the Indemnified Party to be
indemnified pursuant to this Section 12.03.
(c) In the case of any indemnification hereunder, any Agent or Lender, as appropriate shall
give notice to the Borrower of any such claim or demand being made against the Indemnified Party
and the Borrower shall have the non-exclusive right to join in the defense against any such claim
or demand provided that if the Borrower provides a defense, the Indemnified Party shall bear its
own cost of defense unless there is a conflict between the Borrower and such Indemnified Party.
(d) Except as expressly provided in the proviso to Section 12.03(a)(iii) above, the
foregoing indemnities shall extend to the Indemnified Parties notwithstanding the sole or
concurrent negligence of every kind or character whatsoever, whether active or passive, whether an
affirmative act or an omission, including without limitation, all types of negligent conduct
identified in the restatement (second) of torts of one or more of the Indemnified Parties or by
reason of strict liability imposed without fault on any one or more of the Indemnified Parties. To
the extent that an Indemnified Party is found to have committed an act of gross negligence or
willful misconduct, this contractual obligation of indemnification shall continue but shall only
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extend to the portion of the claim that is deemed to have occurred by reason of events other than
the gross negligence or willful misconduct of the Indemnified Party.
(e) The Borrower’s obligations under this Section 12.03 shall survive any termination
of this Agreement and the payment of the Obligations and shall continue thereafter in full force
and effect.
(f) The Borrower shall pay any amounts due under this Section 12.03 within 30 days of
the receipt by the Borrower of notice of the amount due.
Section 12.04 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, nor consent to any departure by any of the Borrower or any
Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, the Borrower, the Guarantors (if applicable) and the Administrative Agent,
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that:
(a) no amendment, waiver, or consent shall, unless in writing and signed by all the Lenders
holding Revolving Credit Loans or Revolving Credit Commitments and the Borrower, do any of the
following: (i) reduce the principal of, or interest on, the Revolving Credit Loans, (ii) other
than Section 2.08, postpone or extend any date fixed for any payment of principal of, or
interest on, the Revolving Credit Loans, including, without limitation, the Termination Date for
the Aggregate Revolving Credit Commitments, or (iii) change the number of Lenders holding Revolving
Credit Loans or Revolving Credit Commitments which shall be required for such Lenders to take any
action hereunder or under any other Loan Document;
(b) no amendment, waiver, or consent shall, unless in writing and signed by all the Lenders
and the Borrower, do any of the following: (i) waive any of the conditions specified in
Section 6.01, (ii) reduce any fees or other amounts payable hereunder or under any other
Loan Document (other than those specifically addressed in this Section 12.04), (iii) except
pursuant to Section 2.04, increase the Aggregate Revolving Credit Commitments, (iv)
postpone or extend any date fixed for any payment of any fees or other amounts payable hereunder
(other than those otherwise specifically addressed in this Section 12.04), (v) amend
Sections 4.05 or 12.04, or any other provision in any Loan Document which expressly
requires the consent of, or action or waiver by, all of the Lenders, (vii) release any Guarantor
from its obligation under the Guaranty Agreement or, except as specifically provided in the Loan
Documents and as a result of transactions permitted by the terms of this Agreement, release all or
a material portion of the Collateral except as permitted under Section 11.10; or (vii)
amend the definition of “Required Lenders”;
(c) no Commitment of a Lender or any obligations of a Lender may be increased without such
Lender’s written consent;
(d) no amendment, waiver, or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document;
Revolving Credit Agreement – Page 79
(e) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Bank in
addition to the Lenders required above to take such action, affect the rights or duties of the
Issuing Bank under this Agreement or any other Loan Document; and
(f) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line
Lender in addition to the Lenders required above to take such action, affect the rights or duties
of the Swing Line Lender under this Agreement or any other Loan Document.
Section 12.05 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of clause
(b) of this Section, (ii) by way of participation in accordance with the provisions of
clause (d) of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of clause (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
clause (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the Assignment and
Assumption substantially in the form of Exhibit F attached hereto (the
“Assignment”) with respect to such assignment is delivered to the Administrative Agent or,
if “Trade Date” is specified in the Assignment, as of the Trade Date)
shall not be less than $3,000,000, in the case of any assignment in respect of a revolving
facility, or $1,000,000, in the case of any assignment in respect of a term facility, unless each
of the Administrative Agent and, so long as no Default has occurred and is continuing, the Borrower
otherwise consent (each such consent not to be unreasonably withheld or delayed); provided however,
that simultaneous assignments to related Funds or by related Approved Funds shall be treated as one
assignment for purposes of determining whether the minimum assignment amount has been satisfied
hereunder;
Revolving Credit Agreement – Page 80
(ii) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate Tranches on a non-pro rata
basis;
(iii) any assignment of a Commitment must be approved by the Administrative Agent and the
Issuing Bank unless the Person that is the proposed assignee is itself a Lender with a Commitment
(whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if
it shall not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire, provided that only one such fee shall be payable in connection with simultaneous
assignments to two or more related Funds or by two or more related Approved Funds.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause
(c) of this Section, from and after the effective date specified in each Assignment, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment,
be released from its obligations under this Agreement (and, in the case of an Assignment covering
all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto) but shall continue to be entitled to the benefits of Article V and
Section 12.03 with respect to facts and circumstances occurring prior to the effective date
of such assignment. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
clause (d) of this Section.
(c)
Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at its office in Detroit,
Michigan a copy of each Assignment delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “
Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries ) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall
Revolving Credit Agreement – Page 81
remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the Lenders and Issuing Bank shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver with respect to the following: extending the final
maturity of the Loans, forgives the principal amount of any Loans outstanding under this Agreement,
releases any guarantor of the Obligations or releases all or substantially all of the collateral,
or reduces the interest rate applicable to the Loans or the fees payable to the Lenders generally,
described in Section 12.04(i) that affects such Participant. Subject to clause (e)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Article V to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 12.13 as though it were a
Lender, provided such Participant agrees to be subject to Section 4.05 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 5.01 and 5.02 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 5.02 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 5.02(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Dissenting Lenders. In the event that the Borrower shall request that the Lender
Parties enter into any amendment, modification, consent or waiver with respect
to this Agreement or any other Loan Document, and any Lender Party elects not to enter into
such amendment, modification, consent or waiver (each such Lender Party being a “Dissenting
Lender”), then the Borrower shall have the right upon 10 days’ written notice to the
Administrative Agent and such Dissenting Lender, to require (so long as the Administrative Agent
consents thereto) each such Dissenting Lender to assign 100% of the rights and obligations of the
Dissenting Lender at par to any Lender Party or any other financial institution which satisfies the
requirements of Section 12.05(b) and has been consented to by the Administrative Agent so
long as (i) the Required Lenders have otherwise approved such amendment, modification, consent or
waiver and (ii) such assignee described above approves such amendment, modification, consent or
waiver. Each such assignment shall be made pursuant
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to an Assignment and shall comply with the
other terms of this Section 12.05. The Borrower shall pay, and/or cause such relevant
assignee to pay, to such Dissenting Lender, concurrently with the effectiveness of each such
assignment, any amounts payable under this Agreement that would have been payable if the Borrower
had voluntarily prepaid such Loans. The Dissenting Lender shall not be required to pay any fee
relating to such assignment.
Section 12.06 Invalidity. In the event that any one or more of the provisions
contained in any of the Loan Documents or the Letters of Credit, or the Letter of Credit Agreements
shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this Agreement or any other
Loan Document.
Section 12.07 Counterparts, etc.
(a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent, constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 6.01,
this Agreement shall become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 12.08 Survival. The obligations of the parties under Article V, and
Section 12.03 shall survive the repayment of the Loans and the termination of the
Commitments. To the extent that any payments on the Obligations or proceeds of any collateral are
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be
repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law,
common law or equitable cause, then to such extent, the Obligations so satisfied shall be revived
and continue as if such payment or proceeds had not been received and the Administrative Agent and
the Lenders’ Liens, security interests, rights, powers and remedies under this Agreement and each
other Loan Document effective immediately prior thereto shall continue in full force and effect.
In such event, each such Loan Document shall be automatically reinstated and the
Revolving Credit Agreement – Page 83
Borrower shall
take such action as may be reasonably requested by the Administrative Agent and the Lenders to
effect such reinstatement.
Section 12.09 Captions. Captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.
Section 12.10 Governing Law; Submission to Jurisdiction.
(a)
Governing Law. This Agreement shall be governed by, and construed in accordance
with, the law of the State of
Michigan.
(b)
Submission to Jurisdiction. The Borrower irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the courts of the State of
Michigan or Federal Court of the United States of America sitting in the Eastern District of
Michigan, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Michigan State court
or, to the fullest extent permitted by applicable law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or in any other Loan Document shall affect any right that any Agent, any
Lender or the Issuing Bank may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) Waiver of Venue. The Borrower irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any objection that it may now or hereafter have to the
laying of venue of any action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in clause (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 12.02. Nothing in this
Agreement will affect the right of any party hereto to serve process in any other manner
permitted by applicable law.
Section 12.11 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and,
Revolving Credit Agreement – Page 84
to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 12.11 shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been received by such
Lender.
Section 12.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO RELATED PARTY OF ANY OTHER PERSON
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 12.13 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank, and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the Issuing Bank, irrespective of
whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the Issuing Bank different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank or
their respective Affiliates may have. Each Lender and the
Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
Section 12.14 Confidentiality.
(a) The Administrative Agent, the Lenders and the Issuing Bank agree to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ Related Parties (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of
Revolving Credit Agreement – Page 85
such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any pledgee under Section 12.05(f)
or any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower, (h) to a Person that is an investor or prospective investor in a
securitization that agrees that its access to Information is solely for purposes of evaluating an
investment in such permitted securitization and who agrees to treat such information as
confidential, (i) to a person that is a trustee, collateral manager, servicer, backup servicer,
noteholder or other security holder, secured party or other participant in a securitization in
connection with the administration, servicing and reporting on the assets serving as collateral for
a securitization and who agrees to treat such information as confidential, (j) to a nationally
recognized rating agency that requires access to information regarding the Borrower or any of its
Subsidiaries and the Loans for the purpose of issuing ratings in connection with a securitization
or (k) to the extent such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to any Agent, any Lender, the Issuing Bank or any
of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.
(b) For purposes of this Section, “Information” means all information received from
the Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any
of their respective businesses, other than any such information that is available to any Agent, any
Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or any of
its Subsidiaries, provided that, in the case of information received from the Borrower or any of
its Subsidiaries after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
Section 12.15 Exculpation Provisions. Each of the parties hereto specifically agrees
that it has a duty to read this Agreement and the other Loan Documents and agrees that it is
charged with notice and knowledge of the terms of this Agreement and the other Loan Documents; that
it has in fact read this Agreement and is fully informed and has full notice and knowledge of the
terms, conditions and effects of this Agreement; that it has been represented by independent legal
counsel of its choice throughout the negotiations preceding its execution of this Agreement and the
other Loan Documents; and has received the advice of its attorney in entering into this Agreement
and the other Loan Documents; and that it recognizes that certain of the terms of this Agreement
and the other Loan Documents result in one party assuming the liability inherent in some aspects of
the transaction and relieving the other party of its responsibility for such liability. Each party
hereto agrees and covenants that it will not contest the validity or
Revolving Credit Agreement – Page 86
enforceability of any
exculpatory provision of this Agreement and the other Loan Documents on the basis that the party
had no notice or knowledge of such provision or that the provision is not “conspicuous.”
Section 12.16 USA Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of The Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act.
Section 12.17 Release. THE BORROWER REPRESENTS AND WARRANTS THAT AS OF THE DATE
HEREOF THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OR ANY OBLIGATED
PARTIES’ OBLIGATIONS UNDER THE EXISTING CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE
DOCUMENTATION RELATING TO THE DEPOSIT AND CASH MANAGEMENT SERVICES. TO INDUCE THE ADMINISTRATIVE
AGENT, THE ISSUING BANK AND THE LENDERS TO ENTER INTO THIS AGREEMENT, THE BORROWER AND, BY THE
EXECUTION OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, EACH GUARANTOR WAIVES ANY AND ALL CLAIMS,
OFFSETS, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE HEREOF AND
HEREBY RELEASES THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING BANK AND THEIR RESPECTIVE
RELATED PARTIES (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL OBLIGATIONS,
INDEBTEDNESS, LIABILITY, CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED WHICH THE BORROWER OR ANY GUARANTOR EVER HAD, NOW HAS, CLAIMS TO
HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF OR FROM OR IN
CONNECTION WITH THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY DOCUMENTATION RELATING TO THE
DEPOSIT AND CASH MANAGEMENT SERVICES OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]
Revolving Credit Agreement – Page 87
The parties hereto have caused this Agreement to be duly executed as of the day and year first
above written.
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BORROWER: |
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WCA WASTE CORPORATION |
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By:
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/s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
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Title: Vice President |
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Address for Notices: |
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Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx |
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Revolving Credit Agreement – Signature Page
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ADMINISTRATIVE AGENT, COLLATERAL
AGENT, ISSUING BANK AND LENDERS: |
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COMERICA BANK, individually, as Issuing Bank, as a
Lender, as Administrative Agent and as
Collateral Agent |
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By:
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/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
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Assistant Vice President |
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Lending Office for Base Rate Loans
and LIBOR Loans: |
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000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 |
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Revolving Credit Agreement – Signature Page
ANNEX I
LIST OF PERCENTAGE SHARES AND REVOLVING CREDIT COMMITMENTS
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Percentage Share of Revolving |
Name of Lender |
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Revolving Credit Commitments |
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Credit Commitments |
Comerica Bank |
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$ |
100,000,000.00 |
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100 |
% |
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TOTAL |
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$ |
100,000,000.00 |
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100.00 |
% |
Revolving Credit Agreement – Schedule 9.03