EXHIBIT 10.1(j)
---------------
DEBTOR-IN POSSESSION CREDIT AGREEMENT
DATED AS OF APRIL 1, 2002
AMONG
COVANTA ENERGY CORPORATION
AND
EACH OF ITS U.S. SUBSIDIARIES PARTY HERETO,
each as a debtor-in-possession,
THE LENDERS LISTED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
AND
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent
BANK OF AMERICA, N.A.
AND
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Co-Lead Arrangers
TABLE OF CONTENTS
Page No.
Section 1. DEFINITIONS......................................................2
1.1 Certain Defined Terms............................................2
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement........................32
1.3 Other Definitional Provisions and Rules of Construction.........32
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS......................32
2.1 Commitments; Making of Loans; the Register; Optional Notes......32
2.2 Interest on the Loans...........................................37
2.3 Fees............................................................40
2.4 Repayments, Prepayments and Reductions in
Commitments; General Provisions Regarding Payments;
Application of Proceeds of Collateral and
Payments Under Subsidiary Guaranty..............................40
2.5 Use of Proceeds.................................................47
2.6 Special Provisions Governing Eurodollar Rate Loans..............48
2.7 Increased Costs; Taxes; Capital Adequacy........................50
2.8 Statement of Lenders; Obligation of Lenders
and Issuing Lenders to Mitigate.................................54
2.9 Replacement of a Lender.........................................54
2.10 Superpriority Nature of Obligations.............................56
2.11 Joint and Several Liability; Payment Indemnifications...........57
2.12 Subordination of Tranche B Obligations; Relative Rights.........57
2.13 Tranche B Lenders' Approval of Plan of Reorganization...........58
Section 3. LETTERS OF CREDIT...............................................59
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein..............................59
3.2 Letter of Credit Fees...........................................63
3.3 Drawings and Reimbursement of Amounts Paid
Under Letters of Credit.........................................64
3.4 Obligations Absolute............................................67
3.5 Nature of Issuing Lenders' Duties...............................68
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT.......................69
4.1 Conditions to Closing Date......................................69
4.2 Conditions to All Loans.........................................74
4.3 Conditions to Tranche A Letters of Credit.......................76
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES........................76
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries.......................................76
5.2 Authorization of Borrowing, etc.................................77
5.3 Financial Condition.............................................78
5.4 No Material Adverse Change; No Restricted Payments..............79
5.5 Title to Properties; Liens; Real Property;
Intellectual Property...........................................79
5.6 Litigation; Adverse Facts.......................................80
5.7 Payment of Taxes................................................80
5.8 Performance of Agreements; Material Contracts...................80
5.9 Governmental Regulation.........................................81
5.10 Securities Activities...........................................81
5.11 Employee Benefit Plans..........................................81
5.12 Certain Fees....................................................82
5.13 Environmental Protection........................................82
5.14 Employee Matters................................................83
5.15 Matters Relating to Collateral..................................83
5.16 Disclosure......................................................85
5.17 Prepetition Indebtedness........................................85
5.18 Cash Management System..........................................86
5.19 Orders..........................................................86
5.20 Matters Relating to Loan Parties................................86
Section 6. COMPANY'S AFFIRMATIVE COVENANTS.................................87
6.1 Financial Statements and Other Reports..........................87
6.2 Existence, etc..................................................93
6.3 Payment of Taxes and Claims; Tax................................94
6.4 Maintenance of Properties; Insurance; Application
of Net Insurance/ Condemnation Proceeds.........................94
6.5 Inspection Rights; Lender Meeting...............................96
6.6 Compliance with Laws, etc.......................................96
6.7 Environmental Matters...........................................97
6.8 Execution of Subsidiary Guaranty and Personal
Property Collateral Documents After the Closing
Date............................................................99
6.9 Matters Relating to Additional Real Property Collateral........101
6.10 Cash Management System.........................................101
6.11 Retention of Advisors..........................................101
6.12 Workers' Compensation Letters of Credit........................102
6.13 Renewal of Existing Performance Bonds..........................102
6.14 Further Assurances.............................................102
Section 7. BORROWERS' NEGATIVE COVENANTS..................................103
7.1 Indebtedness...................................................104
7.2 Liens and Related Matters......................................105
7.3 Investments; Acquisitions......................................106
7.4 Contingent Obligations.........................................108
7.5 Restricted Payments; Limitation on Repayments..................108
7.6 Budget and Financial Covenants.................................109
7.7 Restriction on Fundamental Changes; Asset Sales................110
7.8 Bonus and Retention Arrangements...............................112
7.9 Transactions with Shareholders and Affiliates..................113
7.10 Restriction on Leases..........................................113
7.11 Sales and Lease-Backs..........................................114
7.12 Conduct of Business............................................114
7.13 Chapter11 Claims...............................................114
7.14 Agreements; Orders.............................................114
7.15 Fiscal Year....................................................115
Section 8. EVENTS OF DEFAULT..............................................115
8.1 Failure to Make Payments When Due..............................115
8.2 Default in Other Agreements....................................115
8.3 Breach of Certain Covenants....................................116
8.4 Breach of Warranty.............................................116
8.5 Other Defaults Under Loan Documents............................116
8.6 Bankruptcy Events..............................................116
8.7 Judgments and Attachments......................................118
8.8 Dissolution....................................................118
8.9 Employee Benefit Plans.........................................119
8.10 Material Adverse Effect........................................119
8.11 Change in Control..............................................119
8.12 Invalidity of Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations.....................................119
8.13 Canadian Bankruptcy Events.....................................119
8.14 Restructuring Advisor..........................................120
8.15 Termination of Material Contracts..............................120
Section 9. ADMINISTRATIVE AGENT...........................................121
9.1 Appointment....................................................121
9.2 Powers and Duties; General Immunity............................122
9.3 Independent Investigation by Lenders; No
Responsibility For Appraisal of Creditworthiness...............124
9.4 Right to Indemnity.............................................124
9.5 Successor Agents...............................................124
9.6 Collateral Documents and Guaranties............................125
9.7 Administrative Agent May File Proofs of Claim..................126
Section 10.MISCELLANEOUS..................................................126
10.1 Successors and Assigns; Assignments and
Participations in Loans and Letters of Credit..................126
10.2 Expenses.......................................................130
10.3 Indemnity......................................................132
10.4 Set-Off........................................................133
10.5 Ratable Sharing................................................133
10.6 Amendments and Waivers.........................................134
10.7 Independence of Covenants......................................137
10.8 Notices; Effectiveness of Signatures...........................137
10.9 Survival of Representations, Warranties
and Agreements.................................................137
10.10 Failure or Indulgence Not Waiver;
Remedies Cumulative............................................138
10.11 Marshalling; Payments Set Aside................................138
10.12 Obligations Several; Independent Nature of
Lenders' Rights; Damage Waiver.................................138
10.13 Headings.......................................................139
10.14 Applicable Law.................................................139
10.15 Construction of Agreement......................................139
10.16 Consent to Jurisdiction and Service of Process.................139
10.17 Waiver of Jury Trial...........................................140
10.18 Confidentiality................................................141
10.19 Release of Parties; Waivers....................................141
10.20 No Fiduciary Duty..............................................143
10.21 Counterparts; Effectiveness....................................143
10.22 Parties Including Trustees; Court Proceedings..................143
Signature pages S-1
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF TRANCHE A NOTE
IV-B FORM OF TRANCHE B NOTE
V FORM OF COMPLIANCE CERTIFICATE
VI FORM OF ASSIGNMENT AGREEMENT
VII FORM OF SUBSIDIARY GUARANTY
VIII FORM OF SECURITY AGREEMENT
IX FORM OF INTERIM BORROWING ORDER
X [INTENTIONALLY OMITTED]
XI FORM OF MONTHLY BUDGET
XII FORM OF BORROWING SUBSIDIARY AGREEMENT
XIII MATTERS TO BE COVERED IN THE OPINIONS OF COUNSEL TO LOAN PARTIES
XIV FORM OF MORTGAGE
XV FORM OF FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
SCHEDULES
1.1A EXISTING L/Cs
1.1B EQUITY BONDS
1.1C PRINCIPAL LEASE, SERVICE AND OPERATING AGREEMENTS
1.1D INTERIM BORROWING ORDER EXISTING L/Cs
1.1E FINAL BORROWING ORDER EXISTING L/Cs
1.1F APPROVED ASSET SALES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
2.4A(iii)(f) DEBT SERVICE RESERVE ACCOUNTS
3.1A(i) TRANCHE A LETTER OF CREDIT OBLIGATIONS
4.1K CLOSING DATE MORTGAGED PROPERTIES
4.1Q CASH MANAGEMENT SYSTEM
5.1 COMPANY AND SUBSIDIARIES
5.5B REAL PROPERTY
5.5C INTELLECTUAL PROPERTY
5.6 LITIGATION
5.8A CERTAIN ALLEGED DEFAULTS
5.8C MATERIAL CONTRACTS
5.11 MATTERS RELATING TO EMPLOYEE BENEFIT PLANS
5.13 ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.3(iv) ADDITIONAL PERMITTED INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.11 CERTAIN PREPETITION LEASING TRANSACTIONS
COVANTA ENERGY CORPORATION
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This DEBTOR-IN-POSSESSION CREDIT AGREEMENT is dated as of April 1,
2002 and entered into by and among COVANTA ENERGY CORPORATION, a Delaware
corporation ("Company"), as a debtor and a debtor-in-possession; EACH OF
COMPANY'S U.S. SUBSIDIARIES LISTED ON THE SIGNATURE PAGES HEREOF, each as a
debtor and a debtor-in-possession (each such Subsidiary and Company individually
referred to herein as a "Borrower" and, collectively (together with any
Additional Subsidiary Borrowers (this and other capitalized terms used in the
recitals hereto without definition being used as defined in subsection 1.1)), on
a joint and several basis, as "Borrowers"); THE FINANCIAL INSTITUTIONS LISTED ON
THE SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender"
and collectively as "Lenders"); DEUTSCHE BANK AG, NEW YORK BRANCH ("Deutsche
Bank"), as documentation agent for Lenders (in such capacity, "Documentation
Agent"); and BANK OF AMERICA, N.A. ("BofA"), as administrative agent for Lenders
(in such capacity, "Administrative Agent").
R E C I T A L S
WHEREAS, on April 1, 2002 (the "Petition Date"), each Borrower filed
a voluntary petition for relief under the Bankruptcy Code with the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court")
(such proceedings being jointly administered under Case Nos. 02-_____ through
02-_____ are hereinafter referred to as the "Chapter 11 Cases"), and each
Borrower continues to operate its businesses and manage its properties as a
debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Borrowers have requested Lenders to provide, subject to the
terms and conditions contained herein, debtor-in-possession revolving credit
facilities of up to $115,000,000 in the aggregate for the Borrowers, including
(i) a credit line for cash borrowings of up to $100,800,000, and (ii) a letter
of credit subfacility of up to $14,200,000 to issue letters of credit, as set
forth herein, and Lenders are willing to extend such post-Petition Date credit
to Borrowers in accordance with and on the terms and conditions set forth
herein;
WHEREAS, Company, certain of the Borrowers and other Subsidiaries of
Company and Prepetition Lenders are parties to the Prepetition Credit Agreement,
under which the Existing L/Cs have been issued for the account of Company and
certain Borrowers and other Subsidiaries of Company; and
WHEREAS, issuing and/or maintaining such Existing L/Cs outstanding
under the Prepetition Credit Agreement permitted Borrowers to continue to
operate and accommodated Borrowers' efforts to reorganize and commence the
Chapter 11 Cases; and
WHEREAS, Lenders are willing to provide the debtor-in-possession
revolving credit facilities described above only if (i) such Existing L/Cs can
be replaced by letters of credit issued or deemed issued under a
debtor-in-possession letter of credit facility of up to $367,853,962 in the
aggregate for the Borrowers, subject to the terms and conditions contained
herein, (ii) all Obligations of Borrowers (including the obligations with
respect to the replacement letters of credit referred to in the preceding clause
(i)) shall constitute allowed administrative expense claims in the Chapter 11
Cases as set forth herein, and (iii) all Obligations shall be secured by Liens
having the priority set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders and Agents agree
as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Additional Subsidiary Borrower" has the meaning assigned to that
term in subsection 6.8E.
"Adequate Protection Provisions" means those provisions in the
Interim Borrowing Order and the Final Borrowing Order providing Prepetition
Lenders the adequate protection set forth therein.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5.
"Advance Limit" means, with respect to Tranche A Loans (other than
Tranche A Loss Sharing Loans and Tranche A Loans made pursuant to subsection
3.3B), (i) as of any date from the Closing Date until the entry of the Final
Borrowing Order, $20,000,000, and (ii) thereafter, as of any date of
determination during any calendar month set forth below, the aggregate amount
set forth below for such calendar month:
Calendar Month Advance Limit
----------------- -----------------
April 2002 $25,000,000
May 2002 $60,000,000
June 2002 $55,000,000
July 2002 $40,000,000
August 2002 $40,000,000
September 2002 $40,000,000
October 2002 $40,000,000
November 2002 $50,000,000
December 2002 $40,000,000
January 2003 $40,000,000
February 2003 $40,000,000
March 2003 $40,000,000
April 2003 $40,000,000
; provided, however, that in the event the Thai Asset Sale is consummated
(whether prior to or after the Closing Date), each of the amounts set forth in
the table above shall be reduced by $20,000,000 commencing with the amount for
the calendar month in which the Thai Asset Sale is consummated or, if later,
April 2002.
"Affected Lender" has the meaning assigned to that term in subsection
2.6C.
"Affected Loans" has the meaning assigned to that term in subsection
2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person (other than exclusively as a result of such Person's
role as a Project manager or operator), whether through the ownership of voting
securities or by contract or otherwise.
"Agents" means Administrative Agent and Documentation Agent, and
"Agent" means either one of them.
"Agreement" means this Debtor-in-Possession Credit Agreement dated as
of April 1, 2002, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"Applicable Conversion Date" means (i) with respect to the Existing
L/Cs listed on Schedule 1.1D, the date of entry of the Interim Borrowing Order,
and (ii) with respect to the Existing L/Cs listed on Schedule 1.1E, the date of
entry of the Final Borrowing Order.
"Approved Asset Sales" means, collectively, the sales of the
Subsidiaries, divisions or businesses of Company and its Subsidiaries (including
the equity interests of certain Subsidiaries and their assets or of Company's or
any of its Subsidiaries' interests in Projects) described on Schedule 1.1F
annexed hereto.
"Approved Fund" means a Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Asset Sale" means the sale by Company or any of its Subsidiaries to
any Person of (i) any of the stock of any of Company's Subsidiaries, (ii)
substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries (other than (a) inventory sold
in the ordinary course of business and (b) any such other assets to the extent
that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $250,000 or less and the aggregate
value of all such other assets since the Closing Date is equal to $1,000,000 or
less), and shall include any Approved Asset Sale; provided, however, that Asset
Sales shall not include (1) any sale or discount, in each case without recourse,
of accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof as permitted under
subsection 7.7(iv), (2) any sale or exchange of specific items of equipment, so
long as the purpose of each such sale or exchange is to acquire (and results
within 90 days of such sale or exchange in the acquisition of) replacement items
of equipment which are the functional equivalent of the item of equipment so
sold or exchanged, or (3) disposals of obsolete, worn out or surplus property in
the ordinary course of business.
"Assignment Agreement" means an Assignment Agreement in substantially
the form of Exhibit VI annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Bankruptcy Court" has the meaning assigned to that term in the
recitals to this Agreement.
"Base Rate" means, at any time, the higher of (i) the Prime Rate or
(ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
Any change in the Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective on the effective date of such change.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"Base Rate Margin" means a per annum rate equal to 2.50%.
"BofA" has the meaning assigned to that term in the introduction to
this Agreement.
"Borrowers" has the meaning assigned to that term in the introduction
to this Agreement.
"Borrowing Orders" means the Interim Borrowing Order and the Final
Borrowing Order.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement, in substantially the form of Exhibit XII annexed hereto.
"Budget Period" means, as of any date of determination, the date from
the Petition Date through and including the Stated Maturity Date (determined as
of such date of determination).
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Eurodollar Rate or
any Eurodollar Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Canadian Subsidiaries" means any or all of the Subsidiaries of
Company incorporated or otherwise organized under the laws of Canada or any
province of Canada.
"Capital Expenditures" means cash expenditures by Company and its
Subsidiaries that, in conformity with GAAP, would be included in "additions to
property, plant or equipment" or comparable items reflected in the consolidated
statement of cash flows of Company and its Subsidiaries for the relevant period.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" means the capital stock or other equity interests of
a Person.
"Carve-Outs" has the meaning assigned to that term in subsection
2.10.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Balance" means, as at any time of determination, the sum of the
dollar amount of all money, currency, Domestic Cash Equivalents and credit
balances held or carried in the Concentration Accounts, after giving effect to
checks issued and outstanding and any administrative holds assessed by the
financial institution maintaining the Concentration Accounts.
"Cash Collateral Account" has the meaning assigned to that term in
the Prepetition Loan Documents.
"Cash Management System" means the cash management system of
Borrowers described in Schedule 4.1Q annexed hereto.
"CCAA" means the Companies' Creditors Arrangement Act (Canada), as
now and hereafter in effect, or any successor statute or statutes.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C.ss.9601 et seq.), or any
successor statute, and all implementing regulations promulgated thereunder.
"Change in Control" means the acquisition of beneficial ownership or
control, directly or indirectly, by any Person acting alone or in concert with
one or more other Persons, of Securities of Company (or other Securities
convertible into such Securities) representing 30% or more of the combined
voting power of all Securities of Company entitled to vote in the election of
members of the Governing Body of Company, other than Securities having such
power only by reason of the happening of a contingency.
"Chapter 11 Cases" has the meaning assigned to that term in the
recitals to this Agreement.
"Class" means, as applied to Lenders, each of the following classes
of Lenders: (i) Tranche A Lenders and (ii) Tranche B Lenders.
"Closing Date" means the date on which each of the conditions
described in subsection 4.1 have been satisfied or waived by Agents and
Requisite Lenders.
"Collateral" means, collectively, all of the real, personal and mixed
property (including Capital Stock) in which Liens are purported to be granted
pursuant to the Collateral Documents, the Interim Borrowing Order and the Final
Borrowing Order as security for the Obligations.
"Collateral Accounts" means (i) the Cash Collateral Account, (ii) the
concentration account maintained with BofA in the Cash Management System and
(iii) the primary operating accounts maintained with BofA for Covanta Energy
Group, Covanta Power, Covanta Holdings and Covanta Water Systems, Inc.;
provided, that Collateral Accounts shall in no event include (x) any foreign
accounts or (y) any debt service reserve accounts or cash collateral accounts
established to make payments of Limited Recourse Debt.
"Collateral Documents" means the Security Agreement, the Foreign
Pledge Agreements, the Mortgages and all other instruments or documents
delivered from time to time by any Loan Party pursuant to this Agreement, any of
the other Loan Documents or an applicable order of the Bankruptcy Court in order
to grant to Administrative Agent, on behalf of Lenders, a Lien on any real,
personal or mixed property of that Loan Party as security for the Obligations.
"Commitments" means one or more of the Tranche A Commitments or the
Tranche B Commitments or any combination thereof.
"Commodities Agreement" means any long-term or forward purchase
contract or option contract to buy, sell or exchange commodities or similar
agreement or arrangement to which Company or any of its Subsidiaries is a party
unless, under the terms of such contract, option contract agreement or
arrangement Company expects to make or take delivery of the commodities which
are the subject thereof.
"Company" has the meaning assigned to that term in the introduction
to this Agreement.
"Competitor" means any Person (and its Affiliates) primarily engaged
in the business of the generation and sale of electricity.
"Compliance Certificate" means a certificate substantially in the
form of Exhibit V annexed hereto.
"Concentration Accounts" means the Concentration Accounts for the
Cash Management System as identified in Schedule 4.1Q annexed hereto.
"Consolidated Operating Income" means, for any period, the amount for
such period of "Consolidated Operating Income", whether such item is so titled
or otherwise titled, as reflected in the "Consolidated Statement of Income and
Comprehensive Income" (whether so titled or otherwise titled) of Company and its
Subsidiaries prepared in conformity with GAAP and reported in a manner
consistent with Company's reporting of such amounts in Company's quarterly or
annual report (as the case may be) on Form 10Q or 10K, respectively, prior to
the Closing Date.
"Contingent Obligation", as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person (i) with respect
to any Indebtedness, lease, dividend or other obligation of another if the
primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, (iii) under Hedge Agreements, or (iv) with respect to performance
bonds, construction bonds, surety bonds or other similar instruments (or with
respect to the procurement or provision thereof) provided or to be provided by
another Person. Contingent Obligations shall include (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (1) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (2) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (1) or (2) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount (if stated) of the obligation
so guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited, or, if the amount of any
Contingent Obligation is not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by Company in good faith
based upon reasonable assumptions. No obligations under Performance Guaranties
shall constitute Contingent Obligations.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, or option contract to buy, sell or exchange currencies or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
"Defaulted Loan" has the meaning assigned to that term in subsection
2.9.
"Defaulted Participation" has the meaning assigned to that term in
subsection 2.9.
"Default Excess" has the meaning assigned to that term in subsection
2.9.
"Defaulting Lender" has the meaning assigned to that term in
subsection 2.9. "Default Period" has the meaning assigned to that term in
subsection 2.9.
"Deposit Account" means a demand, time, savings, passbook or similar
account maintained with a Person engaged in the business of banking, including a
savings bank, savings and loan association, credit union or trust company.
"Deutsche Bank" has the meaning assigned to that term in the
introduction to this Agreement.
"Documentation Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Documentation Agent appointed pursuant to subsection 9.5.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Domestic Cash Equivalents" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within 30 days
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within 30 days after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's ("S&P") or Xxxxx'x Investors Service,
Inc. ("Moody's"); (iii) commercial paper maturing no more than 30 days from the
date of creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates
of deposit or bankers' acceptances maturing within 30 days after such date and
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000; (v) shares of
any money market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii)
above, (b) has net assets of not less than $500,000,000, and (c) has the highest
rating obtainable from either S&P or Moody's; and (vi) such other securities as
Company and Agents may agree on from time to time.
"Domestic Subsidiary" means any Subsidiary of any Borrower that is
incorporated or organized under the laws of the United States of America, any
state thereof or in the District of Columbia.
"Eligible Assignee" means (i) any Person which is a holder of
Prepetition Obligations at the time of the relevant assignment and which is (a)
a commercial bank organized under the laws of the United States or any state
thereof; (b) a savings and loan association or savings bank organized under the
laws of the United States or any state thereof; (c) a commercial bank organized
under the laws of any other country or a political subdivision thereof; provided
that (1) such bank is acting through a branch or agency located in the United
States or (2) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development or a
political subdivision of such country; or (d) any other financial institution
that extends credit or buys loans as one of its businesses; (ii) any Lender and
any Affiliate of any Lender; or (iii) any other Person designated as an Eligible
Assignee pursuant to the prior written consent of Agents in their sole
discretion; provided that neither Company nor any Affiliate of Company nor any
Competitor shall be an Eligible Assignee; and provided further that, in order to
be an Eligible Assignee, a Person must have at the time of determination a long
term senior unsecured debt rating of "A2" or better from Moody's and/or "A" or
better from S&P.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is maintained or contributed to by Company, any
of its Subsidiaries or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, or (ii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"Environmental Laws" means any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any Facility.
"Equity Bonds" means, collectively, the Indebtedness of certain
Subsidiaries of Company outstanding on the Closing Date with respect to the bond
issuances described on Schedule 1.1B annexed hereto, in each case as such bonds
may hereafter be amended, supplemented or otherwise modified to the extent
permitted under this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment of a material amount under Section 412(m) of the Internal Revenue
Code with respect to any Pension Plan or the failure to make any required
contribution of a material amount to a Multiemployer Plan; (iii) the provision
by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA
of a notice of intent to terminate such plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such Pension
Plan resulting in liability of Company or any of its Subsidiaries pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition would
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of liability on Company, any of its Subsidiaries or any of
their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if it would reasonably be
expected that Company or any of its Subsidiaries will incur material liability
therefor, or the receipt by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (ix)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or of the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (x) the imposition of a Lien on the property of
Company or any of its Subsidiaries pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the rate per annum (rounded upward to the nearest
1/16 of one percent) that appears on the Dow Xxxxx Markets (Telerate) page 3750
(or such other comparable page as may, in the opinion of Administrative Agent,
replace such page for the purpose of displaying such rate) with maturities
comparable to such Interest Period as of approximately 10:00 a.m. (London time)
on such Interest Rate Determination Date by (ii) a percentage equal to 100%
minus the stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves) applicable on such
Interest Rate Determination Date to any member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Eurodollar Rate as provided in subsection 2.2A.
"Eurodollar Rate Margin" means a per annum rate equal to 3.50%.
"Event of Default" has the meaning assigned to that term in Section
8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Excluded Subsidiary" means each Domestic Subsidiary of Company which
(i) has not filed a petition for relief under the Bankruptcy Code and (ii) is a
Subsidiary for which becoming a Borrower or a Subsidiary Guarantor would
constitute a material violation of (a) a valid and enforceable Contractual
Obligation in favor of a Person other than Company or any of its Subsidiaries
for which the required consents have not been obtained or (b) applicable law
affecting such Subsidiary, provided that any such Subsidiary of Company shall
cease to be covered under this clause (ii) at such time as such Subsidiary's
becoming a Borrower or a Subsidiary Guarantor would no longer constitute a
material violation of such Contractual Obligation or applicable law, whether as
a result of obtaining the required consents or otherwise. A Domestic Subsidiary
of Company formed after the Closing Date may become an Excluded Subsidiary if
Company notifies Administrative Agent that (i) such Subsidiary has no material
assets other than contracts, permits, licenses and similar contracts and
instruments connected to the development of a Project otherwise permitted under
this Agreement and (ii) in connection with such Project it is necessary to enter
into a valid and enforceable Contractual Obligation in favor of a Person other
than Company or any of its Subsidiaries for which the required consents have not
been obtained. Upon such notice Administrative Agent shall promptly take such
actions as are necessary to relinquish the security interest in such Subsidiary.
"Existing L/C" means each letter of credit outstanding as of the
Closing Date that is described on Schedule 1.1A annexed hereto, as each such
letter of credit may be amended, restated, supplemented or otherwise modified as
permitted under this Agreement, and "Existing L/Cs" means all such letters of
credit, collectively.
"Existing L/C Issuer" means, with respect to any Existing L/C, the
Lender that issued such Existing L/C.
"Facilities" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by any Borrower or any of its
Subsidiaries or any of their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C.ss.136 et seq.), or any successor statute, and all
implementing regulations promulgated thereunder.
"Final Borrowing Order" means an order substantially in the form of
the Interim Borrowing Order (with any modifications thereto approved by Agents
and Requisite Lenders (or all Lenders if required pursuant to clause (iii) of
the following proviso) in their sole discretion) entered by the Bankruptcy Court
in the Chapter 11 Cases after a final hearing under Bankruptcy Rule 4001(c)(2),
as the same may be amended, supplemented or otherwise modified from time to
time; provided, however, that such order shall not be deemed the Final Borrowing
Order for purposes of this Agreement unless (i) at least eleven (11) days have
elapsed since the entry of such order, (ii) such order has not been reversed or
stayed by the Bankruptcy Court or any other court of competent jurisdiction,
(iii) such order is in full force and effect substantially in the form of the
Interim Borrowing Order without amendment, supplement or other modification
other than amendments, supplements or modifications made with the express
written consent or joinder of Agents and Requisite Lenders and approved by the
Bankruptcy Court (provided, however, that the express written consent of all
Lenders shall be required in the event that such amendments, supplements or
modifications result in less than 50% of the original Tranche B Loan Exposure of
all Lenders having the priority and administrative claim status described in
subsection 2.10 as being applicable to the Obligations), and (iv) substantially
concurrent with the entry of such order, Borrowers shall have delivered to
Agents and Lenders a consolidated cash forecast for Company and its
Subsidiaries, in form consistent with the Monthly Budget delivered to Agents
pursuant to subsection 4.1F hereof (with line items for projected cash receipts
and cash expenditures corresponding to those in such Monthly Budget) and in
substance satisfactory to Requisite Lenders in their sole discretion, with
monthly projections for the immediately following month and each other month
remaining in the Budget Period, together with an explanation of the material
assumptions on which such projections are based. Any reference in this Agreement
(other than in this definition, in the definitions of "Applicable Conversion
Date" and "Termination Date", and in subsections 2.1A(ii), 2.4A(ii) and 8.6) and
the Loan Documents to the date of "entry" of the Final Borrowing Order shall be
deemed to refer to the date which is 11 days following the entry of such order,
so long as such order has not been reversed or stayed by the Bankruptcy Court or
any other court of competent jurisdiction.
"Final Order" means an order, judgment or other decree of the
Bankruptcy Court or any other court or judicial body with proper jurisdiction,
as the case may be, which is in full force and effect and which has not been
reversed, stayed, modified or amended and as to which (i) any right to appeal or
seek certiorari, review or rehearing has been waived or (ii) the time to appeal
or seek certiorari, review or rehearing has expired and as to which no appeal or
petition for certiorari, review or rehearing is pending.
"First Day Orders" means those orders entered by the Bankruptcy Court
as a result of motions and applications filed by Borrowers with the Bankruptcy
Court on the Petition Date (including the Project Cash Collateral Order), in
each case in form and substance as approved by Requisite Lenders pursuant to
subsection 4.1D.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31st of each calendar year.
"Flood Hazard Property" means any real property that is subject to a
Mortgage and is located in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards.
"Foreign Cash Equivalents" means, as at any date of determination,
(i) securities issued or directly and fully guaranteed by the government of the
country within which an Investment by Company or any of its Subsidiaries has
been or is being made and (ii) time deposits and certificates of deposit of
commercial banks having offices in such country, in each case with a long term
unsecured debt rating of at least equal to (a) the rating of the relevant
government, in the event that such government is rated below investment grade by
either Moody's or S&P, or when there is no Moody's or S&P rating of such
government, (b) investment grade in the event that the relevant government is
rated above investment grade by either Moody's or S&P, or (c) "A" or better to
the extent that the relevant government is rated better than "A" by either
Moody's or S&P, and (iii) such other securities as Company and Administrative
Agent may agree on from time to time.
"Foreign Pledge Agreement" means each pledge agreement or similar
instrument governed by the laws of a country other than the United States,
executed on the Closing Date or from time to time thereafter in accordance with
subsection 6.8C by any Borrower or any Domestic Subsidiary that owns Capital
Stock of one or more Foreign Subsidiaries organized in such country, in form and
substance satisfactory to Administrative Agent, as such Foreign Pledge Agreement
may be amended, restated, supplemented or otherwise modified from time to time.
"Foreign Subsidiary" means any Subsidiary of any Borrower that is not
a Domestic Subsidiary.
"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.
"Funding and Payment Office" means (i) the office of Administrative
Agent located at 1 Independence Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, X.X.
00000 or (ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to Company and each Lender.
"Funding Borrower" has the meaning assigned to that term in
subsection 2.11C.
"Funding Date" means the date of the funding of a Loan.
"Funding Default" has the meaning assigned to that term in subsection
2.9.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, accounting principles generally accepted in the
United States of America set forth in opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as are approved
by the American Institute of Certified Public Accountants.
"Governing Body" means the board of directors or other body having
the power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"Government Authority" means any political subdivision or department
thereof, any other governmental or regulatory body, commission, central bank,
board, bureau, organ or instrumentality or any court, in each case whether
federal, state, local or foreign.
"Governmental Authorization" means any permit, license, registration,
authorization, plan, directive, consent, order or consent decree of or from, or
notice to, any Government Authority.
"Gross Receipts" means, in respect of any Asset Sale, the total Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale minus any repayment of debt related to
the assets sold in such Asset Sale which is made in connection therewith and is
not prohibited under this Agreement.
"Group" has the meaning assigned to that term in the Intercreditor
Agreement.
"Hazardous Materials" means (i) any chemical, material or substance
at any time defined as or included in the definition of (a) "hazardous wastes"
or "mixed wastes" as defined in RCRA or in any other Environmental Law; (b)
"hazardous substances", "pollutants" or "contaminants" as defined in CERCLA or
in any other Environmental Law; (c) "chemical substances" or "mixtures" as
defined in TSCA or any other substance which is tested pursuant to TSCA or any
other Environmental Law, or the manufacture, processing, distribution, use or
disposal of which is regulated or prohibited pursuant to TSCA or any other
Environmental Law, including without limitation polychlorinated biphenyls and
electrical equipment which contains any oil or dielectric fluid containing
regulated concentrations of polychlorinated biphenyls; (d) "insecticides",
"fungicides", "pesticides" or "rodenticides" as defined in FIFRA or any other
Environmental Law; or (e) "infectious waste" or "biohazardous waste" as defined
in any Environmental Law; (ii) asbestos or any asbestos-containing materials;
(iii) urea formaldehyde foam insulation; (iv) any oil, petroleum, petroleum
fraction or petroleum derived substance; (v) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (vi) any flammable
substances or explosives; (vii) any radioactive materials; and (viii) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to the indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"Indebtedness", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services received by such Person (excluding any such obligations
incurred under ERISA), which purchase price is (a) due more than six months from
the date of incurrence of the obligation in respect thereof or (b) evidenced by
a promissory note or similar written instrument, but excluding in either case
current trade payables incurred in the ordinary course of business and payable
in accordance with customary practices, (v) Synthetic Lease Obligations, and
(vi) all indebtedness secured by any Lien on any property or asset owned by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person. Any
obligations under Interest Rate Agreements and Currency Agreements constitute
(1) in the case of Hedge Agreements, Contingent Obligations, and (2) in all
other cases, Investments, and in neither case constitute Indebtedness. For
purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless the Indebtedness of such partnership
or joint venture is expressly Limited Recourse Debt of such partnership or joint
venture.
"Indemnified Liabilities" has the meaning assigned to that term in
subsection 10.3.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Initial CCAA Order" means an order made by a Canadian court of
competent jurisdiction under the CCAA declaring that all or any Canadian
Subsidiaries are companies to which the CCAA applies, authorizing such Canadian
Subsidiaries to file a plan or plans of compromise or arrangement under the
CCAA, staying any proceedings taken or that might be taken in respect of such
Canadian Subsidiaries except as expressly provided therein, and granting certain
other ancillary relief.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, software, know-how and processes used in or necessary
for the conduct of the business of Borrowers and their Subsidiaries as currently
conducted that are material to the condition (financial or otherwise), business
or operations of Borrowers and their Subsidiaries, taken as a whole.
"Intercompany Notes" means promissory notes evidencing Indebtedness
of Subsidiaries of Company that (a) to the extent the Indebtedness evidenced
thereby is owed to any Borrower or any Subsidiary Guarantor, is pledged pursuant
to the Collateral Documents, (b) is senior Indebtedness of such Subsidiary
(except to the extent that requiring such Indebtedness to be senior would breach
a contractual obligation binding on such Subsidiary), except that any such
Indebtedness owed by any Subsidiary Guarantor to any Subsidiary which is not a
Borrower shall be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable notes, and (c) provide that
any payment by any Subsidiary Guarantor under any guaranty of the Obligations
shall result in a pro tanto reduction of the aggregate amount of the
intercompany Indebtedness owed by such Subsidiary Guarantor to Borrowers or to
any of its Subsidiaries for whose benefit such payment is made.
"Intercreditor Agreement" has the meaning assigned to that term in
the Prepetition Credit Agreement, and includes the amendment thereto to be
executed pursuant to subsection 4.1S in substantially the form attached hereto
as Exhibit XV.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
the last Business Day of each month, commencing on the first such date to occur
after the Closing Date, and (ii) with respect to any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan.
"Interest Period" has the meaning assigned to that term in subsection
2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which any Borrower or any of Subsidiary of any
Borrower is a party.
"Interest Rate Determination Date", with respect to any Interest
Period, means the second Business Day prior to the first day of such Interest
Period.
"Interim Borrowing Order" means an order in substantially the form
attached hereto as Exhibit IX (with any modifications thereto approved by Agents
in their sole discretion) entered by the Bankruptcy Court in the Chapter 11
Cases after an interim hearing under Bankruptcy Rule 4001(c)(2), as the same may
be amended, supplemented or otherwise modified from time to time with the
express written consent or joinder of Agents and Requisite Lenders and approved
by the Bankruptcy Court.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business, (iv) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements, or (v) Commodities Agreements. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.
"IP Collateral" means, collectively, the Intellectual Property that
constitutes Collateral.
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender that agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsections 3.1B(i) and 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"Leasehold Property" means any leasehold interest of any Loan Party
(other than a Foreign Subsidiary) as lessee under any lease of real property.
"Lender" and "Lenders" means the Persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.1.
"Letter of Credit" or "Letters of Credit" means one or more of the
Tranche A Letters of Credit or Tranche B Letters of Credit or any combination
thereof.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Limited Recourse Debt" means, with respect to any Subsidiary of
Company, Indebtedness of such Subsidiary with respect to which the recourse of
the holder or obligee of such Indebtedness is limited to (i) assets associated
with the Project (which in any event shall not include assets held by any
Borrower other than a Borrower, if any, whose sole business is the ownership
and/or operation of such Project and substantially all of whose assets are
associated with such Project) in respect of which such Indebtedness was incurred
and/or (ii) such Subsidiary or the equity interests in such Subsidiary, but in
the case of clause (ii) only if such Subsidiary's sole business is the ownership
and/or operation of such Project and substantially all of such Subsidiary's
assets are associated with such Project. For purposes of this Agreement,
Indebtedness of a Subsidiary of Company shall not fail to be Limited Recourse
Debt solely by virtue of the fact that the holders of such Limited Recourse Debt
have recourse to Company or another Subsidiary of Company pursuant to a
Contingent Obligation supporting such Limited Recourse Debt or a Performance
Guaranty, so long as such Contingent Obligation or Performance Guaranty is
permitted under subsection 7.4 of this Agreement.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Borrowers in favor of an Issuing Lender relating to,
the Letters of Credit), the Subsidiary Guaranty and the Collateral Documents.
"Loan Exposure" means, with respect to any Lender, as of any date of
determination, the sum of (i) that Lender's Tranche A Loan Exposure and (ii)
that Lender's Tranche B Loan Exposure.
"Loan Party" means each Borrower and any of Company's Subsidiaries
from time to time executing the Subsidiary Guaranty, and "Loan Parties" means
all such Persons, collectively.
"Loan" or "Loans" means one or more of the Tranche A Loans or Tranche
B Loans or any combination thereof.
"Mandatory Payment" means any amount described in subsections
2.4A(iii)(a)-(g) to be applied as a prepayment of the Loans and/or a permanent
reduction of the Commitments, as determined pursuant to subsection 2.4A(iv).
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of Borrowers, taken as a whole, or Company and its Subsidiaries,
taken as a whole, or (ii) the impairment of the ability of any Loan Party to
perform, or of Administrative Agent or Lenders to enforce, the Obligations.
"Material Contract" means (i) the principal lease agreement, if any,
and the principal service or operating agreement, if any, with respect to each
waste-to-energy Project and the principal lease agreement, if any, with respect
to each independent power plant Project to which Company or any of its
Subsidiaries is a party, each of which is in existence as of the Closing Date
and is described on Schedule 1.1C annexed hereto, and (ii) any other contract or
other arrangement to which Company or any of its Subsidiaries is a party (other
than the Loan Documents) for which breach, nonperformance, cancellation or
failure to renew would reasonably be expected to have a Material Adverse Effect.
"Material Leasehold Property" means a Leasehold Property reasonably
determined by Administrative Agent to be of material value as Collateral or of
material importance to the operations of Company or any of its Subsidiaries.
"Material Subsidiary" means each Subsidiary of Company now existing
or hereafter acquired or formed by Company which, on a consolidated basis for
such Subsidiary and all of its Subsidiaries, (i) for the most recent Fiscal Year
accounted for more than 1% of the consolidated revenues of Company and its
Subsidiaries, (ii) as at the end of such Fiscal Year, was the owner of more than
1% of the consolidated assets of Company and its Subsidiaries, or (iii) is
capitalized with more than $500,000 of equity.
"Minimum Cumulative Consolidated Operating Income Schedule" has the
meaning assigned to that term in subsection 6.1(xxi).
"Monthly Budget" means, initially, the consolidated cash flow
projections delivered by Borrowers to Agents pursuant to subsection 4.1F for
each month ending during the Budget Period, setting forth on a line-item basis
monthly anticipated cash receipts and disbursements; provided that, upon
approval by Agents or Requisite Lenders, as the case may be, of any monthly cash
flow projections delivered pursuant to subsection 6.1(xix)(a) or pursuant to
clause (iv) of the definition of "Final Borrowing Order", the Monthly Budget
shall be deemed supplemented and/or restated with respect to the following month
and each month thereafter in the Budget Period by the projections for each such
month covered by such approved cash flow projections.
"Mortgage" means (i) a security instrument (whether designated as a
deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, substantially in the form of Exhibit XIV annexed hereto or in
such other form as may be approved by Administrative Agent in its sole
discretion, in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent's option,
in the case of any real property or Material Leasehold Property that is the
subject of subsection 6.9, an amendment to an existing Mortgage, in form
satisfactory to Administrative Agent, in either case as such security instrument
or amendment may be amended, restated, supplemented or otherwise modified from
time to time. "Mortgages" means all such instruments collectively, whether
executed as of or subsequent to the Closing Date.
"Multiemployer Plan" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale,
Gross Receipts received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable prior to the earlier of (a) the date
which is one year from the date of such Asset Sale and (b) the Stated Maturity
Date (determined on the date of such Asset Sale) as a result of any gain
recognized in connection with such Asset Sale, (ii) additional Taxes actually
payable upon the closing of such Asset Sale (including any transfer Taxes or
Taxes on gross receipts), (iii) reasonable out-of-pocket fees and expenses
(including reasonable legal fees) paid to Persons other than Company and its
Subsidiaries and their respective Affiliates and counsel and advisors in
connection with such Asset Sale (including fees necessary to obtain any required
consents of such Persons to such Asset Sale), and (iv) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is (x) secured by a valid, enforceable
and perfected Lien on the stock or assets in question that is permitted under
subsection 7.2 and (y) required to be repaid under the terms of such
Indebtedness as a result of such Asset Sale (without duplication of amounts
deducted in calculating the Gross Receipts from such Asset Sale) and is
permitted to be paid under the Loan Documents.
"Net Insurance/Condemnation Proceeds" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof provided, however, that Net
Insurance/Condemnation Proceeds shall be reduced in an amount equal to the
amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to agreements in effect on the Closing Date (to the extent such
requirements are enforceable during the Chapter 11 Cases), or which were entered
into after the Closing Date with respect to the financing or acquisition of a
Project, to use for purposes other than a Mandatory Payment.
"Net Securities Proceeds" means the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses approved by
the Bankruptcy Court) from the (i) issuance of Capital Stock of or incurrence of
Indebtedness by Company or any of its Subsidiaries and (ii) capital
contributions made to Company or its Subsidiaries by a holder of Capital Stock
of Company.
"NHL Priority Loan Letter Agreement" means the letter agreement by
and among the National Hockey League, Senators Hockey Club, Fleet National Bank,
Canadian Imperial Bank of Commerce and the other "Secured Parties" named therein
regarding, inter alia, certain priority loans by the National Hockey League to
Senators Hockey Club, in the form delivered to the Prepetition Agents on or
prior to March 14, 2001.
"Non-US Lender" means a Lender that is organized under the laws of
any jurisdiction other than the United States or any state or other political
subdivision thereof.
"Note" or "Notes" means one or more of the Tranche A Notes or Tranche
B Notes or any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit II annexed hereto.
"Obligations" means (i) all obligations of every nature of Loan
Parties under the Loan Documents, including any liability of such Loan Party on
any claim, whether or not the right to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed or contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether or not
such claim is discharged, stayed or otherwise affected by any bankruptcy,
insolvency, reorganization or other similar proceeding, and (ii) all obligations
of every nature of Loan Parties arising from time to time under the loss sharing
arrangements set forth in Section 5.3 of the Intercreditor Agreement, including
obligations on account of withholding taxes imposed on such arrangements.
Without limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by any Borrower and any other Loan Party
under any Loan Document and (b) the obligation to reimburse any amount in
respect of any of the foregoing that any Agent or any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Borrower or other Loan
Party.
"Officer" means the president, chief executive officer, a vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"Officer's Certificate" means, as applied to any Person that is a
corporation, partnership, trust or limited liability company, a certificate
executed on behalf of such Person by one or more Officers of such Person or one
or more Officers of a general partner or a managing member if such general
partner or managing member is a corporation, partnership, trust or limited
liability company; provided, that any Officer's Certificate delivered pursuant
to subsection 2.4A(iii)(h), 4.2B(x) or 6.1(v) shall be executed by a senior
financial officer of Company reasonably acceptable to Administrative Agent.
"Operating Lease", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"Organizational Documents" means the documents (including Bylaws, if
applicable) pursuant to which a Person that is a corporation, partnership, trust
or limited liability company is organized.
"Participant" means a purchaser of a participation in the rights and
obligations under this Agreement pursuant to subsection 10.1C.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Performance Guaranty" means any guaranty or similar agreement
entered into by Company or any of its Subsidiaries under which Company or any
such Subsidiary is obligated to support or make payments of Indebtedness if
Company or any of its Subsidiaries breaches any agreement to construct or
operate a Project, and such obligation to support or make payments would, if it
were Indebtedness, not be Limited Recourse Debt.
"Permitted Encumbrances" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien expressly prohibited
by any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens and rights of
set-off of banks, statutory Liens of carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 5 days) are being contested
in good faith by appropriate proceedings, so long as (1) such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall
have been made for any such contested amounts, and (2) in the case of a
Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.7;
(v) leases or subleases granted to third parties in accordance with
any applicable terms of the Collateral Documents and not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries or resulting in a material diminution in the value
of any Collateral as security for the Secured Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and other
minor defects or irregularities in title to the real property of Company
and its Subsidiaries, in each case which do not and will not interfere in
any material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries or result in a material diminution in the value
of any Collateral as security for the Secured Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement, (b) restriction or encumbrance that
the interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause (b),
so long as the holder of such restriction or encumbrance agrees to
recognize the rights of such lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business of
Company and its Subsidiaries; and
(xii) licenses of Intellectual Property granted by Company or any of
its Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of Company
or such Subsidiary.
Other Liens on assets of Borrowers and their Subsidiaries permitted
under this Agreement (which are not Permitted Encumbrances) are described in
subsection 7.2A.
"Permitted Senators Transaction" has the meaning assigned to that
term in subsection 7.7(ix).
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Petition Date" has the meaning assigned to that term in the recitals
to this Agreement.
"Pledged Collateral" means, collectively, the "Pledged Collateral" as
defined in the Security Agreement and any Foreign Pledge Agreement.
"Pooled Facility Exposure" means, with respect to any Person as of
any date of determination, the "Pooled Facility Exposure" (as defined in the
Prepetition Credit Agreement) of such Person in its capacity as a Prepetition
Lender.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"Prepetition Agent" means the "Administrative Agent" under the
Prepetition Credit Agreement, in its capacity as administrative agent for the
Prepetition Lenders.
"Prepetition Collateral" means all "Collateral" as defined in the
Prepetition Credit Agreement.
"Prepetition Credit Agreement" means the Revolving Credit and
Participation Agreement dated as of March 14, 2001, among Company, certain of
its Subsidiaries, the financial institutions listed on the signature pages
thereof, Deutsche Bank, as Documentation Agent, and BofA, as Administrative
Agent, as amended, supplemented or otherwise modified through the Closing Date
and as it may hereafter be amended, supplemented or otherwise modified as
permitted under this Agreement.
"Prepetition Credit Documents" means all "Loan Documents" as defined
in the Prepetition Credit Agreement.
"Prepetition Indebtedness" means any Indebtedness or other liability
of any Loan Party or claim against any Loan Party (within the meaning of
Bankruptcy Code Section 101(5)) outstanding on the Petition Date, including
Prepetition Obligations.
"Prepetition Lenders" means the Persons identified as "Lenders" under
the Prepetition Credit Agreement, in their capacities as lenders under the
Prepetition Credit Agreement, together with their successors and permitted
assigns.
"Prepetition Liens" means valid, perfected and non-voidable Liens and
security interests granted for the benefit of the Prepetition Lenders and, as
and if required, for the benefit of certain other Persons pursuant to the
Prepetition Credit Documents.
"Prepetition Loan Party" means any "Loan Party" under the Prepetition
Credit Agreement, in their capacities as obligors under the Prepetition Credit
Agreement, and "Prepetition Loan Parties" means all such persons, collectively.
"Prepetition Obligations" means all "Obligations" as defined in the
Prepetition Credit Agreement.
"Prime Rate" means the rate that BofA announces from time to time as
its prime lending rate in effect for commercial borrowers in the United States,
as in effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
BofA or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Proceedings" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"Project" means any waste-to-energy facility, hydroelectric power
plant, cogeneration plant or other facility for the generation of electricity or
engaged in another line of business in which Company and its Subsidiaries are
permitted to be engaged hereunder for which a Subsidiary or Subsidiaries of
Company was, is or will be (as the case may be) an owner, operator, manager or
builder, and shall also mean any two or more of such plants or facilities in
which an interest has been acquired in a single transaction, so long as such
interest constitutes an Investment permitted under this Agreement; provided that
"Project" also means and includes the rights and obligations of Company and its
Subsidiaries relating to the business, operations, Indebtedness and Contingent
Obligations of the Senators Hockey Club and its Subsidiaries.
"Project Cash Collateral Order" means the order regarding the use of
Cash collateral of Borrowers entered by the Bankruptcy Court in the Chapter 11
Cases as a result of motions and applications filed by Borrowers with the
Bankruptcy Court on the Petition Date, as such order may be amended,
supplemented or otherwise modified from time to time with the express written
consent or joinder of Agents (and, if such amendment, supplement or other
modification is material and adverse to the interests of Borrowers and/or
Lenders, Requisite Lenders) and approved by the Bankruptcy Court.
"Pro Rata Share" means (i) with respect to all payments, computations
and other matters relating to the Tranche A Commitment or the Tranche A Loans of
any Lender or any Tranche A Letters of Credit issued or participations therein
deemed purchased by any Lender, the percentage obtained by dividing (x) the
Tranche A Loan Exposure of that Lender by (y) the aggregate Tranche A Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1; and (ii) with
respect to all payments, computations and other matters relating to the Tranche
B Commitment or the Tranche B Loans of any Lender or any Tranche B Letters of
Credit issued or participations therein deemed purchased by any Lender, the
percentage obtained by dividing (a) the Tranche B Loan Exposure of that Lender
by (b) the aggregate Tranche B Loan Exposure of all Lenders, in any such case as
the applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Lender for purposes of the
preceding sentence is set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended.
"RCRA" means the Resource Conservation and Recovery Act, as amended
(42 U.S.C.ss.6901 et seq.), or any successor statute, and all implementing
regulations promulgated thereunder.
"Real Property Asset" means, at any time of determination, any
interest then owned by any Loan Party (other than any Foreign Subsidiary) in any
real property.
"Register" has the meaning assigned to that term in subsection 2.1E.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing or migrating of Hazardous Materials into the indoor or
outdoor environment (including the abandonment, discarding or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"Request for Issuance" means a request substantially in the form of
Exhibit III annexed hereto.
"Requisite Class Lenders" means (i) with respect to Tranche A
Lenders, Tranche A Lenders having or holding more than 50% of the aggregate
Tranche A Loan Exposure of all Tranche A Lenders, and (ii) with respect to
Tranche B Lenders, Tranche B Lenders having or holding more than 50% of the
aggregate Tranche B Loan Exposure of all Tranche B Lenders.
"Requisite Lenders" means Lenders having or holding more than 50% of
the aggregate Loan Exposure of all Lenders.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Indebtedness of any
Borrower other than (a) Indebtedness of a Borrower owed solely to another
Borrower, (b) the Loans and the other Obligations, and (c) other amounts
required to be paid under this Agreement.
"Secured Obligations" means the obligations secured by the Collateral
pursuant to the Collateral Documents.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Security Agreement" means the Security Agreement executed and
delivered on the Closing Date, substantially in the form of Exhibit VIII annexed
hereto, as such Security Agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time.
"Senators Hockey Club" means Ottawa Senators Hockey Club Corporation
(as successor in interest to the Ottawa Senators Hockey Club Limited
Partnership).
"Senators Lease" means the License Agreement dated as of April 30,
1994, among Palladium Corporation, Xxxxx Palladium Services (Canada) Inc. and
Senators Hockey Club, as such agreement is in effect on the Closing Date and as
it may hereafter be amended, supplemented or otherwise modified from time to
time to the extent permitted hereunder.
"Senators Senior Subordination Agreement" means the Senior
Subordination and Postponement Agreement dated as of January 13, 1999, among,
inter alia, Company, Xxxxx Palladium Services (Canada) Inc., Senators Hockey
Club, Canadian Imperial Bank of Commerce and Fleet National Bank (each as agents
under certain credit facilities), as such agreement was in effect on March 14,
2001.
"Stated Maturity Date" means April 1, 2003; provided, however, that
if Supermajority Tranche A Lenders agree in writing prior to such date (and the
Termination Date shall not have already occurred) to extend the Stated Maturity
Date to October 1, 2003, then the Stated Maturity Date shall thereafter mean
October 1, 2003; provided further, however, that if Supermajority Tranche A
Lenders agree in writing prior to October 1, 2003 (and the Termination Date
shall not have already occurred) to extend the Stated Maturity Date to April 1,
2004, then the Stated Maturity Date shall thereafter mean April 1, 2004. Such
consent of Lenders to any such extension may be conditioned, as such Lenders
shall mutually agree and direct, on amendments, supplements and other
modifications of this Agreement and the Loan Documents, including (i) amendments
to the Advance Limits, the Monthly Budget, drawing conditions and covenants,
(ii) reductions in the amount of the Commitments, and (iii) requirements that,
unless Borrowers shall have previously submitted to Agents and Lenders a plan or
plans of reorganization with respect to all Borrowers approved in writing by
Requisite Lenders, Borrowers shall have begun, and/or agreed to and implemented
procedures satisfactory to Requisite Lenders to arrange for, a sale or other
disposition(s) of such assets, divisions or businesses (including all
businesses) of Borrowers and their respective Subsidiaries as such Requisite
Lenders shall designate.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, trust, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof.
"Subsidiary Guarantor" means any Subsidiary of any Borrower that
executes and delivers a counterpart of the Subsidiary Guaranty on the Closing
Date or from time to time thereafter pursuant to subsection 6.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by certain existing Subsidiaries of Borrowers on the Closing Date and
to be executed and delivered by certain additional Subsidiaries of Borrowers
from time to time thereafter in accordance with subsection 6.8, substantially in
the form of Exhibit VII annexed hereto, as such Subsidiary Guaranty may
hereafter be amended, restated, supplemented or otherwise modified from time to
time.
"Supermajority Lenders" means Lenders having or holding more than
66-2/3% of the aggregate Loan Exposure of all Lenders.
"Supermajority Tranche A Lenders" means Lenders having or holding
more than 66-2/3% of the aggregate Tranche A Loan Exposure of all Lenders.
"Supplemental Collateral Agent" has the meaning assigned to that term
in subsection 9.1B.
"Synthetic Lease Obligation" means the monetary obligation of a
Person 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 on 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).
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender, there
shall be excluded franchise taxes and all taxes that are imposed on the overall
income or profits of such Lender by the United States or by any other Government
Authority under the laws of which Lender is organized or has its principal
office or maintains its applicable lending office.
"Termination Date" means the earliest of (i) the Stated Maturity Date
(as it may be extended from time to time in accordance with the definition of
such term), (ii) the effective date of a confirmed a plan of reorganization in
the Chapter 11 Cases, (iii) the date of distributions to any class of creditors,
equity holders or other claimants under any plan of reorganization in the
Chapter 11 Cases, (iv) the date of termination in whole of the Commitments
pursuant to Section 8, (v) the date that is fifteen (15) days after the Petition
Date, if neither the Interim Borrowing Order nor the Final Borrowing Order has
been entered by the Bankruptcy Court by such date, (vi) the date that is
forty-five (45) days after the Petition Date if the Final Borrowing Order has
not been entered by the Bankruptcy Court by such date, (vii) the date of any
sale, transfer or other disposition of all or substantially all of the assets or
Capital Stock of Borrowers, (viii) the date of termination of exclusivity under
any of the Chapter 11 Cases without the prior written approval of Requisite
Lenders, and (ix) the date of filing of a plan of reorganization for any
Borrower without the written approval of Requisite Lenders.
"Thai Asset Sale" means the sale or other disposition by Company and
its Subsidiaries of all or substantially all of their respective equity
interests in (i) Operational Energy Group Limited, a company incorporated under
the laws of Thailand that is in the business of operating and maintaining
electric power and thermal energy production facilities, (ii) Rojana Power Co.
Ltd., a company incorporated under the laws of Thailand that owns a natural gas
fueled cogeneration power plant in Ayudthaya, Thailand, and (iii) Sahacogen
(Chonburi) Co., Ltd., a company incorporated under the laws of Thailand that
owns a natural gas fueled cogeneration power plant in Sriracha, Thailand.
"13-Week Cash Forecast" means, initially, the consolidated cash flow
projections delivered by Borrowers to Administrative Agent pursuant to
subsection 4.1F for the 13-week period commencing with the week during which the
Petition Date occurs, setting forth on a line-item basis weekly anticipated cash
receipts and disbursements; provided that, upon approval by Agents of any
monthly cash flow projections delivered pursuant to subsection 6.1(xix)(a), the
13-Week Cash Forecast, for purposes of the 13-week period commencing with the
first week of the immediately following month, shall mean the weekly cash flow
projections for such 13-week period delivered pursuant to subsection
6.1(xix)(b).
"Total Utilization of Tranche A Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Tranche A Loans plus (ii) the Tranche A Letter of Credit Usage.
"Total Utilization of Tranche B Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Tranche B Loans plus (ii) the Tranche B Letter of Credit Usage.
"Tranche A Aggregate Amounts Due" has the meaning assigned to that
term in subsection 10.5A.
"Tranche A Commitment" means the commitment of a Lender to make
Tranche A Loans to Borrowers pursuant to subsections 2.1A(i) and 3.3B, and
"Tranche A Commitments" means such commitments of all Lenders in the aggregate.
"Tranche A Commitment Fee Percentage" means, on any date of
determination, a per annum rate equal to (i) 1.00% on any date on which the
Total Utilization of Tranche A Commitments equals 1/3 or less of the Tranche A
Commitments, (ii) 0.75% on any date on which the Total Utilization of Tranche A
Commitments is greater than 1/3 of the Tranche A Commitments but less than 2/3
of the Tranche A Commitments, and (iii) 0.50% on any date on which the Total
Utilization of Tranche A Commitments equals 2/3 or more of the Tranche A
Commitments.
"Tranche A Lender" means any Lender having or holding Tranche A Loan
Exposure.
"Tranche A Letter of Credit" or "Tranche A Letters of Credit" means
letters of credit issued or to be issued by Issuing Lenders for the account of
any Borrower pursuant to subsection 3.1A(i).
"Tranche A Letter of Credit Sublimit" means $14,200,000 or such
greater amount as may be approved in writing by Agents and Requisite Class
Lenders of the Class of Tranche A Lenders (which approval shall be at the sole
discretion of such Agents and Lenders and shall be evidenced by an amendment to
this Agreement in form reasonably satisfactory to Agents and such Lenders) from
time to time after the Closing Date upon a request from Borrowers to increase
such amount; provided, however, that no such increase shall cause the Tranche A
Letter of Credit Sublimit to exceed the total amount of the Tranche A
Commitments minus the sum of (i) the outstanding amount of Tranche A Loans
(excluding Tranche A Loss Sharing Loans and Tranche A Loans made pursuant to
subsection 3.3B) and (ii) the Tranche A Loss Sharing Sublimit then in effect.
"Tranche A Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Tranche A Letters of
Credit then outstanding plus (ii) the aggregate amount of all drawings under
Tranche A Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed out of the proceeds of Tranche A Loans pursuant to subsection 3.3B or
otherwise reimbursed by Borrowers.
"Tranche A Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the termination of the Tranche A Commitments,
that Lender's Tranche A Commitment, and (ii) after the termination of the
Tranche A Commitments, the sum of (a) the aggregate outstanding principal amount
of the Tranche A Loans of that Lender plus (b) in the event that Lender is an
Issuing Lender of Tranche A Letters of Credit, the aggregate Tranche A Letter of
Credit Usage in respect of all Tranche A Letters of Credit issued by that Lender
(in each case net of any participations purchased by other Lenders in such
Tranche A Letters of Credit or in any unreimbursed drawings thereunder) plus (c)
the aggregate amount of all participations purchased by that Lender in any other
outstanding Tranche A Letters of Credit or any unreimbursed drawings under any
such other Tranche A Letters of Credit.
"Tranche A Loans" means the loans made (or deemed made) by Tranche A
Lenders to Borrowers pursuant to subsections 2.1A(i), 2.1B and 3.3B.
"Tranche A Loss Sharing Loans" has the meaning assigned to that term
in subsection 2.5A.
"Tranche A Loss Sharing Sublimit" means $41,000,000, as such amount
may be reduced from time to time pursuant to subsection 2.4A(iii)(i).
"Tranche A Notes" means any promissory notes of Borrowers issued
pursuant to subsection 2.1F to evidence the Tranche A Loans of any Lenders,
substantially in the form of Exhibit IV-A annexed hereto, as they may be
amended, restated, supplemented or otherwise modified from time to time.
"Tranche A Obligations" means all Obligations other than the Tranche
B Obligations.
"Tranche B Aggregate Amounts Due" has the meaning assigned to that
term in subsection 10.5B.
"Tranche B Commitment" means the commitment of a Lender to make
Tranche B Loans to Borrowers pursuant to subsections 2.1A(ii) and 3.3B, and
"Tranche B Commitments" means such commitments of all Lenders in the aggregate.
"Tranche B Lender" means any Lender having or holding Tranche B Loan
Exposure.
"Tranche B Letter of Credit" or "Tranche B Letters of Credit" means
letters of credit issued (or deemed issued) by Issuing Lenders pursuant to
subsection 3.1A(ii).
"Tranche B Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Tranche B Letters of
Credit then outstanding plus (ii) the aggregate amount of all drawings under
Tranche B Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed out of the proceeds of Tranche B Loans pursuant to subsection 3.3B or
otherwise reimbursed by Borrowers.
"Tranche B Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the termination of the Tranche B Commitments,
that Lender's Tranche B Commitment, and (ii) after the termination of the
Tranche B Commitments, the sum of (a) the aggregate outstanding principal amount
of the Tranche B Loans of that Lender plus (b) in the event that Lender is an
Issuing Lender of Tranche B Letters of Credit, the aggregate Tranche B Letter of
Credit Usage in respect of all Tranche B Letters of Credit issued by that Lender
(in each case net of any participations purchased by other Lenders in such
Tranche B Letters of Credit or in any unreimbursed drawings thereunder) plus (c)
the aggregate amount of all participations purchased by that Lender in any other
outstanding Tranche B Letters of Credit or any unreimbursed drawings under any
such other Tranche B Letters of Credit.
"Tranche B Loans" means the loans made (or deemed made) by Tranche B
Lenders to Borrowers pursuant to subsections 2.1A(ii) and 3.3B.
"Tranche B Notes" means any promissory notes of Borrowers issued
pursuant to subsection 2.1F to evidence the Tranche B Loans of any Lenders,
substantially in the form of Exhibit IV-B annexed hereto, as they may be
amended, restated, supplemented or otherwise modified from time to time.
"Tranche B Obligations" means any and all Obligations to the extent
arising under or with respect to the Tranche B Loans, the Tranche B Commitments
or the Tranche B Letters of Credit, including principal and interest on any
Tranche B Loans, the fees and other amounts accruing or otherwise owed with
respect to the Tranche B Loan Exposure, and any unreimbursed drawings (and
interest accrued thereon) under Tranche B Letters of Credit.
"TSCA" means the Toxic Substances Control Act of 1976, as amended (15
X.X.X.xx. 2601 et seq.), or any successor statute, and all implementing
regulations promulgated thereunder.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (iii) and
(iv) of subsection 6.1 shall be prepared in accordance with GAAP as in effect at
the time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(vi)). Except as otherwise permitted by
this Agreement, calculations in connection with the definitions, covenants and
other provisions of this Agreement shall utilize GAAP as in effect on the date
of determination, applied in a manner consistent with that used in preparing the
financial statements referred to in subsection 5.3. 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 Company, Administrative Agent or Requisite
Lenders shall so request, Administrative Agent, Lenders and Company 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 Requisite Lenders), provided that, until so amended, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and Company shall provide to Administrative Agent and Lenders
reconciliation statements provided for in subsection 6.1(vi).
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Optional Notes.
A. Commitments. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrowers herein set
forth, each Lender hereby severally agrees, subject to the limitations set forth
below with respect to the maximum amount of Loans permitted to be outstanding
from time to time, to make the Loans described in subsections 2.1A(i) and
2.1A(ii).
(i) Tranche A Loans. Each Lender severally agrees to lend to
Borrowers, on a joint and several basis, from time to time during the
period from the Closing Date to but excluding the Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche A Commitments to be used for the purposes identified in
subsection 2.5A. The original amount of each Lender's Tranche A Commitment
is set forth opposite its name on Schedule 2.1 annexed hereto and the
aggregate original amount of the Tranche A Commitments is $115,000,000;
provided, however, that in the event the Thai Asset Sale shall have been
consummated on or prior to the Closing Date, the aggregate original amount
of the Tranche A Commitments shall be reduced on the Closing Date to
$95,000,000 (and the original Tranche A Commitments of Lenders shall be
ratably reduced to reflect such reduction in the aggregate original amount
of the Tranche A Commitments) without any reduction to the Tranche A Loss
Sharing Sublimit or the Tranche A Letter of Credit Sublimit then in effect;
and provided further, that the Tranche A Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche A Commitments
pursuant to subsection 10.1B and shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsection 2.4. Each
Lender's Tranche A Commitment shall expire on the Termination Date and all
Tranche A Loans and all other amounts owed hereunder with respect to the
Tranche A Loans and the Tranche A Commitments shall be paid in full no
later than that date. Amounts borrowed under this subsection 2.1A(i) (other
than Tranche A Loss Sharing Loans) may be repaid and reborrowed up to but
excluding the Termination Date; amounts borrowed as Tranche A Loss Sharing
Loans and subsequently repaid may not be reborrowed. Anything contained in
this Agreement to the contrary notwithstanding, (i) in no event shall the
Total Utilization of Tranche A Commitments at any time exceed the Tranche A
Commitments, (ii) in no event shall the principal amount of Tranche A Loans
outstanding at any time (other than Tranche A Loss Sharing Loans and
Tranche A Loans made to reimburse a drawing under a Tranche A Letter of
Credit under subsection 3.3) exceed the least of (x) the amount permitted
to be outstanding hereunder pursuant to the Interim Borrowing Order or the
Final Borrowing Order, as applicable, (y) the Advance Limit then in effect,
and (z) the Tranche A Commitments then in effect minus the Tranche A Letter
of Credit Sublimit then in effect minus the Tranche A Loss Sharing
Sublimit, and (iii) in no event shall the principal amount of Tranche A
Loss Sharing Loans outstanding at any time exceed the Tranche A Loss
Sharing Sublimit or, when added to the principal amount of all other
outstanding Tranche A Loans (other than Tranche A Loans made to reimburse a
drawing under a Tranche A Letter of Credit), the amount permitted to be
outstanding pursuant to the Interim Borrowing Order or Final Borrowing
Order, as applicable.
(ii) Tranche B Loans. Each Lender severally agrees to lend to
Borrowers, on a joint and several basis, from time to time during the
period from the date of entry of the Interim Borrowing Order to but
excluding the Termination Date an aggregate amount not exceeding its Pro
Rata Share of the aggregate amount of the Tranche B Commitments as Tranche
B Loans, solely pursuant to subsection 3.3B, it being understood that the
entry of the Interim Borrowing Order in accordance with the terms of this
Agreement is a condition precedent to each Lender's Tranche B Commitment,
and all Tranche B Commitments shall immediately terminate should the
Interim Borrowing Order not be so entered. The original amount of each
Lender's Tranche B Commitment is set forth opposite its name on Schedule
2.1 annexed hereto and the aggregate original amount of the Tranche B
Commitments is $367,853,962.03; provided that the Tranche B Commitments of
Lenders shall be adjusted to give effect to any assignments of the Tranche
B Commitments pursuant to subsection 10.1B, and shall be reduced from time
to time by the amount of any reductions thereto made pursuant to subsection
2.4A or 6.12, and shall be reduced on the date of entry of the Interim
Borrowing Order and on the date of entry of the Final Borrowing Order to an
amount (on each date) equal to the maximum amount which is on such date, or
at any time thereafter may become, available to be drawn under the Existing
L/Cs (and any reduction of the Tranche B Commitments on the date of entry
of the Interim Borrowing Order or the Final Borrowing Order shall be
applied to each Lender's Tranche B Commitment ratably). Each Lender's
Tranche B Commitment shall expire on the Termination Date and all Tranche B
Loans and all other amounts owed hereunder with respect to the Tranche B
Loans and the Tranche B Commitments shall be paid in full no later than
that date. Amounts borrowed under this subsection 2.1A(ii) and subsequently
repaid may not be reborrowed. Anything contained in this Agreement to the
contrary notwithstanding, in no event shall the Total Utilization of
Tranche B Commitments at any time exceed the Tranche B Commitments then in
effect.
B. Tranche A Loss Sharing Loans. In the event that the Group of
Pooled Facility Lenders (as defined in the Prepetition Credit Agreement) is
required to make loss sharing payments pursuant to Section 5.3 of the
Intercreditor Agreement, such Group shall notify Borrowers and Administrative
Agent of the amount of such loss sharing payments required pursuant to Section
5.3 of the Intercreditor Agreement, and such notice shall be deemed to be a
timely Notice of Borrowing to Administrative Agent requesting Tranche A Lenders
to make Tranche A Loss Sharing Loans to Borrowers that are Base Rate Loans on
the Business Day following the date on which such notice is received by
Administrative Agent (which date shall constitute the Funding Date for such
Tranche A Loss Sharing Loans), in an amount in Dollars equal to the amount
specified in such notice. Borrowers hereby irrevocably authorize the giving of
any such notice and the making of any such Tranche A Loss Sharing Loans.
Administrative Agent shall make the proceeds of such Tranche A Loss Sharing
Loans available on the applicable Funding Date by causing an amount of same day
funds in Dollars equal to the proceeds of all such Tranche A Loss Sharing Loans
received by Administrative Agent from Lenders to be applied to the purposes set
forth in subsection 2.5A(iii). Anything contained herein to the contrary
notwithstanding, each Tranche A Lender's obligation to fund any Tranche A Loss
Sharing Loans pursuant to this subsection 2.1B (so long as the necessary Tranche
A Commitment of such Lender has not terminated and the Final Borrowing Order
shall be entered and in full force and effect and to the extent the principal
amount of Tranche A Loss Sharing Loans giving effect to the proposed borrowing
of Tranche A Loss Sharing Loans would not exceed the Tranche A Loss Sharing
Sublimit), shall be absolute and unconditional and shall not be affected by any
circumstance, including (1) any set-off, counterclaim, recoupment, defense or
other right which such Tranche A Lender may have against any member of such
Group, Company or any other Person for any reason whatsoever; (2) the occurrence
or continuation of an Event of Default or a Potential Event of Default; (3) any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its Subsidiaries; (4)
any breach of this Agreement or any other Loan Document by any party thereto;
(5) the failure to satisfy any condition precedent set forth in subsection 4.2
other than the conditions set forth in subsection 4.2B(iv), (v) and (vi); or (6)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
C. Borrowing Mechanics. Loans made on any Funding Date (other than
Loans made pursuant to subsections 2.1B and 3.3B) shall be in an aggregate
minimum amount of $200,000 and integral multiples of $100,000 in excess of that
amount (or, if the amount of the Commitments unfunded and available for
borrowing is less than such aggregate minimum amount, an amount equal to the
amount of the Commitments unfunded and available for borrowing); provided that
Loans made on any Funding Date as Eurodollar Rate Loans with a particular
Interest Period shall be in an aggregate minimum amount of $500,000 and integral
multiples of $200,000 in excess of that amount. Whenever Borrowers desire that
Lenders make Loans (other than pursuant to subsections 2.1B and 3.3B) they shall
deliver to Administrative Agent a Notice of Borrowing no later than 10:00 A.M.
(New York City time) at least three Business Days in advance of the proposed
Funding Date (in the case of a Eurodollar Rate Loan) or at least one Business
Day in advance of the proposed Funding Date (in the case of a Base Rate Loan).
Loans may be continued as or converted into Base Rate Loans and Eurodollar Rate
Loans in the manner provided in subsection 2.2D. In lieu of delivering a Notice
of Borrowing, Borrowers may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1C; provided
that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Borrowing to Administrative Agent on or before the applicable
Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability
to any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Officer of
a Borrower or for otherwise acting in good faith under this subsection 2.1C or
under subsection 2.2D, and upon funding of Loans by Lenders, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans pursuant to subsection 2.2D, in each case in accordance
with this Agreement, pursuant to any such telephonic notice Borrowers shall have
effected Loans or a conversion or continuation, as the case may be, of Loans
hereunder.
Borrowers shall notify Administrative Agent prior to the funding of
any Loans in the event that any of the matters to which Borrowers are required
to certify in the applicable Notice of Borrowing is no longer true and correct
as of the applicable Funding Date, and the acceptance by Borrowers of the
proceeds of any Loans shall constitute a re-certification by Borrowers, as of
the applicable Funding Date, as to the matters to which Borrowers are required
to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for, or a Notice of Conversion/Continuation for conversion
to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrowers shall be bound to make a borrowing or to
effect a conversion or continuation in accordance therewith.
Notwithstanding the foregoing provisions of this subsection 2.1C, no
Eurodollar Rate Loans may be made and no Base Rate Loan may be converted into a
Eurodollar Rate Loan until the third Business Day after the Closing Date.
D. Disbursement of Funds. All Tranche A Loans and Tranche B
Loans under this Agreement shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
neither Administrative Agent nor any Lender shall be responsible for any default
by any other Lender in that other Lender's obligation to make the particular
type of Loan requested hereunder nor shall the Commitment of any Lender to make
the particular type of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by Administrative Agent of a Notice
of Borrowing pursuant to subsection 2.1C (or telephonic notice in lieu thereof)
or a notice deemed to be a Notice of Borrowing pursuant to subsection 2.1B,
Administrative Agent shall notify each Lender of the proposed borrowing. Each
such Lender shall make the amount of its Tranche A Loan available to
Administrative Agent not later than 12:00 Noon (New York City time) on the
applicable Funding Date, in same day funds in Dollars, at the Funding and
Payment Office. Except as provided in subsection 2.1B with respect to Tranche A
Loss Sharing Loans and subsection 3.3B with respect to Tranche A Loans used to
reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Tranche A Loans made on the Closing
Date) and 4.2 (in the case of all Tranche A Loans), Administrative Agent shall
make the proceeds of such Tranche A Loans available to Borrowers on the
applicable Funding Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Tranche A Loans received by Administrative Agent
from Lenders to be credited to the account of Borrowers at the Funding and
Payment Office.
Except with respect to Tranche A Loss Sharing Loans, unless
Administrative Agent shall have been notified by any Lender prior to a Funding
Date for any Loans that such Lender does not intend to make available to
Administrative Agent the amount of such Lender's Loan requested on such Funding
Date, Administrative Agent may assume that such Lender has made such amount
available to Administrative Agent on such Funding Date and Administrative Agent
may, in its sole discretion, but shall not be obligated to, make available to
Borrowers a corresponding amount on such Funding Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon Administrative Agent's
demand therefor, Administrative Agent shall promptly notify Borrowers and
Borrowers shall immediately pay such corresponding amount to Administrative
Agent together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent, at the rate payable under
this Agreement for Base Rate Loans. Nothing in this subsection 2.1D shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Borrowers may have against any Lender
as a result of any default by such Lender hereunder.
E. The Register. Administrative Agent, acting for these purposes
solely as an agent of Borrowers (it being acknowledged that Administrative
Agent, in such capacity, and its officers, directors, employees, agent and
affiliates shall constitute Indemnitees under subsection 10.3), shall maintain
(and make available for inspection by Borrowers and Lenders upon reasonable
prior notice at reasonable times) at its address referred to in subsection 10.8
a register for the recordation of, and shall record, the names and addresses of
Lenders and the Tranche A Commitment, Tranche B Commitment, Tranche A Loans,
Tranche A Loss Sharing Loans and Tranche B Loans of each Lender from time to
time (the "Register"). Borrowers, Administrative Agent and Lenders shall deem
and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof; all amounts owed with respect to any Commitment or Loan shall
be owed to the Lender listed in the Register as the owner thereof; and any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans. Each Lender shall record
on its internal records the amount of its Loans and Commitments and each payment
in respect hereof, and any such recordation shall be conclusive and binding on
Borrowers, absent manifest error, subject to the entries in the Register, which
shall, absent manifest error, govern in the event of any inconsistency with any
Lender's records. Failure to make any recordation in the Register or in any
Lender's records, or any error in such recordation, shall not affect any Loans
or Commitments or any Obligations in respect of any Loans.
F. Optional Notes. If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Closing Date or at any time thereafter, Borrowers shall execute and
deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to subsection
10.1) on the Closing Date (or, if such notice is delivered after the date which
is two Business Days prior to the Closing Date, promptly after Company's receipt
of such notice) (i) a promissory note or promissory notes to evidence such
Lender's Tranche A Loans, substantially in the form of Exhibit IV-A annexed
hereto, with appropriate insertions including the principal amount of that
Lender's Tranche A Commitment, and (ii) a promissory note or promissory notes to
evidence such Lender's Tranche B Loans, substantially in the form of Exhibit
IV-B annexed hereto, with appropriate insertions including the principal amount
of that Lender's Tranche B Commitment.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and
2.7, each Loan shall bear interest on the unpaid principal amount thereof from
the date made until repayment in full at a rate determined by reference to the
Base Rate or the Eurodollar Rate. The applicable basis for determining the rate
of interest with respect to any Loan (subject to subsections 2.1B and 3.3B)
shall be selected by Borrowers initially at the time a Notice of Borrowing is
given with respect to such Loan pursuant to subsection 2.2B (subject to the last
sentence of subsection 2.1C), and the basis for determining the interest rate
with respect to any Loan may be changed from time to time pursuant to subsection
2.2B (subject to the last sentence of subsection 2.1C). If on any day a Loan is
outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate. Subject
to the provisions of subsections 2.2E, 2.2G and 2.7, the Loans shall bear
interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Base Rate Margin; or
(b) if a Eurodollar Rate Loan, then at the sum of the Eurodollar
Rate plus the Eurodollar Rate Margin.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
Borrowers may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall be
a one-month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Loans shall
extend beyond the Stated Maturity Date in effect at the commencement of
such Interest Period; and
(vi) there shall be no more than four Interest Periods outstanding at
any time.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity).
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, Borrowers shall have the option (i) to convert at any time all
or any part of their outstanding Tranche A Loans or Tranche B Loans equal to
$200,000 and integral multiples of $100,000 in excess of that amount from Loans
bearing interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii) upon
the expiration of any Interest Period applicable to a Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $500,000 and integral
multiples of $200,000 in excess of that amount as a Eurodollar Rate Loan;
provided, however, that a Eurodollar Rate Loan may only be converted into a Base
Rate Loan on the expiration date of an Interest Period applicable thereto.
Borrowers shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 10:00 A.M. (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). In lieu of delivering a Notice of
Conversion/Continuation Borrowers may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender of the Loan subject to the Notice of
Conversion/Continuation.
E. Default Rate. Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder (including
unreimbursed amounts drawn under any Letter of Credit), shall thereafter bear
interest payable upon demand at a rate that is 2% per annum in excess of the
interest rate otherwise payable under this Agreement with respect to the
applicable Loans or in the case of fees and other amounts, at a rate which is 2%
per annum in excess of the interest rate otherwise payable under this Agreement
for Base Rate Loans; provided that, in the case of Loans that are Eurodollar
Rate Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans and other amounts
bearing interest with reference to the Base Rate shall be computed (i) in the
case of Base Rate Loans, on the basis of a 365-day or 366-day year, as the case
may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan or amount funded in a
drawing under a Letter of Credit, the date of the making of such Loan or the
date of funding of such drawing or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included; and the date of
payment of such Loan or funded drawing or the expiration date of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate
Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided that if a Loan or funded drawing is repaid on the same day on which it
is made, one day's interest shall be paid on that Loan or funded drawing.
G. Maximum Rate. Notwithstanding the foregoing provisions of this
subsection 2.2, in no event shall the rate of interest payable by Borrowers with
respect to any Loan or funded drawing under any Letter of Credit exceed the
maximum rate of interest permitted to be charged under applicable law.
2.3 Fees.
A. Tranche A Facility Fees. Borrowers, jointly and severally, agree
to pay to Administrative Agent on the Closing Date, for distribution to each
Tranche A Lender in proportion to that Lender's Pro Rata Share of the Tranche A
Commitments, facility fees in an aggregate amount equal to 2.0% of the entire
amount of the Tranche A Commitments as of the Closing Date.
B. Tranche A Commitment Fees. Borrowers, jointly and severally, agree
to pay to Administrative Agent, for distribution to each Tranche A Lender in
proportion to that Lender's Pro Rata Share of the Tranche A Commitments,
commitment fees for the period from and including the Closing Date to and
excluding the Termination Date equal to (i) the average of the daily excess of
the Tranche A Commitments over the sum of (x) the aggregate principal amount of
outstanding Tranche A Loans plus (y) the Tranche A Letter of Credit Usage,
multiplied by (ii) the Tranche A Commitment Fee Percentage then in effect. Such
commitment fees shall be payable in arrears on and to (but excluding) the last
day of each month and on the Termination Date and computed on the basis of a
360-day year, for the actual number of days elapsed.
C. Other Fees. Borrowers, jointly and severally, agree to pay to
Agents such fees in the amounts and at the times separately agreed upon between
Company and Agents. All fees referenced in this subsection 2.3 shall be earned
when payable and shall be non-refundable.
2.4 Repayments, Prepayments and Reductions in Commitments; General
Provisions Regarding Payments; Application of Proceeds of Collateral
and Payments Under Subsidiary Guaranty.
A. Prepayments and Reductions in Commitments.
(i) Voluntary Prepayments. Borrowers may, upon not less than one
Business Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three Business Days' prior written or telephonic notice, in the
case of Eurodollar Rate Loans, in each case given to Administrative Agent
by 12:00 Noon (New York City time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent will promptly
transmit by telefacsimile or telephone to each Lender for the Loans to be
prepaid), at any time and from time to time prepay any Loans on any
Business Day in whole or in part in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount
(or, if the amount of the Loans is less than such aggregate minimum amount,
an amount equal to the amount of the Loans); provided that voluntary
prepayments of Eurodollar Rate Loans made on a date other than an Interest
Payment Date applicable to such Loan shall be subject to breakage fees,
costs and expenses, if any, in accordance with subsection 2.6D. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4A(iv).
(ii) Voluntary Reductions of Commitments. Borrowers may, upon not less
than one Business Day's prior written or telephonic notice confirmed in
writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, (a) the
Tranche A Commitments in an amount up to the amount by which the Tranche A
Commitments exceed the Total Utilization of Tranche A Commitments at the
time of such proposed termination or reduction or (b) the Tranche B
Commitments in an amount up to the amount by which the Tranche B
Commitments exceed the Total Utilization of Tranche B Commitments at the
time of such proposed termination or reduction; provided that any such
partial reduction of either the Tranche A Commitments or the Tranche B
Commitments shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount; and provided
further, however, that no such partial reduction of the Tranche B
Commitments shall be permitted prior to entry of the Final Borrowing Order
and the deemed issuance of the Tranche B Letters of Credit. Borrowers'
notice to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of any of the
Commitments shall be effective on the date specified in Company's notice
and shall reduce the particular type of Commitment of each Lender
proportionately to its Pro Rata Share. No such voluntary reduction of the
Commitments shall be permitted if such reduction would result in (1) the
Tranche A Commitments being less than the sum of (x) the Tranche A Letter
of Credit Sublimit then in effect plus (y) the Tranche A Loss Sharing
Sublimit plus (z) the aggregate principal amount of all outstanding Tranche
A Loans (other than Tranche A Loss Sharing Loans and Tranche A Loans made
to reimburse a drawing under a Tranche A Letter of Credit under subsection
3.3), or (2) the Tranche B Commitments being less than the sum of (x) the
Tranche B Letter of Credit Usage then in effect plus (y) the aggregate
principal amount of all outstanding Tranche B Loans.
(iii) Mandatory Prepayments and Mandatory Reductions of Commitments.
Mandatory Payments shall be made in the amounts and under the circumstances
set forth below, all such Mandatory Payments to be applied as set forth
below or as more specifically provided in subsection 2.4A(iv):
(a) Prepayments and Reductions From Net Asset Sale Proceeds. No later
than two days after the date of receipt by Company or any of its
Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset Sale
(other than any Approved Asset Sale to the extent the Net Asset Sale
Proceeds from such Approved Asset Sale do not exceed $5,000,000), Company
shall make a Mandatory Payment in an aggregate amount equal to the amount
of such Net Asset Sale Proceeds.
(b) Prepayments and Reductions from Net Insurance/Condemnation
Proceeds. No later than the fifth Business Day following the date of
receipt by Administrative Agent or by Company or any of its Subsidiaries of
any Net Insurance/Condemnation Proceeds that are required to be used for a
Mandatory Payment pursuant to the provisions of subsection 6.4C, Company
shall make such Mandatory Payment in an aggregate amount equal to the
amount of such Net Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Issuance of Equity Securities.
On the date of receipt of the Net Securities Proceeds from the issuance of
any Capital Stock of Company or of any Subsidiary of Company or from any
capital contribution to Company or any Subsidiary by any holder of Capital
Stock thereof after the Closing Date, Company shall make a Mandatory
Payment in an aggregate amount equal to 100% of such Net Securities
Proceeds; provided, however, that such Net Securities Proceeds shall not
include (1) any equity proceeds or capital contributions to Subsidiaries of
Company which are not Borrowers pursuant to capital call requirements
(relating to existing Projects) under Contractual Obligations in effect on
the Closing Date and (2) equity proceeds or capital contributions to any
Subsidiaries which are applied by such Subsidiaries for the purpose of
making Investments permitted under subsection 7.3.
(d) Prepayments and Reductions Due to Issuance of Indebtedness. On the
date of receipt of the Net Securities Proceeds from the issuance of any
Indebtedness of Company or any of its Subsidiaries after the Closing Date,
other than Indebtedness permitted pursuant to subsection 7.1, Company shall
make a Mandatory Payment in an aggregate amount equal to such Net
Securities Proceeds.
(e) Prepayments and Reductions from Tax Refunds. If after the Closing
Date, Company or any of its Subsidiaries receives any single payment of a
Cash refund or rebate of any Tax in an aggregate amount in excess of
$1,000,000, the Borrowers shall no later than the Business Day following
the date of receipt of such refund or rebate make a Mandatory Payment in
the amount of such Tax refund or rebate.
(f) Repayments from Excess Cash. Any amounts on deposit in the Cash
Management System in excess of $10,000,000 (such amount, in any event, not
to include amounts, if any, required to be held in Deposit Accounts which
are collateral accounts or debt service reserve accounts described on
Schedule 2.4A(iii)(f) annexed hereto) at the end of each Business Day shall
be applied to make a Mandatory Payment on the next succeeding Business Day.
Upon the occurrence and continuation of an Event of Default all amounts in
the Cash Management System shall at Administrative Agent's or Requisite
Lenders' request be applied to make a Mandatory Payment.
(g) Prepayments Due to Reductions or Restrictions of Commitments;
Advance Limit Prepayments. Borrowers shall from time to time prepay the
Tranche A Loans and Tranche B Loans, as the case may be, to the extent
necessary to give effect to the limitations set forth in the last sentence
of each of subsections 2.1A(i) and (ii). Without limiting the preceding
sentence, if at any time and from time to time after the Closing Date (x)
the outstanding principal amount of Tranche A Loans (other than Tranche A
Loss Sharing Loans and Tranche A Loans made to reimburse a drawing under a
Tranche A Letter of Credit under subsection 3.3) shall exceed the least of
(1) the Advance Limit then in effect, (2) the Tranche A Commitments then in
effect minus the Tranche A Letter of Credit Sublimit then in effect minus
the Tranche A Loss Sharing Sublimit then in effect, and (3) the amount
permitted to be outstanding hereunder pursuant to the Interim Borrowing
Order or the Final Borrowing Order, as applicable, Borrowers shall promptly
prepay Tranche A Loans (other than Tranche A Loss Sharing Loans) in an
aggregate amount equal to the amount of any such excess; (y) the Total
Utilization of Tranche A Commitments shall exceed the Tranche A Commitments
then in effect, Borrowers shall promptly prepay the Tranche A Loans in an
aggregate amount equal to the amount of any such excess; or (z) the
principal amount of Tranche A Loss Sharing Loans outstanding shall exceed
the Tranche A Loss Sharing Sublimit, Borrowers shall promptly prepay such
Tranche A Loss Sharing Loans in an aggregate amount equal to the amount of
any such excess; and, if any such payment pursuant to preceding clause (x)
or (y) does not result in elimination of such excess, Borrowers shall
first, promptly repay any unreimbursed drawings under Tranche A Letters of
Credit and second, promptly cash collateralize the Tranche A Letters of
Credit in the amount of such remaining excess.
(h) Calculations of Net Proceeds Amounts; Additional Prepayments and
Reductions Based on Subsequent Calculations. Concurrently with the receipt
of any amount which would require a Mandatory Payment pursuant to
subsections 2.4A(iii)(a) - (f), Company shall deliver to Administrative
Agent an Officer's Certificate demonstrating the calculation of the amount
of the applicable Net Asset Sale Proceeds, Net Insurance/Condemnation
Proceeds, Net Securities Proceeds, excess cash in the Cash Management
System, or federal Tax refund or rebate, as the case may be, that gave rise
to such Mandatory Payment. In the event that Company shall subsequently
determine that the actual amount was greater than the amount set forth in
such Officer's Certificate, Company shall promptly make an additional
Mandatory Payment in an amount equal to the amount of such excess, and
Company shall concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the additional amount
resulting in such excess.
(i) Reductions from Reductions in Tranche A Loss Sharing Sublimit and
from Repayments of Tranche A Loss Sharing Loans. On the date of any
repayment of outstanding Tranche A Loss Sharing Loans, the Tranche A Loss
Sharing Sublimit shall be reduced in an amount equal to the principal
amount of Tranche A Loss Sharing Loans so repaid. On the date of any
reduction in the Tranche A Letter of Credit Sublimit or the Tranche A Loss
Sharing Sublimit, the Tranche A Commitments shall be reduced in the amount
of such reduction, and such reduction shall reduce the Tranche A Commitment
of each Tranche A Lender proportionately according to its Pro Rata Share.
(iv) Application of Prepayments.
(a) Application of Prepayments. Except as provided in subsection
2.4C, (1) any voluntary prepayments of the Loans made pursuant to
subsection 2.4A and any Mandatory Payments made pursuant to subsection
2.4A(iii)(f) shall be applied first, to prepay the Tranche A Loans to
the full extent thereof and second, to the extent of any remaining
portion of such amount, to prepay the Tranche B Loans and any other
unreimbursed drawings under the Tranche B Letters of Credit to the
full extent thereof and to permanently reduce the Tranche B
Commitments in the amount of such prepayment; (2) subject to
subsection 2.4A(iv)(c), any Mandatory Payments made pursuant to
subsections 2.4A(iii)(a) - (e) shall be applied first, to prepay the
Tranche A Loans to the full extent thereof and to permanently reduce
the Tranche A Commitments to the extent of 100% of the amount of such
prepayment (to the extent such prepayment is applied to Tranche A
Loans other than Tranche A Loss Sharing Loans), second, to the extent
of any remaining portion of such amount, to prepay the Tranche B Loans
and any other unreimbursed drawings under the Tranche B Letters of
Credit to the full extent thereof and to permanently reduce the
Tranche B Commitments in the amount of such prepayment, and third, to
the extent of any remaining portion of such amount, to permanently
reduce the Tranche A Commitments to the extent of 100% of such
remaining amount (provided that no such reduction of the Tranche A
Commitments shall reduce the Tranche A Commitments to an amount less
than the sum of (x) the Tranche A Loss Sharing Sublimit (after giving
effect to any reduction thereto arising from the repayment of
outstanding Tranche A Loss Sharing Loans pursuant to clause "first"
above) and (y) the Tranche A Letter of Credit Usage); and (3) any
voluntary or mandatory prepayments required to be applied to repay
Tranche A Loans pursuant to clause (1) or (2) of this sentence shall
be applied first, to Tranche A Loans other than Tranche A Loss Sharing
Loans, to the full extent thereof, and second, to Tranche A Loss
Sharing Loans. Any remaining portion of such Mandatory Payment amounts
after the foregoing application shall be held by Administrative Agent
first, on behalf of Lenders as substitute collateral to secure the
Obligations and second, to the extent of any remaining portion of such
amount, as additional adequate protection in respect of Prepetition
Obligations, under the terms of the Borrowing Orders and the First Day
Orders.
(b) Application of Prepayments to Base Rate Loans and Eurodollar
Rate Loans. Considering Tranche A Loans and Tranche B Loans being
prepaid separately, any prepayment thereof shall be applied first to
Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Borrowers pursuant to
subsection 2.6D.
(c) Application of Prepayments from the Thai Asset Sale.
Notwithstanding anything in this subsection 2.4A(iv) to the contrary,
in the event that the Thai Asset Sale is consummated after the Closing
Date, the Net Asset Sale Proceeds from the Thai Asset Sale shall be
applied in the following order of priority: first, to prepay the
Tranche A Loans to the full extent thereof and to permanently reduce
the Tranche A Commitments by $20,000,000, second, to the extent of any
remaining Net Asset Sale Proceeds, to prepay the Tranche B Loans and
any other unreimbursed drawings under the Tranche B Letters of Credit
to the full extent thereof and to permanently reduce the Tranche B
Commitments in the amount of such prepayment, and third, to the extent
of any excess Net Asset Sale Proceeds, to be held by Administrative
Agent first, on behalf of Lenders as substitute collateral to secure
the Obligations and second, to the extent of any remaining portion of
such amount, as additional adequate protection in respect of
Prepetition Obligations, under the terms of the Borrowing Orders and
the First Day Orders.
B. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Borrowers of
principal, interest, fees and other Obligations shall be made in Dollars in
same day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later
than 12:00 Noon (New York City time) on the date due at the Funding and
Payment Office for the account of Lenders; funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by
Borrowers on the next succeeding Business Day. Each Borrower hereby
authorizes Administrative Agent to charge its accounts with Administrative
Agent in order to cause timely payment to be made to Administrative Agent
of all principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose).
Anything contained herein to the contrary notwithstanding, Borrowers
jointly and severally promise to repay all Loans and honored drawings under
the Letters of Credit when due in accordance with the terms hereof and
agree that, to the extent any Letters of Credit have not been returned and
cancelled, on the Termination Date (a) the unpaid principal amount of, and
accrued interest on, any funded amounts under such Letters of Credit and on
any Loans, (b) an amount equal to the maximum available amount that may at
any time on or after such date be drawn under all such Letters of Credit
then outstanding (whether or not any beneficiary under any such Letter of
Credit shall have presented, or shall be entitled at such time to present,
the drafts or other documents or certificates required to draw under such
Letter of Credit), and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by
Borrowers, and any amounts so due and payable with respect to Letters of
Credit shall be cash collateralized.
(ii) Application of Payments to Principal and Interest. All payments
in respect of the principal amount of any Loan shall include payment of
accrued interest on the principal amount being repaid or prepaid, and all
such payments (and, in any event, any payments in respect of any Loan on a
date when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Loans shall be apportioned among all outstanding
Loans to which such payments relate, in each case proportionately to
Lenders' respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at its primary address set forth below its name
on the appropriate signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments received by
Administrative Agent and the commitment fees of such Lender, if any, when
received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4B(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
Obligations of Borrowers hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
C. Application of Proceeds of Collateral and Payments after Event of
Default. Upon the occurrence and during the continuation of an Event of Default,
either if requested by Requisite Lenders or upon termination of the Commitments
(a) all payments received on account of the Obligations, whether from any
Borrower, from any Subsidiary Guarantor or otherwise, shall be applied by
Administrative Agent against the Obligations and (b) all proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion of
Administrative Agent, be held by Administrative Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Administrative
Agent against, the applicable Secured Obligations (as defined in the Collateral
Documents), in each case in the following order of priority:
(i) to the payment of all costs and expenses of such sale, collection
or other realization, all other expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, and all amounts
for which Agents are entitled to compensation (including the fees described
in subsection 2.3), reimbursement and indemnification under any Loan
Document and all advances made by Administrative Agent thereunder for the
account of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection with the
Loan Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and
the other terms of this Agreement and the Loan Documents;
(ii) thereafter, to the extent of any excess such proceeds, to the
payment of all Tranche A Obligations, for the ratable benefit of the
holders thereof (subject to the provisions of subsection 2.4B(ii) hereof);
(iii) thereafter, to the extent of any excess such proceeds, to the
payment of all Tranche B Obligations, for the ratable benefit of the
holders thereof (subject to the provisions of subsection 2.4B(ii) hereof);
and
(iv) thereafter, to the extent of any excess such proceeds, to the
payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
2.5 Use of Proceeds.
A. Tranche A Loans. The proceeds of any Tranche A Loans shall be
applied (i) to reimburse the Issuing Lenders of Tranche A Letters of Credit
pursuant to subsection 3.3B, (ii) by Borrowers to fund working capital
requirements and general corporate purposes relating to Borrowers' post-petition
operations and other expenditures, in each case in accordance with, and limited
by, the Monthly Budget and subsection 7.6A, and (iii) to fund the obligations
described in subsection 2.1B arising from time to time under the loss sharing
arrangements set forth in Section 5.3 of the Intercreditor Agreement, including
obligations on account of withholding taxes imposed on such arrangements (any
such Tranche A Loans, solely to the extent proceeds thereof are applied to the
purpose described in this clause (iii), being "Tranche A Loss Sharing Loans");
provided that no portion of the Tranche A Loans shall be used, directly or
indirectly, to (a) finance or make any Restricted Payment or other payment or
prepayment prohibited under subsection 7.5, or (b) make any payment or
prepayment (including by way of an Investment) to any Person that is otherwise
prohibited under this Agreement, including any payment or prepayment in respect
of Prepetition Indebtedness to the extent prohibited hereunder; provided,
further, that no proceeds or any other portion of the Tranche A Loans shall be
used, directly or indirectly, to finance in any way any adversary action, suit,
arbitration, proceeding or other litigation of any type relating to or in
connection with the Prepetition Credit Agreement or any of the loan documents or
instruments entered into in connection therewith, including any challenges to
the Prepetition Obligations or the validity, perfection, priority or
enforceability of any of the Liens securing such claims or any payment made
thereunder; and provided, further, that during the period prior to the date that
is 90 days after the appointment of an official committee for the unsecured
creditors, proceeds of the Tranche A Loans not to exceed $75,000 may be used to
pay reasonable fees and expenses of an official committee of creditors, if any,
appointed in the Chapter 11 Cases to analyze the Prepetition Obligations and any
Liens securing such claims (subject to the requirements for Bankruptcy Court
approval of the payment of such fees and expenses under the Bankruptcy Code and
the rights of Lenders to object thereto). Borrowers shall use the entire amount
of the proceeds of each Tranche A Loan in accordance with this subsection 2.5A;
provided, however, that nothing herein shall in any way prejudice or prevent any
Agent or the Tranche A Lenders from objecting, for any reason, to any requests,
motions or applications made in the Bankruptcy Court, including any applications
for interim or final allowances of compensation for services rendered or
reimbursement of expenses incurred under Sections 105(a), 330 or 331 of the
Bankruptcy Code, by any party in interest; and provided, further, that Borrowers
shall not use the proceeds from any Tranche A Loans for any purpose that is
prohibited under the Bankruptcy Code.
B. Tranche B Loans. The proceeds of any Tranche B Loans shall be
applied solely to reimburse the Issuing Lenders of Tranche B Letters of Credit
pursuant to subsection 3.3B.
C. Margin Regulations. No portion of the proceeds of any borrowing
under this Agreement shall be used by any Borrower or any Subsidiary of any
Borrower in any manner that might cause the borrowing or the application of such
proceeds to violate Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable
after 10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be conclusive and binding upon all parties) the interest rate that shall
apply to the Eurodollar Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Borrowers and each
Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto) on any Interest Rate
Determination Date that by reason of circumstances affecting the interbank
Eurodollar market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Eurodollar Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Borrowers and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Borrowers and Lenders that the circumstances giving rise to such notice
no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Borrowers with respect to the Loans in respect
of which such determination was made shall be deemed to be for a Base Rate Loan.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the
event that on any date any Lender shall have determined (which determination
shall be conclusive and binding upon all parties hereto but shall be made only
after consultation with Borrowers and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the interbank Eurodollar market or the position
of such Lender in that market, then, and in any such event, such Lender shall be
an "Affected Lender" and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Borrowers and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Borrowers pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "Affected
Loans") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Borrowers pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, Borrowers shall have the
option, subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Borrowers shall, jointly and severally, compensate each Lender, upon written
request by that Lender pursuant to subsection 2.6, for all reasonable losses,
expenses and liabilities (including any interest paid by that Lender to lenders
of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss,
expense or liability sustained by that Lender in connection with the liquidation
or re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment
(including any prepayment or conversion occasioned by the circumstances
described in subsection 2.6C) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Borrowers, or (iv) as a consequence of any other default by
Borrowers in the repayment of Eurodollar Rate Loans when required by the terms
of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had funded each of its
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period, whether or not
its Eurodollar Rate Loans had been funded in such manner.
G. Eurodollar Rate Loans After Default. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Borrowers may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest Period
then in effect for that Loan and (ii) subject to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by
Borrowers with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be for a Base Rate Loan or, if the
conditions to making a Loan set forth in subsection 4.2 cannot then be
satisfied, to be rescinded by Borrowers.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender (including any Issuing Lender) shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or other Government Authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other Government Authority (whether or not having the force of
law):
(i) subjects such Lender to any additional Tax with respect to this
Agreement or any of its obligations hereunder (including with respect to
issuing or maintaining any Letters of Credit or purchasing or maintaining
any participations therein or maintaining any Commitment hereunder) or any
payments to such Lender of principal, interest, fees or any other amount
payable hereunder;
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to Taxes)
on or affecting such Lender or its obligations hereunder or the interbank
Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Borrowers shall promptly pay, on a joint and several basis, to such
Lender, upon receipt of the statement referred to in subsection 2.8A, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder.
B. Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers under
this Agreement and the other Loan Documents shall be paid free and clear
of, and without any deduction or withholding on account of, any Tax
imposed, levied, collected, withheld or assessed by or within the United
States of America or any political subdivision in or of the United States
of America or any other jurisdiction from or to which a payment is made by
or on behalf of Borrowers or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time
of payment.
(ii) Grossing-up of Payments. If any Borrower or any other Person is
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Borrowers to Administrative Agent or
any Lender under any of the Loan Documents:
(a) Borrowers shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrowers
become aware of it;
(b) Borrowers shall pay any such Tax when such Tax is due, such
payment to be made (if the liability to pay is imposed on any
Borrower) for their own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender;
(c) the sum payable by Borrowers in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or
payment been required or made; and
(d) within 30 days after paying any sum from which any or all of
them are required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which any or
all of them are required by clause (b) above to pay, Borrowers shall
deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent
and to Company, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof) or on or prior to the
date of the Assignment Agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other times as may be
necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), two original
copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor forms) properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder
to establish that such Lender is not subject to United States
withholding tax with respect to any payments to such Lender of
interest payable under any of the Loan Documents.
(b) Each Non-US Lender hereby agrees, from time to time after the
initial delivery by such Lender of such forms, whenever a lapse in
time or change in circumstances renders such forms, certificates or
other evidence so delivered obsolete or inaccurate in any material
respect, that such Lender shall promptly (1) deliver to Administrative
Agent and to Company two original copies of renewals, amendments or
additional or successor forms, properly completed and duly executed by
such Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such Lender
is not subject to United States withholding tax with respect to
payments to such Lender under the Loan Documents or (2) notify
Administrative Agent and Company of its inability to deliver any such
forms, certificates or other evidence.
(c) Borrowers shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a) or
(b)(1) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on
the date such Lender became a Lender, nothing in this subsection
2.7B(iii)(c) shall relieve Borrowers of their obligation to pay any
amounts pursuant to subsection 2.7B(ii)(c) in the event that, as a
result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at
a subsequent date establishing the fact that such Lender is not
subject to withholding as described in subsection 2.7B(iii)(a).
(iv) Indemnity for Withheld Amounts. Borrowers hereby agree to
indemnify Lenders and Agents for the full amount of any deduction or
withholding on account of any Taxes imposed, levied, collected, withheld or
assessed by or within the United States of America or any political
subdivision in or of the United States of America or any other jurisdiction
from or to which a payment is made by or on behalf of Borrowers or by any
federation or organization of which the United States of America or any
such jurisdiction is a member at the time of payment (including any such
Taxes imposed by any jurisdiction on amounts payable under this subsection
2.7B) paid by Agents or Lenders with respect to sums payable by Borrowers
under this Agreement and the other Loan Documents and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made promptly, and in any
event within 10 days after, the relevant Lender or Agent makes demand
therefor in writing.
C. Capital Adequacy Adjustment. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Government Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans, Commitments, Letters of Credit, participations therein or
other Obligations to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Borrowers
from such Lender of the statement referred to in subsection 2.8A, Borrowers
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax basis for such
reduction.
2.8 Statement of Lenders; Obligation of Lenders and Issuing Lenders to
Mitigate.
A. Statements. Each Lender claiming compensation or reimbursement
pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company (with a copy
to Administrative Agent) a written statement, setting forth in reasonable detail
the basis of the calculation of such compensation or reimbursement, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error; provided that a Lender claiming compensation or reimbursement
pursuant to subsection 2.7B(ii) due to circumstances in effect as of the Closing
Date shall not be required to deliver more than one such statement to Borrowers
or Administrative Agent, and such statement shall remain effective with respect
to this Agreement until all Obligations have been paid in full.
B. Mitigation. Each Lender (including any Issuing Lender) agrees
that, as promptly as practicable after the officer of such Lender or Issuing
Lender responsible for administering the Loans or Letters of Credit of such
Lender or Issuing Lender, as the case may be, becomes aware of the occurrence of
an event or the existence of a condition that would cause such Lender or Issuing
Lender to become an Affected Lender or that would entitle such Lender or Issuing
Lender to receive payments under subsection 2.7 (other than subsection
2.7B(ii)), it will use reasonable effort to make, issue, fund or maintain the
Commitments of such Lender or the Affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, if (i) as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.9 would be materially reduced
and (ii) as determined by such Lender or Issuing Lender in its sole discretion,
such action would not otherwise be disadvantageous to such Lender or Issuing
Lender; provided that such Lender or Issuing Lender will not be obligated to
utilize such other lending or letter of credit office pursuant to this
subsection 2.8B unless Borrowers agree to pay, on a joint and several basis, all
incremental expenses incurred by such Lender or Issuing Lender as a result of
utilizing such other lending or letter of credit office as described above.
2.9 Replacement of a Lender.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender (any such Lender being a "Defaulting Lender") defaults (a
"Funding Default") in its obligation to fund its participation in any Letter of
Credit (a "Defaulted Participation") or to fund any Loan (a "Defaulted Loan") in
accordance with the terms of this Agreement, then (i) during any Default Period
(as defined below) with respect to such Defaulting Lender, such Defaulting
Lender shall not be deemed a "Lender" for purposes of voting on any matters
(including the granting of any consents or waivers) with respect to any of the
Loan Documents (provided, however, that nothing in this clause (i) shall be
construed as permitting, without the consent of the relevant Defaulting Lender,
a reduction in the principal amount of such Defaulting Lender's funded Loans or
other outstanding funded Obligations, an increase in the amount of such Lender's
Tranche A Commitment or Tranche B Commitment or participation in any Letters of
Credit, a reduction or postponement of the due date of any amount funded by such
Defaulting Lender and payable in respect of any Letter of Credit, an extension
of the expiration date of any Letter of Credit beyond the Stated Maturity Date,
or an extension of the Termination Date), (ii) to the extent permitted by
applicable law, until such time as the Default Excess (as defined below) with
respect to such Defaulting Lender shall have been reduced to zero, any payment
of amounts with respect to the Loans and any payment or reimbursement of amounts
with respect to a drawing under a Letter of Credit shall be applied first, to
amounts funded by Agents, Issuing Lenders or other Lenders (together with unpaid
interest accrued thereon) in lieu of such amounts required to be funded by
Defaulting Lenders and second, to the Loans or Letter of Credit participations,
as the case may be, of other Lenders (other than any other Defaulting Lenders)
as if such Defaulting Lender (and any other Defaulting Lenders) had no Loans
outstanding and the Loan Exposure of such Defaulting Lender were zero, (iii)
such Defaulting Lender's Tranche A Commitment, Tranche A Loans and Pro Rata
Shares with respect thereto shall be excluded for purposes of calculating the
commitment fee in respect of any day during any Default Period with respect to
such Defaulting Lender, such Defaulting Lender's Commitments, Loans and Pro Rata
Shares with respect thereto shall be excluded for purposes of calculating the
letter of credit fees under subsection 3.2 in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any such commitment fee or letter of
credit fee with respect to such Defaulting Lender's Commitments in respect of
any Default Period with respect to such Defaulting Lender, and (iv) the Total
Utilization of Tranche A Commitments and the Total Utilization of Tranche B
Commitments as at any date of determination shall be calculated as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Commitments are cancelled or terminated and/or the
Obligations are declared or become immediately due and payable, (B) the date on
which (1) the Default Excess with respect to such Defaulting Lender shall have
been reduced to zero (whether by the funding by such Defaulting Lender of any
Defaulted Loans or Defaulted Participations, as the case may be, of such
Defaulting Lender or by the non-pro rata application of any payments of amounts
with respect to the Loans or any payments or reimbursements of amounts with
respect to drawings under Letters of Credit in accordance with the terms hereof
or any combination thereof), and (2) such Defaulting Lender shall have delivered
to Company and Agents a written reaffirmation of its intention to honor its
obligations under this Agreement with respect to its Commitments, and (C) the
date on which Company, Administrative Agent and all Issuing Lenders waive all
Funding Defaults of such Defaulting Lender in writing, and (II) "Default Excess"
means, with respect to any Defaulting Lender, the excess, if any, of (x) such
Defaulting Lender's applicable Pro Rata Shares of the aggregate outstanding
principal amount of Loans of all Lenders and all funded participations in
Letters of Credit of Lenders (calculated as if all Defaulting Lenders (other
than such Defaulting Lender) had funded all of their respective Defaulted Loans
and Defaulted Participations) over (y) the aggregate outstanding principal
amount of Loans of such Defaulting Lender and the aggregate funded amount of
such Defaulting Lender's participations in Letters of Credit.
No Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this subsection 2.9, performance
by any Borrower of its obligations under this Agreement and the other Loan
Documents shall not be excused or otherwise modified, as a result of any Funding
Default or the operation of this subsection 2.9. The rights and remedies against
a Defaulting Lender under this subsection 2.9 are in addition to other rights
and remedies that Borrowers may have against such Defaulting Lender with respect
to any Funding Default and that Agents, any Issuing Lender or any Lender may
have against such Defaulting Lender with respect to any Funding Default.
2.10 Superpriority Nature of Obligations.
All Obligations of Borrowers under the Loan Documents (including the
obligation to pay principal, interest, professional fees, costs, charges,
commissions and expenses) shall be paid as provided in the Loan Documents when
due, without defense, offset, reduction or counterclaim, and shall constitute
allowed claims to the full extent thereof against Borrowers arising under
Section 364(c)(1) of the Bankruptcy Code, with priority for such claims over any
and all administrative expenses (other than the Carve-Outs to the extent
provided herein) of the kind specified or ordered pursuant to any provision of
the Bankruptcy Code, including Sections 105, 326, 328, 330, 331, 503(b), 506(c),
507(a), 507(b) and 726, provided that the Liens and security interests securing
the Obligations shall exclude any proceeds from avoidance actions under Sections
544-550 of the Bankruptcy Code and shall be subject only to: (i) unpaid
professional fees and expenses incurred (x) prior to the date of the delivery of
a notice from Administrative Agent or Requisite Lenders to Borrowers of the
occurrence of an Event of Default and specifying that the limitation on
professional fees and expenses referred to in the following clause (ii) is in
effect (such notice being the "Carve-Out Notice") or (y) after the earlier of
(1) such time as no Event of Default shall be continuing and (2) such time as
such Carve-Out Notice shall be rescinded in writing by Administrative Agent at
the direction of Requisite Lenders in their sole discretion, and which are
allowed by the Bankruptcy Court in the Chapter 11 Cases (either on an interim or
final basis), (ii) from and after the date of the delivery of a Carve-Out
Notice, professional fees and expenses allowed by the Bankruptcy Court in the
Chapter 11 Cases in an aggregate amount (determined without regard to fees and
expenses incurred prior to the date of the delivery of such Carve-Out Notice and
which are at any time allowed by the Bankruptcy Court either on an interim or
final basis) not to exceed $2,000,000 (for any period commencing at the time a
Carve-Out Notice shall have been so delivered and ending at the earlier of (1)
such subsequent time as no Event of Default shall be continuing and (2) such
time as such Carve-Out Notice shall be rescinded in writing by Administrative
Agent at the direction of Requisite Lenders in their sole discretion), and (iii)
fees payable to the Clerk of the Bankruptcy Court and to the United States
Trustee pursuant to 28 U.S.C. ss.1930(a)(6) (collectively, the "Carve-Outs");
provided further, however, that in no event shall there be paid from proceeds of
the Loans any fees and expenses incurred in challenging the liens or claims of
the Prepetition Lenders, although, subject to the Carve-Outs, the professionals
for an official creditors' committee may be paid (to the extent allowed by the
Bankruptcy Court) fees and expenses incurred in analyzing such liens or claims
in an amount not to exceed $75,000. Subject to the Carve-Outs, the Obligations
shall at all times be senior to the rights of Borrowers, any trustee or examiner
and any unsecured claims of any creditor or other entity in this and any
subsequent case under the Bankruptcy Code. With the exception of the Carve-Outs,
no cost or expense of administration or any claims in this case, including those
resulting from or incurred after any conversion of this case pursuant to Section
1112 of the Bankruptcy Code shall rank prior to, or on parity with, the claims
of the Lenders arising under this Agreement.
2.11 Joint and Several Liability; Payment Indemnifications.
A. Joint and Several Obligations. All Obligations of Borrowers under
the Loan Documents shall be the joint and several Obligations of each Borrower.
B. No Impairment or Release. The Obligations of and the Liens granted
by any Borrower under the Loan Documents shall not be impaired or released by
any action or inaction on the part of Administrative Agent or any Lender with
respect to any other Loan Party, including any action or inaction which would
otherwise release a surety.
C. Contribution Rights. In order to provide for just and equitable
contribution among Borrowers if any payment is made by a Borrower (a "Funding
Borrower") in discharging any of the Obligations, that Funding Borrower shall be
entitled to a contribution from the other Borrowers for all payments, damages
and expenses incurred by that Funding Borrower in discharging the Obligations,
in the manner and to the extent required to allocate liabilities in an equitable
manner among Borrowers on the basis of the relative benefits received by
Borrowers. If and to the extent that a Funding Borrower makes any payment to any
Lender or any other Person in respect of the Obligations, any claim which said
Funding Borrower may have against the other Borrowers by reason thereof shall be
subject and subordinate to the prior cash payment in full of the Obligations.
The parties hereto acknowledge that the right to contribution hereunder shall
constitute an asset of the party to which such contribution is owing and shall
be subject to the Liens and security interests of the Administrative Agent.
Notwithstanding any of the foregoing to the contrary, such contribution
arrangements shall not limit in any manner the joint and several nature of the
Obligations, limit, release or otherwise impair any rights of Administrative
Agent or any Lender under the Loan Documents, or alter, limit or impair the
obligation of each Borrower, which is absolute and unconditional, to repay the
Obligations. The obligation of any Borrower to make any contribution to another
Borrower under this subsection 2.11 shall be deemed an expense of administration
of such Borrower arising under Section 503(b) of the Bankruptcy Code and shall
be junior in priority to all Obligations of such Borrower under the Loan
Documents.
D. Hennepin. Notwithstanding anything herein to the contrary, Covanta
Hennepin Energy Resource, Co., L.P. ("HERC") shall not be deemed to have
borrowed money under this Agreement or be liable for the repayment of money
borrowed under this Agreement to the extent such borrowing or liability would
violate applicable provisions of the Federal Power Act. Company hereby agrees to
exercise best efforts to obtain as soon as practicable after the Closing Date
all authorizations and/or approvals necessary under the Federal Power Act for
HERC to borrow money as a Borrower under this Agreement, and immediately upon
Company's receipt of any such approvals HERC shall without further action be
deemed to have borrowed money under this Agreement, and shall be liable for the
repayment thereof, as a Borrower for all purposes under this Agreement as if the
restriction in the immediately preceding sentence were null and void ab initio
and of no further force and effect.
2.12 Subordination of Tranche B Obligations; Relative Rights.
Each of the Tranche B Lenders agrees that the Tranche B Obligations
shall be junior and subordinate in seniority and in right of payment to the
prior payment in full in cash of all Tranche A Obligations and that the Liens
and security interests securing the Tranche B Obligations shall be junior to the
Liens and security interests securing the Tranche A Obligations, in accordance
with the provisions of this subsection 2.12. Loan Parties shall not make, and no
Tranche B Lender shall accept, any distribution, payment or prepayment of
principal or prepayment of other amounts due, of any kind whatsoever (including
by distribution of Collateral, other assets, set off, exchange or any other
manner) with respect to the Tranche B Obligations at any time when any of the
Tranche A Obligations are due and unpaid. In the event that any Tranche B Lender
shall receive any payment or distribution of assets that such Tranche B Lender
is not entitled to receive or retain under the provisions of this Agreement,
such Tranche B Lender shall hold any amount so received in trust for the holders
of the Tranche A Obligations and shall, if it has received notice or has
knowledge of any amount due and unpaid with respect to the Tranche A Obligations
at the time of receipt of such payment, segregate such assets from other assets
held by such Tranche B Lender, and shall forthwith turn over such payment or
distribution (without liability for interest thereon) to Administrative Agent
for distribution to the Tranche A Lenders in the form received (with any
necessary endorsement) to be applied to such Tranche A Obligations.
Notwithstanding the foregoing, if, at the time a distribution or other payment
is made to a Tranche B Lender, no Tranche A Obligation is due and payable, such
distribution or payment may be retained by such Tranche B Lender notwithstanding
that a Tranche A Obligation subsequently becomes due and payable. No payment or
distribution to any Tranche A Lender pursuant to the provisions of this
subsection 2.12 shall entitle the applicable Tranche B Lender or Tranche B
Lenders to exercise any right of subrogation in respect thereof until no Tranche
A Obligations (including with respect to any Tranche A Letters of Credit) shall
be due and payable. With respect to any subrogation claims, each Tranche B
Lender hereby (to the extent permitted by applicable law) waives, releases and
discharges any and all rights, claims, causes of action, liabilities, claims and
demands, in law or equity, which such Tranche B Lender has had, now has, or may
in the future have, arising out of or relating directly or indirectly to the
taking or not taking of any act or proceeding or not proceeding with any action
which the Tranche A Lenders, or any Agent on behalf of the Tranche A Lenders,
may take in an effort to collect in respect of the Tranche A Obligations.
Nothing contained in this subsection 2.12 shall be construed as affecting the
priority of the Obligations as against any other claims in the Bankruptcy Cases.
2.13 Tranche B Lenders' Approval of Plan of Reorganization.
Notwithstanding anything to the contrary herein and for purposes of
Section 1126 and 1129 of the Bankruptcy Code, Lenders hereby acknowledge and
agree that, with respect to the acceptance of any plan of reorganization for any
Borrower, and any modification to any previously so accepted plan of
reorganization to the extent of any modification to the treatment of the
administrative expense claims under the Tranche B Commitments, Tranche B Lenders
shall vote as a single class with respect to such acceptance, and the written
approval of Tranche B Lenders having or holding more than 60% of the aggregate
Tranche B Loan Exposure of all Tranche B Lenders shall be required and shall be
binding upon all Tranche B Lenders with respect thereto.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
A. Letters of Credit.
(i) Tranche A Letters of Credit. In addition to Borrowers requesting
that Lenders make Loans pursuant to subsection 2.1A, Borrowers may request,
in accordance with the provisions of this subsection 3.1, from time to time
during the period from the Closing Date to but excluding the 30th day prior
to the Termination Date, that Administrative Agent or Documentation Agent
issue Tranche A Letters of Credit payable on a sight basis for the account
of Borrowers for the purposes of supporting the obligations set forth on
Schedule 3.1A(i) annexed hereto. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrowers herein set forth, any one or more Lenders may, but (except as
provided in subsection 3.1B(i)) shall not be obligated to, issue such
Tranche A Letters of Credit in accordance with the provisions of this
subsection 3.1; provided that Borrowers shall not request that any Issuing
Lender issue (and no Issuing Lender shall issue) any Tranche A Letter of
Credit:
(a) if, after giving effect to such issuance, the Total
Utilization of Tranche A Commitments would exceed the lesser of (x)
the Tranche A Commitments and (y) the amount permitted to be
outstanding hereunder pursuant to the Interim Borrowing Order or the
Final Borrowing Order, as applicable, in each case as the foregoing
limits may be in effect from time to time;
(b) if, after giving effect to such issuance, the Tranche A
Letter of Credit Usage would exceed the Tranche A Letter of Credit
Sublimit;
(c) having an expiration date later than the earlier of (a) the
day prior to the Stated Maturity Date and (b) the date which is one
year from the date of issuance of such Tranche A Letter of Credit;
provided that the immediately preceding clause (b) shall not prevent
any Issuing Lender from agreeing that a Tranche A Letter of Credit
will automatically be extended to a date prior to the Stated Maturity
Date unless such Issuing Lender elects not to extend for any such
additional period; and provided, further that such Issuing Lender
shall elect not to extend such Tranche A Letter of Credit if it has
knowledge that an Event of Default has occurred and is continuing (and
has not been waived in accordance with subsection 10.6) at the time
such Issuing Lender must elect whether or not to allow such extension;
or
(d) denominated in a currency other than Dollars.
(ii) Tranche B Letters of Credit. On the relevant Applicable
Conversion Date with respect to any Existing L/C, (a) any existing
participation of a Tranche B Lender (in its capacity as a Prepetition
Lender) in such Existing L/C shall terminate and be of no further force and
effect, (b) any rights or obligations of Tranche B Lenders (in their
capacity as Prepetition Lenders) to reimburse or participate in honored
drawings under, or to participate in payments made by Company or any of its
Subsidiaries with respect to, such Existing L/C under any of the
Prepetition Credit Documents shall be superseded by this Agreement, and (c)
any and all rights, titles, claims (including "claims" within the meaning
of Section 101(5) of the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.)), interests, powers and privileges -- ---- of the
issuer of any Existing L/C under the Prepetition Credit Documents shall be
deemed to have reverted back to the Issuing Lender of such Existing L/C and
such Existing L/C shall be deemed to be converted on such date to a Tranche
B Letter of Credit under this Agreement. Subject to the provisions of
subsection 3.1B(ii), prior to the expiration date of any Tranche B Letter
of Credit, the Issuing Lender with respect to such Tranche B Letter of
Credit may, and at the request of Agents shall, issue a Tranche B Letter of
Credit to replace such expiring Tranche B Letter of Credit or amend or
extend the expiration date of such expiring Tranche B Letter of Credit, and
upon such issuance or extension Borrowers shall be deemed to have requested
that the Issuing Lender with respect to such outstanding Tranche B Letter
of Credit issue a Tranche B Letter of Credit to replace such Tranche B
Letter of Credit or so extend the maturity of such Tranche B Letter of
Credit, respectively; provided that no Issuing Lender shall issue or extend
the expiration date of any outstanding Tranche B Letter of Credit:
(a) if the underlying Contractual Obligation to provide any such
Tranche B Letter of Credit or a replacement thereto to the beneficiary
thereof has terminated, and/or the beneficiary of such Tranche B
Letter of Credit has otherwise returned the same for cancellation
without the expectation that a Tranche B Letter of Credit will be
issued contemporaneously with such cancellation in substitution
therefor;
(b) unless the terms of such Tranche B Letter of Credit as so
replaced or extended are substantially identical to the terms of the
corresponding Tranche B Letter of Credit being replaced or extended;
(c) unless the stated amount of such Tranche B Letter of Credit
as so replaced or extended does not exceed the amount of the
corresponding Tranche B Letter of Credit being replaced or extended,
as the case may be, and is denominated in the same currency;
(d) if such Tranche B Letter of Credit as so replaced or extended
has an expiration date later than the earlier of (y) the day prior to
the Stated Maturity Date and (z) the date which is one year from the
date of issuance of such Tranche B Letter of Credit, unless a later
expiration date is necessary in the judgment of Agents to avoid a
drawing under the corresponding Tranche B Letter of Credit being
replaced or extended, and such later expiration date is no later than
the first date on which such corresponding Tranche B Letter of Credit
being replaced or extended could expire without giving rise to a right
of the beneficiary thereof to make a drawing thereunder solely as a
result of or in anticipation of such expiration; or
(e) if, after giving effect to such issuance or extension, the
Total Utilization of Tranche B Commitments would exceed the Tranche B
Commitments.
B. Mechanics of Issuance.
(i) Request for Issuance of Tranche A Letter of Credit. Whenever
Borrowers desire the issuance of a Tranche A Letter of Credit, they shall
deliver to Administrative Agent a Request for Issuance no later than 12:00
Noon (New York City time) at least 10 Business Days, or in each case such
shorter period as may be agreed to by Administrative Agent in any
particular instance, in advance of the proposed date of issuance; provided,
that Borrowers shall not request, and no Issuing Lender shall be obligated
to issue, a Tranche A Letter of Credit for the purpose of supporting an
obligation set forth on Schedule 3.1A(i) annexed hereto that is supported
by a performance bond or other similar instrument unless Borrowers have
been unable at the time of such request and such proposed issuance, after
exercising best efforts in compliance with subsection 6.13, to renew or
extend the performance bond or other similar instrument supporting such
obligation. Upon receipt by Administrative Agent of a Request for Issuance
pursuant to this subsection 3.1B(i) requesting the issuance of a Tranche A
Letter of Credit, in the event Administrative Agent elects to issue such
Tranche A Letter of Credit, Administrative Agent shall promptly so notify
Borrowers, and Administrative Agent shall be the Issuing Lender with
respect thereto. In the event that Administrative Agent, in its sole
discretion, elects not to issue such Tranche A Letter of Credit,
Administrative Agent shall promptly so notify Borrowers, whereupon
Borrowers may request Documentation Agent to issue such Tranche A Letter of
Credit by delivering to Documentation Agent a copy of the applicable
Request for Issuance. Documentation Agent shall promptly notify Borrowers
and Administrative Agent whether or not, in its sole discretion, it has
elected to issue such Tranche A Letter of Credit, and if Documentation
Agent elects to issue such Tranche A Letter of Credit, Documentation Agent
shall be the Issuing Lender with respect thereto. In the event that
Documentation Agent shall have declined to issue such Tranche A Letter of
Credit, notwithstanding the prior election of Administrative Agent not to
issue such Tranche A Letter of Credit, Administrative Agent shall be
obligated (subject to the proviso to the first sentence of this subsection
3.1B(i)) to issue such Tranche A Letter of Credit and shall be the Issuing
Lender with respect thereto, notwithstanding the fact that in connection
with a Tranche A Letter of Credit, the Tranche A Letter of Credit Usage
with respect to such Tranche A Letter of Credit and with respect to all
other Tranche A Letters of Credit issued by Administrative Agent, when
aggregated with Administrative Agent's outstanding Tranche A Loans, may
exceed Administrative Agent's Tranche A Commitment then in effect. The
Issuing Lender of a Tranche A Letter of Credit, in its reasonable
discretion, may require changes in the text of a proposed Letter of Credit
or any documents described in or attached to the relevant Request for
Issuance. No Tranche A Letter of Credit shall require payment against a
conforming demand for payment to be made thereunder on the same business
day (under the laws of the jurisdiction in which the office of the Issuing
Lender to which such demand for payment is required to be presented is
located) that such demand for payment is presented if such presentation is
made after 10:00 A.M. (in the time zone of such office of the Issuing
Lender) on such business day.
(ii) Issuance of Tranche B Letters of Credit. As of the Applicable
Conversion Date with respect to an Existing L/C, such Existing L/C shall be
deemed converted to a Tranche B Letter of Credit that shall be deemed for
purposes of this Agreement to be issued on such Applicable Conversion Date.
After the deemed issuance of any Tranche B Letter of Credit pursuant to the
foregoing sentence, whenever the Issuing Lender with respect to such
Tranche B Letter of Credit desires to issue a Tranche B Letter of Credit to
replace such outstanding Tranche B Letter of Credit, or Agents request that
such Issuing Lender issue a Tranche B Letter of Credit to replace such
outstanding Tranche B Letter of Credit, such Issuing Lender shall deliver
to Agents a notice of such issuance no later than 12:00 Noon (New York City
time) at least 10 Business Days (or in each case such shorter period as may
be agreed to by Agents in any particular instance) in advance of the
proposed date of issuance, which notice shall describe the relevant Tranche
B Letter of Credit and the verbatim text of the Tranche B Letter of Credit
proposed to be issued and shall specify such proposed date of issuance.
Unless Agents or Requisite Lenders otherwise direct such Issuing Lender
prior to the proposed date of issuance, or the Termination Date shall have
occurred, on such proposed date of issuance such Issuing Lender shall issue
a Tranche B Letter of Credit in the form set forth in such notice (subject
to the provisions of subsection 3.1A(ii)) to replace such outstanding
Tranche B Letter of Credit.
(iii) Recertification. Borrowers shall notify the applicable Issuing
Lender (and Administrative Agent, if Administrative Agent is not such
Issuing Lender) prior to the issuance of any Tranche A Letter of Credit in
the event that any of the matters to which Borrowers are required to
certify in the applicable Request for Issuance is no longer true and
correct as of the proposed date of issuance of such Tranche A Letter of
Credit, and upon the issuance of any Tranche A Letter of Credit Borrowers
shall be deemed to have re-certified, as of the date of such issuance, as
to the matters to which Borrowers are required to certify in the applicable
Request for Issuance.
(iv) Issuance of Letter of Credit. Solely with respect to Tranche A
Letters of Credit, upon satisfaction or waiver (in accordance with
subsection 10.6) of the conditions set forth in subsection 4.3, the
applicable Issuing Lender shall issue the requested Tranche A Letter of
Credit in accordance with such Issuing Lender's standard operating
procedures.
(v) Notification to Lenders. No later than 10 Business Days prior to
the decision to extend or reissue any Letter of Credit, the Issuing Lender
thereof shall notify Agents in writing of the date on which such Issuing
Lender expects such decision will be made and of the date by which such
decision must be made in order to avoid a drawing under such Letter of
Credit. Promptly after the issuance, amendment or extension of any Letter
of Credit the applicable Issuing Lender shall promptly notify
Administrative Agent and each Lender of such issuance, amendment or
extension in writing. Upon receipt of such notice (or, if Administrative
Agent is the Issuing Lender, together with such notice), Administrative
Agent shall notify each Lender in writing of the amount of such Lender's
respective participation in such Letter of Credit, determined in accordance
with subsection 3.1C and, if so requested by a Lender, Administrative Agent
shall provide such Lender with a copy of such Letter of Credit, amendment
or extension.
C. Lenders' Purchase of Participations in Letters of Credit.
Immediately upon the issuance of each Tranche A Letter of Credit, each Tranche A
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation in such Tranche A Letter of Credit and any
drawings honored thereunder in an amount equal to such Tranche A Lender's Pro
Rata Share of the maximum amount which is or at any time may become available to
be drawn thereunder. Immediately upon the issuance of any Tranche B Letter of
Credit (including any deemed issuance of a Tranche B Letter of Credit pursuant
to subsection 3.1A(ii)), each Tranche B Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Issuing Lender a participation in
such Tranche B Letter of Credit and any drawings honored thereunder in an amount
equal to such Lender's Pro Rata Share of the maximum amount which is or at any
time may become available to be drawn thereunder. Each Borrower, with respect to
each Existing L/C and Tranche B Letter of Credit, hereby (1) represents,
warrants, agrees, covenants and reaffirms that it has no (and it permanently and
irrevocably waives and releases Agents and Lenders from any, to the extent
arising on or prior to the Applicable Conversion Date with respect to the
relevant Existing L/C) defense, set off, claim or counterclaim against Agents or
any Lender in regard to its obligations in respect of any such participation in
a Tranche B Letter of Credit or any drawings honored thereunder, and (2) affirms
its obligation to pay such participations, and any amounts owed (whether or not
then due and payable, and including all interest and fees accrued under the
Prepetition Loan Documents to the Applicable Conversion Date with respect to the
relevant Existing L/C) with respect to each Tranche B Letter of Credit in
accordance with the terms and conditions of this Agreement and the other Loan
Documents.
3.2 Letter of Credit Fees.
Borrowers jointly and severally agree to pay the following amounts
with respect to Letters of Credit issued hereunder:
(i) with respect to each Tranche A Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own account,
equal to the greater of (X) $500 and (Y) 0.25% per annum of the daily
amount available to be drawn under such Tranche A Letter of Credit and (b)
a letter of credit fee, payable to Administrative Agent for the account of
Tranche A Lenders, equal to the excess of the Eurodollar Rate Margin over
0.25% per annum (expressed as a daily rate) multiplied by the daily amount
available to be drawn under such Tranche A Letter of Credit, each such
fronting fee and letter of credit fee to be payable in arrears on and to
(but excluding) the last day of each month and computed on the basis of a
360-day year, for the actual number of days elapsed;
(ii) with respect to each Tranche B Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own account,
equal to the greater of (X) $500 and (Y) 0.25% per annum of the daily
amount available to be drawn under such Tranche B Letter of Credit, and (b)
a letter of credit fee, payable to Administrative Agent for the account of
Tranche B Lenders, equal to 2.50% per annum (expressed as a daily rate)
multiplied by the daily amount available to be drawn under such Tranche B
Letter of Credit, each such fronting fee and letter of credit fee to be
payable in arrears on and to (but excluding) the last day of each month and
computed on the basis of a 360-day year, for the actual number of days
elapsed; and
with respect to the issuance, amendment or transfer of each Letter of Credit and
each payment of a drawing made thereunder (without duplication of the fees
payable under clauses (i) and (ii) above), documentary and processing charges
payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case
may be.
For purposes of calculating any fees payable under clauses (i) and
(ii) of this subsection 3.2, the daily amount available to be drawn under any
Letter of Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) or (ii)(b) of this subsection 3.2 with respect to a
Tranche A Letter of Credit or a Tranche B Letter of Credit, Administrative Agent
shall distribute to each Tranche A Lender or Tranche B Lender, respectively, its
applicable Pro Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in compliance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Borrowers of Amounts Paid Under Letters of
Credit. In the event an Issuing Lender has determined to honor a drawing under a
Letter of Credit issued by it, such Issuing Lender shall immediately notify
Borrowers and Borrowers shall reimburse such Issuing Lender on or before the
Business Day immediately following the date on which such drawing is honored
(the "Reimbursement Date") in an amount in Dollars and in same day funds equal
to the amount of such payment, subject to the provisions of this subsection
3.3B. Anything contained in this Agreement to the contrary notwithstanding, (i)
if such drawing is under a Tranche A Letter of Credit, unless Borrowers shall
have notified Administrative Agent and Issuing Lender prior to 10:00 A.M. (New
York City time) on the date such drawing is honored that Borrowers intend to
reimburse such Issuing Lender for the amount of such payment with funds other
than the proceeds of Tranche A Loans, then Borrowers shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Lenders to
make Tranche A Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such payment, (ii) if such drawing is
under a Tranche B Letter of Credit, then Borrowers shall be deemed to have given
a timely Notice of Borrowing to Administrative Agent requesting Lenders to make
Tranche B Loans that are Base Rate Loans on the Business Day immediately
following the date on which such drawing is honored in an amount in Dollars
equal to the amount of such payment, and (iii) subject to satisfaction or waiver
of the conditions specified in subsection 4.2B, Lenders shall, on the
Reimbursement Date, make Tranche A Loans or Tranche B Loans (as applicable) that
are Base Rate Loans in the applicable foregoing amount, the proceeds of which
shall be applied directly by Administrative Agent to reimburse such Issuing
Lender for the amount of such payment; and provided, further that if for any
reason proceeds of Tranche A Loans are not received by such Issuing Lender on
the Reimbursement Date in an amount equal to the amount of such payment,
Borrowers shall reimburse such Issuing Lender, on demand, in an amount in same
day funds equal to the excess of the amount of such payment over the aggregate
amount of such Tranche A Loans, if any, which are so received. Nothing in this
subsection 3.3B shall be deemed to relieve any Lender from its obligation to
make Tranche A Loans or Tranche B Loans, as the case may be, on the terms and
conditions set forth in this Agreement, and Borrowers shall retain any and all
rights they may have against any Lender resulting from the failure of such
Lender to make such Tranche A Loans or Tranche B Loans under this subsection
3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment by Lenders. In the event that Borrowers shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any payment by such Issuing Lender under a
Letter of Credit issued by it, whether from the proceeds of a Tranche A
Loan or Tranche B Loan or otherwise, such Issuing Lender shall promptly
notify Administrative Agent of the unreimbursed amount of such drawing and
upon receipt of such notice, Administrative Agent shall promptly notify
each Lender (other than such Issuing Lender) of such unreimbursed amount
and of such Lender's respective participation therein based on such
Lender's Pro Rata Share; provided that no Lender's funding of its
participation in any such drawing shall exceed its Pro Rata Share of the
amount of such drawing, and (a) the aggregate principal amount of all
participations funded by a Lender with respect to Tranche A Letters of
Credit shall in no event exceed the amount of such Lender's Tranche A
Commitment minus the principal amount of such Lender's outstanding Tranche
A Loans, and (b) the aggregate principal amount of all participations
funded by a Lender with respect to Tranche B Letters of Credit shall in no
event exceed the amount of such Lender's Tranche B Commitment minus the
principal amount of such Lender's outstanding Tranche B Loans. Each Lender
shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York City time) on the first Business Day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by Administrative Agent. In the event that any Lender
fails to make available to such Issuing Lender on such business day the
amount of such Lender's participation in such Letter of Credit as provided
in this subsection 3.3C, such Issuing Lender shall be entitled to recover
such amount on demand from such Lender together with interest thereon at
the rate customarily used by such Issuing Lender for the correction of
errors among banks for three Business Days and thereafter at the Base Rate.
Nothing in this subsection 3.3C shall be deemed to prejudice the right of
any Lender to recover from any Issuing Lender any amounts made available by
such Lender to such Issuing Lender pursuant to this subsection 3.3C in the
event that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of such
Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Borrowers. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of any
payment by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall deliver to Administrative Agent for distribution to
any other Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such payment such other Lender's Pro Rata Share of
all payments subsequently received by such Issuing Lender from Borrowers in
reimbursement of such payment under the Letter of Credit when such payments
are received. Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Borrowers. Borrowers agree to pay to each
Issuing Lender, with respect to payments under any Letters of Credit issued
by it, interest on the amount paid by such Issuing Lender in respect of
each such payment from the date a drawing is honored to but excluding the
date such amount is reimbursed by Borrowers (including any such
reimbursement out of the proceeds of Tranche A Loans or Tranche B Loans
pursuant to subsection 3.3B) at a rate equal to (a) with respect to Tranche
A Letters of Credit, (1) for the period from the date such drawing is
honored to but excluding the Reimbursement Date, the rate then in effect
under this Agreement with respect to Tranche A Loans that are Base Rate
Loans and (2) thereafter, a rate which is 2% per annum in excess of the
rate of interest otherwise payable under this Agreement with respect to
Tranche A Loans that are Base Rate Loans, and (b) with respect to Tranche B
Letters of Credit, (1) for the period from the date such drawing is honored
to but excluding the Reimbursement Date, the rate then in effect under this
Agreement with respect to Tranche B Loans that are Base Rate Loans and (2)
thereafter, a rate which is 2% per annum in excess of the rate of interest
otherwise payable under this Agreement with respect to Tranche B Loans that
are Base Rate Loans. Interest payable pursuant to this subsection 3.3D(i)
shall be computed on the basis of a 360-day year, for the actual number of
days elapsed in the period during which it accrues and shall be payable on
demand or, if no demand is made, on the date on which the related drawing
under a Letter of Credit is reimbursed in full. All payments by Borrowers
in respect of payments made by an Issuing Lender under a Letter of Credit
issued by it shall include payment of accrued interest on the principal
amount being repaid or prepaid, and all such payments shall be applied to
the payment of interest before application to principal.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a payment under a Letter of Credit
issued by it, (a) such Issuing Lender shall distribute to Administrative
Agent for distribution to each other Lender, out of the interest received
by such Issuing Lender in respect of the period from the date such drawing
is honored to but excluding the date on which such Issuing Lender is
reimbursed for the amount of such payment (including any such reimbursement
out of the proceeds of Tranche A Loans pursuant to subsection 3.3B), the
amount that such other Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable in respect
of such Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been honored under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such payment, such Issuing
Lender shall distribute to Administrative Agent for distribution to each
other Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such payment such other Lender's Pro Rata Share of
any interest received by such Issuing Lender in respect of that portion of
such payment so reimbursed by other Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Lenders to but
excluding the date on which such portion of such payment is reimbursed by
Borrowers. Any such distribution shall be made to a Lender at its primary
address set forth below its name on the appropriate signature page hereof
or at such other address as such Lender may request.
3.4 Obligations Absolute.
The obligation of Borrowers to reimburse each Issuing Lender for
payments under the Letters of Credit issued by it and to repay any Loans made by
Lenders pursuant to subsection 3.3B and the obligations of Lenders under
subsection 3.3C(i) shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances
including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
any Borrower or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against any Borrower, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between any
Borrower or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 Nature of Issuing Lenders' Duties.
A. Indemnification. In addition to amounts payable as provided in
subsection 2.7, Borrowers hereby jointly and severally agree to protect,
indemnify, pay and save harmless each Issuing Lender from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of outside counsel and
allocated costs of internal counsel) which such Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit by such Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of such Issuing Lender as determined by a final
judgment of a court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by such Issuing Lender of a proper demand for
payment made under any Letter of Credit issued by it or (ii) the failure of such
Issuing Lender to honor a drawing under any such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Government Authority.
B. Nature of Issuing Lenders' Duties. As between Borrowers and any
Issuing Lender, Borrowers assume all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such 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; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any act or omission by a Government
Authority specified in subsection 3.5A, and none of the above shall affect or
impair, or prevent the vesting of, any of such Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to any Borrower.
Notwithstanding anything to the contrary contained in this subsection
3.5, Borrowers shall retain any and all rights they may have against any Issuing
Lender for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 Conditions to Closing Date.
The obligations of Lenders with respect to their respective
Commitments and to make any Loans to be made on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. Loan Party Documents. On or before the Closing Date, Borrowers
shall, and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Borrowers or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Copies of the Organizational Documents of such Person, certified
by the Secretary of State of its jurisdiction of organization or, if such
document is of a type that may not be so certified, certified by the
secretary or similar officer of the applicable Loan Party, together with a
good standing certificate from the Secretary of State of its jurisdiction
of organization and each other state in which such Person is qualified to
do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the Closing Date
(notwithstanding the foregoing, it is understood and agreed that those
certificates evidencing good standing that Borrowers are unable (after
exercising reasonable best efforts) to obtain on or prior to the proposed
Closing Date shall not be required to be delivered on or prior to the
Closing Date for purposes of this subsection 4.1A(i), provided, that such
certificates not so delivered shall be delivered to Agents no later than 30
days after the Closing Date);
(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents
to which it is a party and, in the case of each Borrower, approving and
authorizing the commencement of the Chapter 11 Cases, certified as of the
Closing Date by the secretary or similar officer of such Person as being in
full force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which such Person is
a party; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. Fees. Borrowers shall have paid to Administrative Agent, for
distribution (as appropriate) to Agents and Lenders, the fees payable on the
Closing Date referred to in subsection 2.3 and all reasonable and documented
costs and expenses (including legal fees, due diligence fees, recordation
expenses, other out-of-pocket expenses and taxes) of Agents and Lenders incurred
in connection with the negotiation, preparation, recordation, execution and
completion of the Loan Documents and the transactions contemplated thereby,
including such fees and expenses of O'Melveny & Xxxxx LLP, counsel to Agents,
and Ernst & Young Corporate Finance LLC.
C. Representations and Warranties; Performance of Agreements. Company
shall have delivered to Agents an Officer's Certificate, in form and substance
satisfactory to Agents, to the effect that the representations and warranties in
Section 5 are true, correct and complete in all material respects on and as of
the Closing Date to the same extent as though made on and as of that date (or,
to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Borrowers shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date.
D. Orders; Related Consents.
(i) The Interim Borrowing Order shall have been entered by the
Bankruptcy Court, shall contain Adequate Protection Provisions, shall be in
full force and effect and shall be unstayed by the Bankruptcy Court or any
other court of competent jurisdiction, and Agents and the Lenders shall be
satisfied that the Interim Borrowing Order shall be binding on all material
creditors of Borrowers and shall be effective to provide the stay of
actions, priorities, Liens and other protections for Borrowers, Agents and
the Lenders purported to be granted thereby.
(ii) The Project Cash Collateral Order and all other First Day Orders
(which shall have been provided to the Lenders in substantially final form
not less than three days prior to the Petition Date) entered by the
Bankruptcy Court shall be in form and substance reasonably satisfactory to
Agents and Requisite Lenders (provided that such orders shall be deemed
satisfactory to Requisite Lenders so long as they are substantially in the
form delivered to Agents and Lenders most recently on or prior to the date
which is three days prior to the proposed Closing Date, unless Requisite
Lenders shall have notified Agents on or prior to such proposed Closing
Date of their objection thereto).
(iii) Any initial court orders under foreign bankruptcy or other
similar foreign law with respect to any Foreign Subsidiaries shall be in
form and substance reasonably satisfactory to Agents and Requisite Lenders
(provided that such orders shall be deemed satisfactory to Requisite
Lenders so long as they are substantially in the form delivered to Agents
and Lenders most recently on or prior to the date which is three days prior
to the proposed Closing Date, unless Requisite Lenders shall have notified
Agents on or prior to such proposed Closing Date of their objection
thereto).
E. Pleadings. No pleading or application shall have been filed in the
Bankruptcy Court by any party in interest which is not withdrawn, dismissed or
denied seeking (i) to dismiss or convert any of the Chapter 11 Cases to a
Chapter 7 Case, (ii) the appointment of a Chapter 11 trustee in any of the
Chapter 11 Cases, (iii) the appointment of an examiner having enlarged powers
relating to the operation of the business of Borrowers (beyond those set forth
under Sections 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b)
of the Bankruptcy Code, (iv) the granting of a super-priority claim or a Lien
pari passu or senior to that of Administrative Agent granted pursuant to the
Collateral Documents and the Interim Borrowing Order, (v) to stay, reverse,
vacate, or otherwise modify the Interim Borrowing Order without the prior
written consent of Requisite Lenders, or (vi) relief from the automatic stay (or
any other injunction having similar effect) so as to allow a third party to
proceed against any material property or assets of Borrowers.
F. Monthly Budget. Agents and the Lenders shall have received, (i)
the initial 13-Week Cash Forecast, in form and substance satisfactory to Agents,
and (ii) the initial Monthly Budget, in form and substance satisfactory to
Agents and Requisite Lenders (provided that such Monthly Budget shall be deemed
satisfactory to Requisite Lenders so long as it is substantially in the form
delivered to Agents and Lenders most recently on or prior to the date which is
three days prior to the proposed Closing Date, unless Requisite Lenders shall
have notified Agents on or prior to such proposed Closing Date of their
objection thereto).
G. Opinions of Counsel to Loan Parties. Lenders shall have received
originally executed copies of one or more favorable written opinions of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx and LeBoeuf, Lamb, Xxxxxx & XxXxx, counsel for Loan
Parties, in form and substance reasonably satisfactory to Agents and their
counsel, dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in Exhibit XIII annexed hereto and as to such
other matters as Agents acting on behalf of Lenders may reasonably request (this
Agreement constituting a written request by Borrowers to such counsel to deliver
such opinions to Agents and Lenders).
H. Evidence of Insurance. Administrative Agent shall have received a
certificate from Company's insurance broker or other evidence satisfactory to it
that all insurance required to be maintained pursuant to subsection 6.4 is in
full force and effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
I. Necessary Governmental Authorizations and Consents. Borrowers
shall have obtained all Governmental Authorizations and all consents of other
Persons, in each case that are necessary or advisable in connection with the
transactions contemplated by the Loan Documents and the continued operation of
the business conducted by Company and its Subsidiaries in substantially the same
manner as conducted prior to the Closing Date. Each such Governmental
Authorization or consent shall be in full force and effect, except in a case
where the failure to obtain or maintain a Governmental Authorization or consent,
either individually or in the aggregate, should not reasonably be expected to
have a Material Adverse Effect. Administrative Agent shall have received an
Officer's Certificate of Company in form and substance reasonably satisfactory
to Administrative Agent certifying as to the foregoing matters and any other
evidence reasonably requested by Agents in support thereof.
J. Security Interests in Personal and Mixed Property. To the extent
not otherwise satisfied pursuant to subsection 4.1K, Administrative Agent shall
have received evidence satisfactory to it that Loan Parties shall have taken or
caused to be taken all such actions, executed and delivered or caused to be
executed and delivered all such agreements, documents and instruments, and made
or caused to be made all such filings and recordings (other than the filing or
recording of items described in clauses (ii) and (iii) below) that
Administrative Agent may reasonably request in order to evidence, in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected security
interest in the entire personal and mixed property Collateral, with the priority
set forth in the Interim Borrowing Order or the Final Borrowing Order, as
applicable. Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent) representing
all capital stock included in the Collateral and (b) all promissory notes
or other instruments (duly endorsed, where appropriate, in a manner
satisfactory to Administrative Agent) evidencing any Collateral;
(ii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Loan Party with respect
to all personal and mixed property Collateral of such Loan Party, for
filing in all jurisdictions as Administrative Agent may reasonably request
to evidence the security interests in favor of Administrative Agent created
in such Collateral; and
(iii) PTO Cover Sheets, Etc. Delivery to Administrative Agent of all
cover sheets or other documents or instruments Administrative Agent may
reasonably request to be filed with the PTO in order to evidence Liens in
favor of Administrative Agent in respect of any IP Collateral.
K. Closing Date Mortgages. Administrative Agent shall have received
from Company and each applicable Subsidiary Guarantor executed and notarized
Mortgages in proper form for recording in all appropriate places in all
applicable jurisdictions, encumbering each Real Property Asset listed in
Schedule 4.1K annexed hereto.
L. Matters Relating to Existing Indebtedness of Company and its
Subsidiaries. Agents shall have received an Officer's Certificate of Company
stating that all Indebtedness and Contingent Obligations constituting
Prepetition Indebtedness (and all amounts owing in respect thereof) of Borrowers
and their Subsidiaries as of the Petition Date are as set forth on Schedule 7.1
annexed hereto. The terms and conditions of all such Indebtedness and Contingent
Obligations shall be in form and in substance satisfactory to Agents.
M. Collateral Review. On or before the Closing Date, Agents shall
have received an updated review and analysis of all Collateral in form and
substance satisfactory to Agents.
N. Agreement Regarding Certain Obligations. Any agreements relating
to the outstanding senior credit facilities of Covanta Power Pacific, Inc. and
its Subsidiaries (under which Bayerische Hypo-Und Vereinsbank AG is agent for
the lenders party thereto) entered into on or before the Closing Date in
anticipation of or with respect to the commencement of the Chapter 11 Cases
shall be in form and in substance satisfactory to Agents, and Agents shall have
received copies of all such agreements.
O. No Material Adverse Change. Agents shall be satisfied that there
has been no material adverse change since September 30, 2001 in the business,
property, assets, operations or financial condition of Company and its
Subsidiaries taken as a whole (other than the commencement of the Chapter 11
Cases and except as disclosed prior to the Closing Date in public filings or in
writing to Lenders (including the successive downgrades by Moody's and other
rating agencies of Company's long term unsecured debt rating prior to the
Closing Date)), and Company shall have delivered to Agents an Officer's
Certificate to the foregoing effect.
P. Financial Projections. Company shall have delivered to Agents and
Lenders financial projections (including monthly cash flow projections)
satisfactory to Agents indicating that Company's foreign operations and those
Subsidiaries of Company that are not Borrowers shall be self-funding during the
term of this Agreement, except as permitted in accordance with the Monthly
Budget.
Q. Cash Management System. The cash management system of Company and
its Subsidiaries shall be as set forth on Schedule 4.1Q annexed
hereto.
R. Restructuring Advisor. Borrowers shall have retained, on terms
reasonably acceptable to Agents, a restructuring advisor reasonably satisfactory
to Agents. Such restructuring advisor shall have been retained by Company on
terms providing for such restructuring advisor to report directly to the
Governing Body of Company and to advise and assist Company in developing,
evaluating and implementing exit alternatives from the Chapter 11 Cases.
S. Amendment to Intercreditor Agreement. Company, certain of its
Subsidiaries, certain Prepetition Lenders and Agents shall have entered into
(and Agents shall have received) a duly executed and effective amendment to the
Intercreditor Agreement in substantially the form attached hereto as Exhibit XV.
T. No Additional Prepetition Revolving Loans. No loans shall have
been made or letters of credit issued pursuant to the "Revolving Loan
Commitments" under the Prepetition Credit Agreement after February 1, 2002
(other than loans made to reimburse drawings under letters of credit pursuant to
subsection 3.3 of the Prepetition Credit Agreement).
U. Retention Arrangements. Borrowers shall have disclosed in writing
to Agents and Lenders the terms of any proposed bonus, retention, severance and
similar arrangements with respect to their respective officers, employees,
directors and advisors, which terms shall be satisfactory to Agents.
V. Completion of Proceedings. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by Agents,
acting on behalf of Lenders, and their counsel shall be satisfactory in form and
substance to Agents and such counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
4.2 Conditions to All Loans.
Except with respect to Tranche A Loss Sharing Loans, the obligations
of Lenders to make Loans on each Funding Date are subject to the following
further conditions precedent:
A. Administrative Agent shall have received before that Funding Date,
(i) in accordance with the provisions of subsection 2.1C, an originally
executed Notice of Borrowing, in each case signed by a duly authorized Officer
of Borrowers, and (ii) a certificate executed by the chief financial officer of
each Borrower certifying to Agent (a) that such officer and Borrowers believe on
and as of such Funding Date that (1) the estimates contained in the 13-Week Cash
Forecast and the Monthly Budget would be good faith estimates if made on such
date and (2) the assumptions on which the 13-Week Cash Forecast and the Monthly
Budget are based are reasonable on such date, and (b) that the proceeds of the
Loans requested on such Funding Date shall be applied in accordance with, and
for the purpose identified in, such 13-Week Cash Forecast and the Monthly
Budget.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any arbitrator or Government
Authority (including the Bankruptcy Court) shall purport to enjoin or
restrain any Lender from making the Loans to be made by it on that Funding
Date;
(v) The Interim Borrowing Order (and, if such Funding Date is more
than 45 days after the Closing Date, the Final Borrowing Order) shall be in
full force and effect and shall be unstayed by the Bankruptcy Court or any
other court of competent jurisdiction;
(vi) After giving effect to the proposed borrowing, (a) the Total
Utilization of Tranche A Commitments shall not exceed the Tranche A
Commitments, and (b) the principal amount of Tranche A Loans (other than
Tranche A Loss Sharing Loans and Tranche A Loans made to reimburse a
drawing under a Tranche A Letter of Credit under subsection 3.3) shall not
exceed the least of (x) the amount permitted to be outstanding hereunder
pursuant to the Interim Borrowing Order or the Final Borrowing Order, as
applicable, (y) the Advance Limit, and (z) the Tranche A Commitments minus
the Tranche A Letter of Credit Sublimit minus the Tranche A Loss Sharing
Sublimit;
(vii) After giving effect to the proposed borrowing, the Total
Utilization of Tranche B Commitments shall not exceed the Tranche B
Commitments;
(viii) The aggregate amount on deposit in the Cash Management
System in the United States shall not exceed $10,000,000 (such amount, in
any event, not to include amounts, if any, required to be held in Deposit
Accounts which are collateral accounts or debt service reserve accounts
described on Schedule 2.4A(iii)(f) annexed hereto);
(ix) In the event that the Thai Asset Sale shall have been consummated
prior to the date of entry of the Final Borrowing Order, on any Funding
Date up to and including the date of entry of the Final Borrowing Order the
aggregate amount on deposit in the Collateral Accounts shall not exceed
$1,000,000;
(x) Except with respect to Tranche B Loans, Company shall have
delivered to Agents an Officer's Certificate (together with such supporting
calculations as Agents may reasonably request) certifying that, before and
after giving effect to the contemplated application of amounts proposed to
be borrowed, Company and its Subsidiaries shall be in pro forma compliance
with subsection 7.6A; and
(xi) No pleading or application shall have been filed in the
Bankruptcy Court (or any other court of competent jurisdiction) by any
party in interest which is not withdrawn, dismissed or denied within 55
days after filing seeking (a) to dismiss or convert any of the Chapter 11
Cases to a Chapter 7 Case, (b) the appointment of a Chapter 11 trustee in
any of the Chapter 11 Cases, (c) the appointment of an examiner having
enlarged powers relating to the operation of the business of Borrowers
(beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy
Code) under Section 1106(b) of the Bankruptcy Code, (d) the granting of a
super-priority claim or a Lien pari passu or senior to that of the
Administrative Agent granted pursuant to the Collateral Documents, the
Interim Borrowing Order and/or the Final Borrowing Order, (e) to stay,
reverse, vacate, or otherwise modify the Interim Borrowing Order or the
Final Borrowing Order without the prior written consent of Administrative
Agent and the Requisite Lenders, or (f) relief from the automatic stay (or
any other injunction having similar effect) so as to allow a third party to
proceed against any material property or assets of Borrowers.
4.3 Conditions to Tranche A Letters of Credit.
The issuance of any Tranche A Letter of Credit hereunder (whether or
not the applicable Issuing Lender is obligated to issue such Tranche A Letter of
Credit) is subject to the following conditions precedent:
A. On or before the date of issuance of such Tranche A Letter of
Credit, Administrative Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), an originally executed Request for Issuance
(or a facsimile copy thereof) in each case signed by a duly authorized Officer
of Borrowers, together with all other information specified in subsection
3.1B(i) and such other documents or information as the applicable Issuing Lender
may reasonably require in connection with the issuance of such Tranche A Letter
of Credit.
B. On the date of issuance of such Tranche A Letter of Credit, all
conditions precedent described in subsection 4.2B (other than subdivisions
(viii) and (ix) thereof) shall be satisfied to the same extent as if the
issuance of such Tranche A Letter of Credit were the making of a Loan and the
date of issuance of such Tranche A Letter of Credit were a Funding Date.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
Lenders to purchase participations therein, Company represents and warrants to
each Lender, on the date of this Agreement, on each Funding Date and on the date
of issuance of each Letter of Credit, that the following statements are true,
correct and complete:
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Each Loan Party is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as
specified in Schedule 5.1 annexed hereto. Subject to compliance with any
applicable provisions of the Bankruptcy Code, each Loan Party has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby. Each Loan Party is in compliance with its Organizational Documents and
all applicable orders of the Bankruptcy Court.
B. Qualification and Good Standing. Each Loan Party is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had and could not reasonably be expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only
in the businesses permitted to be engaged in pursuant to subsection 7.12.
D. Subsidiaries. All of the Subsidiaries of Company and their
jurisdictions of organization are identified in Schedule 5.1 annexed hereto, as
said Schedule 5.1 may be supplemented from time to time pursuant to the
provisions of subsection 6.1(xv). The Capital Stock of each of the Subsidiaries
of Company identified in Schedule 5.1 annexed hereto (as so supplemented) is
duly authorized, validly issued, fully paid and nonassessable and none of such
Capital Stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in Schedule 5.1 annexed hereto (as so supplemented) is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
organization set forth therein, has all requisite power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such power and authority has not
had and could not reasonably be expected to have a Material Adverse Effect.
Schedule 5.1 annexed hereto (as so supplemented) correctly sets forth the
ownership interest of Company and each of its Subsidiaries in each of the
Subsidiaries of Company identified therein.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents (i) have been duly authorized by all necessary
action on the part of each Loan Party that is a party thereto and (ii) have been
or by the Closing Date will be duly authorized by the Bankruptcy Court.
B. No Conflict. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries, the Organizational Documents
of Company or any of its Subsidiaries or any order, judgment or decree of any
court or other Government Authority binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation
(which Contractual Obligation is enforceable on a post-Petition Date basis) of
Company or any of its Subsidiaries or an applicable order of the Bankruptcy
Court, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Company or any of its Subsidiaries (other
than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for (x) such approvals
or consents which will be obtained on or before the Closing Date and disclosed
in writing to Lenders and (y) the entry of the Interim Borrowing Order or the
Final Borrowing Order.
C. Governmental Consents. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not require any Governmental Authorization, except for the entry of the
Interim Borrowing Order or the Final Borrowing Order and except for filings
expressly contemplated by the Loan Documents and those Governmental
Authorizations which have been obtained.
D. Binding Obligation. Each of the Loan Documents has been duly
executed and delivered by each Loan Party that is a party thereto and is the
legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except, in the case of
Subsidiary Guarantors, as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
E. Restrictions on Transfer. There are no restrictions on any
Borrower or any of its Subsidiaries which prohibit or otherwise restrict the
transfer of cash or other assets from one to another, other than prohibitions or
restrictions existing under or by reason of (i) this Agreement and the other
Loan Documents, (ii) applicable law (including the Bankruptcy Code and any
applicable orders of the Bankruptcy Court, including the Project Cash Collateral
Order), (iii) customary non-assignment provisions entered into in the ordinary
course of business and consistent with past practices, and (iv) any documents or
instruments governing the terms of any Indebtedness or other obligations secured
by Liens permitted by subsection 7.2A; provided that (x) such prohibitions or
restrictions apply only to the assets subject to such Liens, and (y) the
prohibitions or restrictions set forth in clauses (iii) or (iv) only apply to
the extent enforceable under the Bankruptcy Code and the applicable orders of
the Bankruptcy Court.
F. Pre-Petition Indebtedness. The Indebtedness and Contingent
Obligations constituting Prepetition Indebtedness (and all amounts owing in
respect thereof) as of the Petition Date are set forth in Schedule 7.1 annexed
hereto.
G. Chapter 11 Cases. The Chapter 11 Cases were commenced on the
Petition Date in accordance with applicable law and proper notice thereof and of
the hearing for the approval of each of the Interim Borrowing Order and Final
Borrowing Order has been given as identified in the respective Certificates of
Service filed with the Bankruptcy Court and, without limiting the foregoing, has
been given to third-party creditors to the extent required by applicable
law. Borrowers constitute all debtors and debtors-in-possession subject to
the Chapter 11 Cases.
5.3 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders' request, (i)
the audited consolidated financial statements of Company and its Subsidiaries
for the Fiscal Year ended December 31, 2000 and (ii) the unaudited consolidated
financial statements of Company and its Subsidiaries for the Fiscal Quarters
ended March 31, 2001, June 30, 2001 and September 30, 2001. All such statements
were prepared in conformity with GAAP and fairly present, in all material
respects, the financial position (on a consolidated and, where applicable,
consolidating basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and cash flows (on
a consolidated and, where applicable, consolidating basis) of the entities
described therein for each of the periods then ended, subject, in the case of
any such unaudited financial statements, to changes resulting from audit and
normal year-end adjustments. No Loan Party has, as of the Closing Date, any
Contingent Obligation, contingent liability or unusual long-term commitment that
is not reflected in the foregoing financial statements or the notes thereto and,
as of any Funding Date subsequent to the Closing Date, is not reflected in the
most recent financial statements delivered to Lenders pursuant to subsection 6.1
or the notes thereto (other than those liabilities reflected on the Schedules to
this Agreement) and that, in any such case, is material in relation to the
business, operations, properties, assets or financial condition of Company or
any of its Subsidiaries taken as a whole.
5.4 No Material Adverse Change; No Restricted Payments.
Since September 30, 2001, no event or change has occurred that has
resulted in or evidences, either in any case or in the aggregate, a Material
Adverse Effect, other than the commencement of the Chapter 11 Cases and as
disclosed prior to the Closing Date in public filings or in writings to Lenders
(including the successive downgrades by Moody's and other rating agencies of
Company's long term unsecured debt rating prior to the Closing Date). Neither
Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Payment or agreed to do so except (i) as permitted by subsection 7.5, and (ii)
as was permitted by subsection 7.5 of the Prepetition Credit Agreement.
5.5 Title to Properties; Liens; Real Property; Intellectual Property.
A. Title to Properties; Liens. Company and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective material properties and assets
reflected in the financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to subsection 6.1, in each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under subsection
7.7. Except as permitted by this Agreement, all such properties and assets are
free and clear of Liens.
B. Real Property. As of the Closing Date, Schedule 5.5B annexed
hereto contains a true, accurate and complete list of (i) all fee interests in
any Real Property Assets and (ii) all leases, subleases or assignments of leases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Property Asset, regardless of
whether a Loan Party is the landlord or tenant (whether directly or as an
assignee or successor in interest) under such lease, sublease or assignment.
Except as specified in Schedule 5.5B annexed hereto, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and effect
and no Borrower has knowledge of any material default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid and
binding obligation of each applicable Loan Party, enforceable against such Loan
Party in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles.
C. Intellectual Property. As of the Closing Date, Schedule 5.5C
annexed hereto contains a true, accurate and complete list of all material
Intellectual Property. Each of Company and its Subsidiaries owns or has the
right to use all material Intellectual Property used in the conduct of its
business, and none of such Intellectual Property conflicts with a right of any
other Person to the extent such conflict could reasonably be expect to result in
a Material Adverse Effect.
5.6 Litigation; Adverse Facts.
Except as set forth in Schedule 5.6 annexed hereto, there are no
Proceedings (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any court or other Government
Authority (including any Environmental Claims) that are pending or, to the
knowledge of any Borrower, threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate (together with all such Proceedings with
respect to substantially similar or related matters), would reasonably be
expected to result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or other Government Authority that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
5.7 Payment of Taxes.
Except to the extent permitted by subsection 6.3, all material tax
returns and reports of Company and its Subsidiaries required to be filed by any
of them have been timely filed, and all taxes shown on such tax returns to be
due and payable and all assessments, fees and other governmental charges upon
Company and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises that are due and payable have been paid when
due and payable. No Borrower knows of any proposed tax assessment against
Company or any of its Subsidiaries that is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 Performance of Agreements; Material Contracts.
A. Except as set forth on Schedule 5.8A annexed hereto, neither
Company nor any of its Subsidiaries is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any of its Contractual Obligations, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute such a default
(except to the extent the commencement of the Chapter 11 Cases constitutes such
a default), except where the consequences, direct or indirect, of such default
or defaults, if any, could not reasonably be expected to have a Material Adverse
Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. Schedule 5.8C contains a true, correct and complete list of all
the Material Contracts in effect on the Closing Date. Except as described on
Schedule 5.8C, all such Material Contracts are in full force and effect and no
defaults currently exist thereunder (other than defaults which do not give the
counterparty to such Material Contract the right to terminate such agreement on
a post-Petition Date basis).
5.9 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act
(except that Persons owning facilities which (1) are "qualifying small power
production facilities" within the meaning of PURPA, (2) use biomass as their
primary energy source and (3) have a net power production capacity in excess of
thirty megawatts, are subject to regulation under the Federal Power Act), the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation (other than the Bankruptcy Code) which
may limit its ability to incur Indebtedness or which may otherwise render all or
any portion of the Obligations unenforceable.
5.10 Securities Activities.
A. Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than
25% of the value of the assets (either of Company only or of Company and its
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 Employee Benefit Plans.
A. Company, each of its Subsidiaries and, with respect to Pension
Plans and Multiemployer Plans, each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan. Each Employee Benefit Plan that is intended to qualify
under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service to such effect and no
event has occurred since the date of such determination letter (other than the
enactment of legislation for which the remedial amendment period has not
expired) that would reasonably be expected to affect adversely such Plan's
qualification.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code or except as set forth in Schedule 5.11 annexed hereto or in the
financial statements delivered to Lenders pursuant to subsection 4.1 or 6.1
hereof, as applicable, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Company or any of its Subsidiaries.
D. As of the most recent valuation date for the Pension Plans, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA) but determined on the basis of the actuarial assumptions used for funding
purposes with respect to such Pension Plan, individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), does not exceed
$5,000,000.
E. As of the most recent valuation date for each Multiemployer Plan
for which the actuarial report (or an estimate provided pursuant to Section
4221(e) of ERISA) is reasonably available to Company, the potential withdrawal
liability of Company, its Subsidiaries and their respective ERISA Affiliates for
a complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 of ERISA), when aggregated with the potential liability for a
complete withdrawal from all other Multiemployer Plans for which such actuarial
report (or an estimate provided pursuant to Section 4221(e) of ERISA) is
reasonably available to Company, based on the information contained in such
reports, would not reasonably be expected to exceed $5,000,000.
F. Neither Company nor any Subsidiary has incurred or is reasonably
expected to incur any material liability pursuant to Title IV of ERISA with
respect to any employee benefit plan of an entity that was formerly an ERISA
Affiliate of Company or any of its Subsidiaries or with respect to any employee
benefit plan that was previously maintained by Company or any of its
Subsidiaries.
5.12 Certain Fees.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, and
each Borrower hereby indemnifies Lenders against, and agrees that it will hold
Lenders harmless from, any claim, demand or liability for any such broker's or
finder's fees alleged to have been incurred in connection herewith or therewith
and any expenses (including reasonable fees, expenses and disbursements of
counsel) arising in connection with any such claim, demand or liability.
5.13 Environmental Protection.
A. Except as set forth in Schedule 5.13 annexed hereto, neither
Company nor any of its Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to (a) any Environmental Law, (b)
any Environmental Claim, or (c) any Hazardous Materials Activity that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
B. Except as set forth in Schedule 5.13 annexed hereto, neither
Company nor any of its Subsidiaries has received any letter or request for
information under Section 104 of CERCLA or any comparable state law regarding
any condition, occurrence or activity that could reasonably be expected to form
the basis of an Environmental Claim against Company or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
C. Except as set forth in Schedule 5.13 annexed hereto, there are
and, to Company's knowledge, have been no conditions, occurrences, or Hazardous
Materials Activities that could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or impose liability on any Lender or Agent;
D. Except as set forth in Schedule 5.13 annexed hereto, (i) neither
Company nor any of its Subsidiaries nor, to Company's knowledge, any predecessor
of Company or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous Materials at
any Facility, (ii) none of Company's or any of its Subsidiaries' Facilities
constitute facilities for the treatment, storage or disposal of Hazardous
Materials under RCRA or any state equivalent, and (iii) none of Company's or any
of its Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste in violation of RCRA or any
state equivalent that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or impose liability on any Lender or
Agent; and
E. Compliance with all current requirements pursuant to or under
Environmental Laws would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect or impose liability on any Lender or
Agent.
5.14 Employee Matters.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 Matters Relating to Collateral.
A. Creation, Perfection and Priority of Liens. The provisions of the
Collateral Documents, the Interim Borrowing Order and, upon its effectiveness,
the Final Borrowing Order are effective to create in favor of Administrative
Agent for the benefit of the Lenders a legal, valid, perfected, nonavoidable and
enforceable security interest in all right, title and interest of the Loan
Parties in the Collateral described therein (having the priority provided for
herein and in the Interim Borrowing Order and, upon its effectiveness, the Final
Borrowing Order).
(i) Pursuant to Section 364(c)(2) of the Bankruptcy Code and the
Interim Borrowing Order and, upon its effectiveness, the Final Borrowing
Order, the Obligations will be secured by a first priority perfected senior
Lien on all Collateral which is not subject to a valid, perfected,
non-voidable and enforceable Lien existing as of the Petition Date, subject
only to the Carve-Outs.
(ii) Pursuant to Section 364(c)(3) of the Bankruptcy Code and the
Interim Borrowing Order and, upon its effectiveness, the Final Borrowing
Order, the Obligations will be secured by a perfected Lien on the
Collateral, subject and junior to (a) any valid, perfected, non-voidable
and enforceable Liens (other than Prepetition Liens) existing as of the
Petition Date and (b) the Carve-Outs.
(iii) Pursuant to Section 364(d) of the Bankruptcy Code and the
Interim Borrowing Order and, upon its effectiveness, the Final Borrowing
Order, the Obligations at all times will be secured by a first priority
perfected senior priming Lien on the Prepetition Collateral, but having
priority over only the Prepetition Liens, subject only to the Carve-Outs.
The execution and delivery of the Collateral Documents by Subsidiary
Guarantors, together with (x) the actions taken on or prior to the date hereof
pursuant to subsections 4.1J, 6.8, 6.9 and 6.14 and (y) the delivery to
Administrative Agent of any Pledged Collateral of the Subsidiary Guarantors not
delivered to Administrative Agent at the time of execution and delivery of the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create in favor of Administrative Agent, for the
benefit of Lenders, a Lien on all of the Collateral of the Subsidiary Guarantors
(which Lien has priority over any other Lien on such Collateral, subject to
Permitted Encumbrances and Liens permitted under subsection 7.2A), and all
filings and other actions necessary or desirable to perfect and maintain the
perfection and such priority of such Liens have been duly made or taken and
remain in full force and effect, other than the filing of any UCC financing
statements delivered to Administrative Agent for filing (but not yet filed) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
Notwithstanding anything in this Section 5.15A to the contrary, in
the event that Covanta Power Pacific, Inc. or any of its direct or indirect
Subsidiaries file a petition for relief under the Bankruptcy Code, the Liens
granted to Administrative Agent for the benefit of the Lenders under the
Collateral Documents, the Interim Borrowing Order and the Final Borrowing Order
shall be junior to Liens in favor of the lenders under the senior credit
facilities of Covanta Power Pacific, Inc. outstanding on the date hereof
(entered into with Bayerische Hypo-Vereinsbank AG, as agent, and such lenders),
and such Liens granted to Administrative Agent shall be subject to the prior
payment in full of such credit facilities.
B. Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any Government Authority is required
for either (i) the pledge or grant by any Loan Party of the Liens purported to
be created in favor of Administrative Agent pursuant to any of the Collateral
Documents or (ii) the exercise by Administrative Agent of any rights or remedies
in respect of any Collateral (whether specifically granted or created pursuant
to any of the Collateral Documents or created or provided for by applicable
law), except (a) for filings or recordings contemplated by subsection 5.15A, (b)
as may be required, in connection with the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale of securities, and
(c) authorizations and approvals in respect of the exercise of rights or
remedies as to any collateral of any Loan Party which is subject to regulation
under the Federal Power Act pursuant to Section 210(e)(2) of PURPA.
C. Margin Regulations. The pledge of the Pledged Collateral pursuant
to the Collateral Documents does not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
D. Information Regarding Collateral. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.16 Disclosure.
No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement, except to the extent such document, certificate or written statement
has been superseded or corrected prior to the date hereof, contains any untrue
statement of a material fact or omits to state a material fact (known to
Borrowers, in the case of any document not furnished by Company or any of its
Subsidiaries) necessary in order to make the statements contained herein or
therein not misleading in any material respect in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials (including the Monthly Budget and any 13-Week Cash
Forecast) are based upon good faith estimates and assumptions believed by each
Borrower to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are subject to significant business,
economic, regulatory and competitive uncertainties and contingencies, and,
accordingly, no assurances are given and no representations or warranties are
made by Company or any of its Subsidiaries that any of the estimates and
assumptions are correct, that the projections will be achieved or that the
forward looking statements expressed in such information will correspond to
actual results. There are no facts known (or which should upon the reasonable
exercise of diligence be known) to any Borrower (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
5.17 Prepetition Indebtedness.
The Indebtedness and Contingent Obligations constituting Prepetition
Indebtedness (and all amounts owing in respect thereof) of Borrowers as of the
Petition Date are set forth on Schedule 7.1 annexed hereto. The Prepetition
Obligations are secured by valid and enforceable first priority liens and
security interests granted by the Prepetition Loan Parties to the Prepetition
Agent, for the ratable benefit of the Prepetition Lenders, upon all of the
Prepetition Collateral, subject only to Permitted Encumbrances. The Prepetition
Obligations and the liens and security interests of the Prepetition Agent, for
the ratable benefit of the Prepetition Lenders, in the Prepetition Collateral
are not subject to avoidance, defense, objection, action, counterclaim, setoff
or subordination of any kind whatsoever. The Prepetition Obligations constitute
legal, valid and binding obligations of each Loan, enforceable in accordance
with the terms of the Prepetition Credit Documents and pursuant to applicable
law, except as limited by general equitable principles (regardless whether such
enforceability is considered in a proceeding at law or in equity).
5.18 Cash Management System.
The summary of Borrowers' Cash Management System attached hereto as
Schedule 4.1Q (and contained in the First Day Orders) is accurate and complete
in all material respects as of the Closing Date and does not omit to state any
material fact necessary to make the statements set forth therein not misleading.
No Borrower owns any Deposit Account which is not described in Schedule 4.1Q.
There has been no change to the Cash Management System since the Closing Date
except such changes as have been disclosed to Lenders in writing and approved by
Administrative Agent.
5.19 Orders.
On the date of the making of the initial Loans hereunder, the Interim
Borrowing Order will have been entered and shall be in full force and effect and
unstayed by the Bankruptcy Court or any other court of competent jurisdiction.
On the date of the making of any Loan, the Interim Borrowing Order or the Final
Borrowing Order, as the case may be, shall be in full force and effect and
unstayed by the Bankruptcy Court or any other court of competent jurisdiction.
Upon the Termination Date or other maturity (whether by acceleration or
otherwise) of any of the Obligations of Borrowers hereunder and under the other
Loan Documents, Lenders shall be entitled to immediate payment of such
Obligations, and to enforce the remedies provided for hereunder, without further
application to or order by the Bankruptcy Court subject to the notice procedures
set forth in the penultimate paragraph of Section 8.
5.20 Matters Relating to Loan Parties.
A. Loan Parties. Neither Company nor any of its Subsidiaries owns any
interest in any Domestic Subsidiary which is neither a Borrower nor a Subsidiary
Guarantor (other than Excluded Subsidiaries).
B. Shell Subsidiaries. Each Shell Subsidiary has no material assets
and is not engaged in any business.
C. Domestic Subsidiary Assets. Each Domestic Subsidiary which is a
Loan Party has granted a Lien in favor of Administrative Agent on substantially
all of its property pursuant to the Collateral Documents, the Interim Borrowing
Order or the Final Borrowing Order, except for such Domestic Subsidiaries (other
than Borrowers) (i) which have granted a Lien permitted under subsection 7.2A on
all or substantially all of such property to secure Indebtedness permitted under
subsection 7.1, or (ii) with respect to which the grant of such a Lien would
constitute a material violation of (a) a valid and enforceable Contractual
Obligation in favor of or for the benefit of a Person other than Company or any
of its Subsidiaries and their respective Affiliates for which the required
consents have not been obtained or (b) applicable law affecting such Loan Party.
D. Domestic Subsidiary Capital Stock. The Capital Stock of each
Domestic Subsidiary which is directly owned by any Loan Party has been pledged
to Administrative Agent pursuant to the Collateral Documents, the Interim
Borrowing Order or the Final Borrowing Order, except for the Capital Stock of
those Domestic Subsidiaries (other than Borrowers) (i) which is subject to a
Lien permitted under subsection 7.2A securing Indebtedness permitted under
subsection 7.1, or (ii) the pledge of which would constitute a material
violation of (a) a valid and enforceable Contractual Obligation in favor of or
for the benefit of a Person other than Company or any of its Subsidiaries and
their respective Affiliates for which the required consents have not been
obtained or (b) applicable law affecting such Loan Party or such Domestic
Subsidiary.
E. Foreign Subsidiary Capital Stock. 65% of the Capital Stock of each
Foreign Subsidiary which is a Material Subsidiary and is directly owned by Loan
Parties (or such lesser percentage as is owned by Loan Parties) has been pledged
to Administrative Agent pursuant to the Collateral Documents except for the
Capital Stock of those Foreign Subsidiaries the pledge of which would constitute
a material violation of (a) a valid and enforceable Contractual Obligation in
favor of or for the benefit of a Person other than Company or any of its
Subsidiaries and their respective Affiliates for which the required consents
have not been obtained or (b) applicable law affecting such Loan Party or such
Foreign Subsidiary.
Notwithstanding the foregoing, the failure to xxxxx x Xxxx after the
Closing Date on assets of Company and its Subsidiaries or to pledge Capital
Stock of a Subsidiary shall not constitute a breach of the representations and
warranties contained in subsections 5.20C, 5.20D and 5.20E above on any date
after the Closing Date if, at the time of the making of such representation or
warranty on any such date, Borrowers are not otherwise in default of their
obligations under subsection 6.8 and have commenced and are diligently pursuing
appropriate actions to create such Lien or pledge to the extent such Lien or
pledge is required under such subsection; provided, however, that nothing in
this sentence shall be construed as waiving any of the conditions contained in
subsection 4.1; and provided further, that if on any Funding Date or any date of
issuance of a Letter of Credit, Borrowers are relying on this paragraph in
certifying that the representations and warranties in this Agreement are true,
correct and complete, then Borrowers shall so specify in the applicable
Officer's Certificate, Notice of Borrowing, Request for Issuance of Letter of
Credit or Notice of Conversion/Continuation delivered pursuant to subsection
4.2A, 4.3A or 2.2D, as the case may be, and shall provide a description in
reasonable detail of the circumstances on which such reliance is based.
Section 6. COMPANY'S AFFIRMATIVE COVENANTS
6.1 Financial Statements and Other Reports.
Borrowers will maintain, and cause each of their respective
Subsidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Borrowers will deliver to Administrative
Agent (and, promptly after receipt thereof, Administrative Agent will deliver a
copy to each Lender):
(i) Bi-weekly Operating and Variance Report and Monthly Compliance
Report: as soon as available and in any event no later than the 5th and the
20th day of each month commencing with April 20, 2002, for the half-month
most recently ended (from the first through the 15th or the 16th through
the last day of each month), a report in form satisfactory to
Administrative Agent (a) reflecting the actual cash receipts and
disbursements of Company and its Subsidiaries for each week ending in the
preceding half month period (and cumulatively for the elapsed portion of
the Budget Period) with respect to each line item described in the 13-Week
Cash Forecast and the percentage and dollar variance of such amounts from
the projected amounts therefor set forth in the 13-Week Cash Forecast for
each such week, (b) containing, in the case of reports delivered with
respect to a month's end, a Project-by-Project update on operational and
legal developments which could reasonably be expected to be materially
adverse in relation to such Project, (c) demonstrating in reasonable detail
compliance during each such week with the restrictions contained in
subsection 7.6 (it being understood that whether Company and its
Subsidiaries are in compliance with subsection 7.6 at any month's end shall
be determined, for any week during which such month's end occurs, on the
basis of cash expenditures made through the end of such week), and (d)
accompanied by an Officer's Certificate from the chief financial officer of
Company certifying (1) that such report accurately presents, in all
material respects, cash receipts and cash expenditures of Company and its
Subsidiaries for the periods indicated and (2) that the signer has reviewed
the terms subsection 7.6 and the transactions and condition of Company and
its Subsidiaries during the period covered by such report in reasonable
detail and that such review has not disclosed the existence during or at
the end of such period, and that the signer does not have knowledge of the
existence as at the date of such Officer's Certificate, of any condition or
event that constituted or constitutes a breach of subsection 7.6;
(ii) Events of Default, etc.: promptly upon any Officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event
of Default, (b) that any Person has given any notice to Company or any of
its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2,
(c) of any condition or event that would be required to be disclosed in a
current report filed by Company with the Securities and Exchange Commission
on Form 8-K if Company were required to file such reports under the
Exchange Act, or (d) of the occurrence of any event or change that has
caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect, an Officer's Certificate specifying the nature and period
of existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes to take with
respect thereto;
(iii) Quarterly Financials: as soon as available and in any event
within 60 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, the consolidated balance sheet of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statement of income of Company and its Subsidiaries for such
Fiscal Quarter and the related consolidated statements of stockholders'
equity and cash flows of Company and its Subsidiaries for the period from
the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all in
reasonable detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial condition
of Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, subject
to changes resulting from audit and normal year-end adjustments; provided,
however, that so long as Company files a quarterly report on Form 10Q with
the Securities and Exchange Commission for any Fiscal Quarter, Borrowers
shall be required to deliver a copy of such quarterly report in lieu of the
financial statements described in this subsection 6.1(iii);
(iv) Year-End Financials: as soon as available and in any event within
120 days after the end of each Fiscal Year, (a) the consolidated balance
sheet of Company and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, and (b) an
audit report thereon of Deloitte & Touche LLP or other independent
certified public accountants of recognized national standing selected by
Company and satisfactory to Administrative Agent, which report shall state
that in the opinion of such certified public accountants such consolidated
financial statements fairly present, in all material respects, the
consolidated financial position of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated in conformity with GAAP and that the audit by
such accountants in connection with such consolidated financial statements
has been made in accordance with auditing standards generally accepted in
the United States of America; provided, however, that so long as Company
files an annual report on Form 10K with the Securities Exchange Commission,
Borrowers shall be required to deliver a copy of such annual report in lieu
of the financial statements described in clause (a);
(v) Compliance Certificates: together with each delivery of financial
statements of Company and its Subsidiaries pursuant to subdivisions (iii)
and (iv) above, (a) an Officer's Certificate of Company stating that the
signers have reviewed the terms of this Agreement and have made, or caused
to be made under their supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the
accounting period covered by such financial statements and that such review
has not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as at
the date of such Officer's Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default, or, if any
such condition or event existed or exists, specifying the nature and period
of existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; and (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the restrictions contained in Section 7,
in each case to the extent compliance with such restrictions is required to
be tested at the end of the applicable accounting period;
(vi) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (iii) or (iv) of this subsection 6.1 will differ
in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subdivision (iii) or
(iv) of this subsection 6.1 following such change, consolidated financial
statements of Company and its Subsidiaries for (y) the current Fiscal Year
to the effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in each
case prepared on a pro forma basis as if such change had been in effect
during such periods, and (b) together with each delivery of financial
statements pursuant to subdivision (iii) or (iv) of this subsection 6.1
following such change, if required pursuant to subsection 1.2, a written
statement of the chief accounting officer or chief financial officer of
Company setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements had
been prepared without giving effect to such change;
(vii) [Intentionally omitted.]
(viii) Accountants' Reports: promptly upon request of an Agent (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management in
connection with their annual audit;
(ix) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8 or
a similar form) and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally by
Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
Company obtaining knowledge of (1) the institution of, or non-frivolous
threat of, any Proceeding against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries not
previously disclosed in writing by Company to Lenders or (2) any material
development in any Proceeding that, in the case of both clauses (1) and
(2):
(1) if adversely determined, has a reasonable possibility after
giving effect to the coverage and policy limits of insurance policies
issued to Company and its Subsidiaries of giving rise to a Material
Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) within twenty days after the end of each
Fiscal Quarter, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, an Borrower equal to or
greater than $1,000,000, and promptly after request by Administrative Agent
such other information as may be reasonably requested by Administrative
Agent to enable Administrative Agent and its counsel to evaluate any of
such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of
or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened in
writing by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) all
notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (b) copies of such other documents or governmental reports
or filings relating to any Employee Benefit Plan as Administrative Agent
shall reasonably request;
(xiii) Insurance: as soon as practicable after any material change in
insurance coverage maintained by Company and its Subsidiaries notice
thereof to Administrative Agent specifying the changes and reasons
therefor;
(xiv) Governing Body: with reasonable promptness, written notice of
any change in the Governing Body of Company;
(xv) New Subsidiaries: promptly upon any Person becoming a Subsidiary
of Company, a written notice setting forth with respect to such Person (a)
the date on which such Person became a Subsidiary of Company and (b) all of
the data required to be set forth in Schedule 5.1 annexed hereto with
respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement Schedule 5.1 annexed hereto
for all purposes of this Agreement);
(xvi) Material Contracts: promptly, and in any event within 10
Business Days after any Material Contract of Company or any of its
Subsidiaries is terminated or amended in a manner that is materially
adverse to Company or such Subsidiary, as the case may be, or any new
Material Contract is entered into, a written statement describing such
event with copies of such material amendments or new contracts, and an
explanation of any actions being taken with respect thereto;
(xvii) Schedule 7.1: as soon as practicable and in any event no later
than 30 days after the Closing Date, a schedule in form reasonably
satisfactory to Agents setting forth all Indebtedness and Contingent
Obligations constituting Prepetition Indebtedness, which Schedule shall be
Schedule 7.1 for all purposes hereunder;
(xviii) Bankruptcy Information: promptly after the same is available,
Borrowers shall furnish or cause to be furnished to counsel for
Administrative Agent all pleadings, motions, applications, judicial
information, financial information and other documents filed by or on
behalf of Borrowers with the Bankruptcy Court or the United States Trustee
in the Chapter 11 Cases or distributed by or on behalf of Borrowers to any
official committee appointed in the Chapter 11 Cases and, without limiting
the generality of the foregoing, Borrowers shall promptly deliver to, and
discuss with, Administrative Agent and its counsel any and all material
information and developments in connection with any proposed Asset Sale or
Change in Control, including, without limitation, any letters of intent,
commitment letters or engagement letters received by any Borrower, and any
other event or condition which is reasonably likely to have a material
effect on the Borrowers or the Chapter 11 Cases, including, without
limitation, the progress of any disclosure statement or any proposed
Chapter 11 plan of reorganization;
(xix) Monthly Budget and 13-Week Cash Forecast Updates: as soon as
practicable and in any event no later than the tenth Business Day of each
month commencing with the tenth Business Day of May 2002 (or June 2002, if
the date of entry of the Final Borrowing Order is in May 2002), (a) a
consolidated cash forecast for Company and its Subsidiaries, in form
consistent with the Monthly Budget delivered to Agents pursuant to
subsection 4.1F hereof (with line items for projected cash receipts and
cash expenditures corresponding to those in such Monthly Budget) and in
substance satisfactory to Agents (unless within 3 Business Days after
receipt by Lenders of such cash forecast Requisite Lenders shall have
notified Agents of their objection thereto, in which event any cash
forecast submitted by Borrowers in lieu thereof shall be required to be
satisfactory to Requisite Lenders), with monthly projections for the
following month and each other month remaining in the Budget Period,
together with an explanation of the material assumptions on which such
projections are based, and (b) a consolidated cash forecast for Company and
its Subsidiaries, in form consistent with the 13-Week Cash Forecast
delivered to Agents pursuant to subsection 4.1F hereof (with line items for
projected cash receipts and cash expenditures corresponding to those in
such 13-Week Cash Forecast) and in substance consistent with the Monthly
Budget (as modified pursuant to the preceding clause (a)), with weekly
projections for the 13-week period commencing with the week beginning most
recently after the delivery of such forecast;
(xx) Projected Financial Statements: as soon as practicable and in any
event no later than July 31, 2002, projected financial statements for
Company and its Subsidiaries for Fiscal Year 2002 and the first Fiscal
Quarter of 2003, such projected financial statements to (a) be prepared on
a consolidated and consolidating basis in accordance with GAAP, (b) be in
form and substance reasonably satisfactory to Agents (unless within 3
Business Days after receipt by Lenders of such projected financial
statements Requisite Lenders shall have notified Agents of their objection
thereto, in which event any projected financial statements submitted by
Borrowers in lieu thereof shall be required to be satisfactory to Requisite
Lenders), and (c) contain projections of cash flows for each such period
and such other financial information and projections for such periods as
Agents may reasonably request;
(xxi) Minimum Cumulative Consolidated Operating Income Schedule: as
soon as practicable and in any event no later than 45 days after the date
of entry by the Bankruptcy Court of the Final Borrowing Order, a schedule
(the "Minimum Cumulative Consolidated Operating Income Schedule") setting
forth, with respect to each Fiscal Quarter commencing with the Fiscal
Quarter ending June 30, 2002 and ending with the Fiscal Quarter ending
March 31, 2003, Company's proposed minimum cumulative amount, for purposes
of the covenant in subsection 7.6B, of Consolidated Operating Income for
the period commencing on March 31, 2002 and ending on the last day of such
Fiscal Quarter; provided that no such schedule shall be deemed the Minimum
Cumulative Consolidated Operating Income Schedule unless Agents and
Requisite Lenders consent in writing thereto;
(xxii) Exit Plan: as soon as practicable and in any event no later
than the date that is nine months after the Closing Date, a plan of
Borrowers for exiting the Chapter 11 Cases, in form and substance
satisfactory to Agents and Requisite Lenders; and
(xxiii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by any Agent or Requisite
Lenders (or by any Lender so long as such request is made through an Agent
(and Agents shall be required to request from Borrowers any such
information and data reasonably requested by a Lender)).
6.2 Existence, etc.
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence and all rights and franchises material to its business;
provided, however that neither Company nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the management or Governing
Body of Company or such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of the business of Company or such
Subsidiary, as the case may be, and the loss thereof could not reasonably be
expected to have a Material Adverse Effect.
6.3 Payment of Taxes and Claims; Tax.
A. Except as prohibited or excused by the Borrowing Orders, this
Agreement, the Bankruptcy Code or an applicable order of the Bankruptcy Court,
or by reason of the commencement of the Chapter 11 Cases, Company will, and will
cause each of its Subsidiaries to, pay all taxes, assessments and other
governmental charges imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any material
penalty accrues thereon, and all claims (including claims for labor, services,
materials and supplies) for material sums that have become due and payable and
that by law have or may become a Lien upon any of its properties or assets,
prior to the time when any penalty or fine shall be incurred with respect
thereto; provided that no such charge or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (ii) in the case of a charge or claim which has or may become
a Lien against any of the Collateral, such proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such charge or claim.
B. Borrowers will not file or consent to the filing of any
consolidated income tax return with any Person (other than Company or any of its
Subsidiaries).
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/
Condemnation Proceeds.
A. Maintenance of Properties. Company will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof, except that Company and
its Subsidiaries shall not be required to perform the foregoing obligations (i)
with respect to Subsidiaries or assets to which Persons other than Company and
its Subsidiaries have recourse under Limited Recourse Debt owed to such Persons
or (ii) to the extent that failure to perform such obligations would not
reasonably be expected to have a Material Adverse Effect.
B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained (i) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (ii) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as are at all times
satisfactory to Administrative Agent in its commercially reasonable judgment.
Unless prohibited by contractual or other legal requirement, such policy of
insurance shall (a) name Administrative Agent for the benefit of Lenders as an
additional insured thereunder as its interests may appear and (b) in the case of
each business interruption and casualty insurance policy, contain a loss payable
clause or endorsement, satisfactory in form and substance to Administrative
Agent, that names Administrative Agent for the benefit of Lenders as the loss
payee thereunder for any covered loss in excess of $1,000,000 and provides for
at least 30 days prior written notice to Administrative Agent of any
modification or cancellation of such policy. As soon as practicable after the
Closing Date, Company shall deliver to Administrative Agent a certificate from
Borrowers' insurance broker(s) or other evidence satisfactory to it that all
insurance required to be maintained pursuant to this subsection 6.4 is in full
force and effect and that Administrative Agent on behalf of Lenders has been
named as additional insured and/or loss payee thereunder to the extent required
under this subsection 6.4.
C. Application of Net Insurance/Condemnation Proceeds.
(i) Business Interruption Insurance. Upon receipt by Company or any of
its Subsidiaries of any business interruption insurance proceeds
constituting Net Insurance/Condemnation Proceeds, (a) so long as no Event
of Default shall have occurred and be continuing, Company or such
Subsidiary may retain and apply such Net Insurance/Condemnation Proceeds
for working capital purposes or any other purposes not prohibited under
this Agreement, and in accordance with the Monthly Budget, and (b) if an
Event of Default shall have occurred and be continuing, Company shall apply
an amount equal to such Net Insurance/Condemnation Proceeds as provided in
subsection 2.4A.
(ii) Net Insurance/Condemnation Proceeds Received by Company. Upon
receipt by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing, Company shall, or shall cause one or
more of its Subsidiaries to, promptly and diligently apply such Net
Insurance/Condemnation Proceeds to pay or reimburse the costs of repairing,
restoring or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received or, to the extent not so
applied, as provided in subsection 2.4A, and (b) if an Event of Default or
Potential Event of Default shall have occurred and be continuing (unless
Company is otherwise required to use funds by law or contract), Company
shall apply an amount equal to such Net Insurance/Condemnation Proceeds as
provided in subsection 2.4A.
(iii) Net Insurance/Condemnation Proceeds Received by Administrative
Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net Insurance/Condemnation
Proceeds (if it had received them directly) Administrative Agent shall, and
Company hereby authorizes Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds as provided in subsection 2.4A, and (b) to
the extent the foregoing clause (a) does not apply Administrative Agent
shall deliver such Net Insurance/Condemnation Proceeds to Company, and
Company shall, or shall cause one or more of its Subsidiaries to, promptly
apply such Net Insurance/Condemnation Proceeds to the costs of repairing,
restoring, or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received; provided, however that if at
any time Administrative Agent reasonably determines (A) that Company or
such Subsidiary is not proceeding diligently with such repair, restoration
or replacement or that such repair, restoration or replacement cannot be
completed within 180 days after the receipt by Administrative Agent of such
Net Insurance/Condemnation Proceeds, Administrative Agent shall, and
Company hereby authorizes Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds as provided in subsection 2.4A.
Notwithstanding the foregoing, no Net Insurance/Condemnation Proceeds
shall be required to be applied as provided in subsection 2.4A to the extent
such application would constitute a material violation of (1) a valid
Contractual Obligation (in effect on the Closing Date) which is enforceable
against Borrowers on a post-Petition Date basis in favor of or for the benefit
of a Person other than Company or any of its Subsidiaries or their respective
Affiliates for which the required consents have not been obtained or (2)
applicable law affecting Company and its Subsidiaries.
6.5 Inspection Rights; Lender Meeting.
Borrowers shall, and shall cause each of their respective
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of such Borrower or of any of its
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested;
provided that, at any time after the occurrence and during the continuance of an
Event of Default, Borrowers shall, and shall cause each of their respective
Subsidiaries to, permit such additional audits as Administrative Agent or
Requisite Lenders may deem necessary or advisable, upon reasonable notice and at
such reasonable times during normal business hours as may be reasonably
requested. Without in any way limiting the foregoing, Company will, upon the
request of Administrative Agent or Requisite Lenders, participate in meetings of
Administrative Agent and Lenders during the pendency of the Chapter 11 Cases at
such location and times (and from time to time) as may be agreed to by Company
and Administrative Agent.
6.6 Compliance with Laws, etc.
Borrowers shall comply, and shall cause each of their Subsidiaries to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any Government Authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to cause, individually or
in the aggregate, a Material Adverse Effect.
6.7 Environmental Matters.
A. Environmental Disclosure. Company will deliver to Administrative
Agent:
(i) Environmental Audits and Reports. As soon as practicable following
receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character (excluding writings which are
protected by attorney-client privilege or the work-product doctrine or
confidential self-evaluative writings), whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant
environmental matters at any Facility that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect or impose liability on any Lender or Agent or with respect to any
Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or impose
liability on any Lender or Agent;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon
the occurrence thereof, written notice describing in reasonable detail (a)
any Release required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws
that could reasonably be expected to have a Material Adverse Effect or
impose liability on any Lender or Agent, (b) any remedial action taken by
Company or any other Person in response to (1) any Hazardous Materials
Activities the existence of which could reasonably be expected to result in
one or more Environmental Claims having, individually or in the aggregate,
a Material Adverse Effect or imposing liability on any Lender or Agent, or
(2) any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or impose
liability on any Lender or Agent;
(iii) Written Communications Regarding Environmental Claims, Releases,
Etc. As soon as practicable following the sending or receipt thereof by
Company or any of its Subsidiaries, a copy of any and all written
communications (excluding writings which are protected by attorney-client
privilege or the work-product doctrine or confidential self-evaluative
writings), with respect to (a) the commencement or the threat to commence a
proceeding regarding any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect or impose liability on any Lender or Agent, (b) any Release required
to be reported to any federal, state or local governmental or regulatory
agency that could reasonably be expected to have a Material Adverse Effect
or impose liability on any Lender or Agent, and (c) any request for
information from any governmental agency that suggests such agency is
investigating whether Company or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity that could reasonably be
expected to have a Material Adverse Effect or impose liability on any
Lender or Agent; and
(iv) Notice of Certain Proposed Actions Having Environmental Impact.
Prompt written notice describing in reasonable detail (a) any proposed
acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to (1) expose Company or any
of its Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or impose liability on any Lender or Agent or (2)
affect the ability of Company or any of its Subsidiaries to maintain in
full force and effect all Governmental Authorizations required under any
Environmental Laws for their respective operations except to the extent the
failure to maintain such Governmental Authorizations could not reasonably
be expected to have a Material Adverse Effect or impose liability on any
Lender or Agent and (b) any proposed action to be taken by Company or any
of its Subsidiaries to commence manufacturing or other industrial
operations or to modify current operations in a manner that could
reasonably be expected to subject Company or any of its Subsidiaries to any
additional obligations or requirements under any Environmental Laws that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or impose liability on any Lender or Agent.
(v) Certain Communications. With respect to documents which would have
been required to be provided to Administrative Agent pursuant to paragraph
(i) or (iii) but for the parenthetical in those paragraphs, Company shall
promptly upon receiving such documents provide a list identifying generally
the documents not disclosed and summarizing the information contained in
such documents to the extent consistent with not waiving any privilege with
respect thereto. If the privilege prevents Company from summarizing the
information contained in such documents Company (a) shall nevertheless
advise Administrative Agent that a matter, the nature of which cannot be
disclosed without waiving the applicable privilege, exists with respect to
a specified Facility or Environmental Claim that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect and (b) shall provide such other information to Administrative
Agent, consistent with not waving the privilege, that Administrative Agent
may reasonably request.
B. Company's Actions Regarding Environmental Claims and Violations of
Environmental Laws. Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by Company or its Subsidiaries that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (except if Company and its Subsidiaries do not have standing to
contest or respond to such Environmental Claim); provided, however, that Company
may, without breaching the requirements of this subsection 6.7B, contest an
alleged violation of Environmental Laws or an Environmental Claim in good faith
by appropriate proceedings promptly instituted and diligently conducted so long
as during such contest the failure to cure such violation or to respond to such
Environmental Claim or discharge the obligations thereunder could not reasonably
be expected to result in a Material Adverse Effect.
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents After the Closing Date.
A. Execution of Subsidiary Guaranty and Personal Property Collateral
Documents. In the event that any Domestic Subsidiary of Company existing on the
Closing Date ceases to be an Excluded Subsidiary, Company will promptly notify
Administrative Agent of that fact and cause such Domestic Subsidiary promptly
(and in any event no later than 30 days after it ceases to be an Excluded
Subsidiary) to execute and deliver to Administrative Agent a counterpart of the
Subsidiary Guaranty and Security Agreement and to take all such further actions
and execute all such further documents and instruments (including actions,
documents and instruments comparable to those described in subsection 4.1J) as
may be necessary or, in the opinion of Administrative Agent, desirable to create
in favor of Administrative Agent, for the benefit of Lenders, a valid and
perfected first priority security interest in all of the personal and mixed
property assets of such Domestic Subsidiary described in the applicable forms of
Collateral Documents, subject to any Liens in existence on the date such
Domestic Subsidiary ceases to be an Excluded Subsidiary to the extent permitted
under subsection 7.2A, provided that at the request of Company in connection
with sales of assets permitted under subsection 7.7, Administrative Agent shall
(without need for any further consent from any Lender or Lenders) release any
Liens on a Domestic Subsidiary's assets and/or release a Domestic Subsidiary
from the Subsidiary Guaranty or, in the case of a Person that becomes a Domestic
Subsidiary of Company in connection with such financing or investment permitted
hereunder, waive the requirement that such Domestic Subsidiary execute and
deliver to Administrative Agent a counterpart of the Subsidiary Guaranty and
Security Agreement, in each case solely to the extent required by the terms of
any such financings, investments or sales permitted under the foregoing
subsections of this Agreement; provided, however, that no Domestic Subsidiary
which meets the criteria set forth in subsections 5.20C(i) and 5.20C(ii) shall
be required to enter into the Security Agreement or to grant Liens on its
property pursuant to this subsection.
B. Subsidiary Organizational Documents, Legal Opinions, Etc. Company
shall deliver to Administrative Agent, together with the relevant Loan
Documents, (i) certified copies of Organizational Documents of each Domestic
Subsidiary which is becoming a Loan Party pursuant to subsection 6.8A or 6.8E,
together with a good standing certificate from the Secretary of State of the
jurisdiction of such Subsidiary's organization and each other state in which
such Person is qualified to do business and, to the extent generally available,
a certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each of such
jurisdictions, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a certificate executed by the secretary or similar
officer of such Subsidiary as to (a) the fact that the attached resolutions of
the Governing Body of such Subsidiary approving and authorizing the execution,
delivery and performance of such Loan Documents are in full force and effect and
have not been modified or amended and (b) the incumbency and signatures of the
officers of such Subsidiary executing such Loan Documents, and (iii) a favorable
opinion of counsel to such Subsidiary, in form and substance satisfactory to
Administrative Agent and its counsel, as to (a) the due organization and good
standing of such Subsidiary, (b) the due authorization, execution and delivery
by such Subsidiary of such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary and (d) such other matters (including matters
relating to the creation and perfection of Liens in any Collateral pursuant to
such Loan Documents) as Administrative Agent may reasonably request, all of the
foregoing to be satisfactory in form and substance to Administrative Agent and
its counsel.
C. Foreign Pledge Agreements. As soon as practicable (but not more
than 90 days, unless rendered impracticable by events or by action or inaction
of foreign Governmental Authorities in each case beyond the control of Borrowers
(as determined in the reasonable judgment of Administrative Agent)) after the
Closing Date (to the extent not completed on or prior to the Closing Date),
Borrowers shall cause foreign pledge agreements to be executed and delivered to
Administrative Agent with respect to 65% of the Capital Stock of all Foreign
Subsidiaries which are Material Subsidiaries and are directly owned by any
Borrower or Subsidiary Guarantor (other than to the extent a pledge of such
Capital Stock under the Collateral Documents would constitute a material
violation of (1) a valid Contractual Obligation in favor of or for the benefit
of a Person other than Company or any of its Subsidiaries which is enforceable
against the relevant Borrower or Subsidiary Guarantor on a post-Petition Date
basis and for which the required consents have not been obtained or (2)
applicable law affecting such Borrower, such Subsidiary Guarantor or such
Foreign Subsidiary), shall take all such other actions under the laws of such
jurisdictions as Administrative Agent may deem necessary or advisable to perfect
or otherwise protect the Liens purported to be created in such Capital Stock
under the Collateral Documents, and shall deliver to Administrative Agent an
opinion of counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) under the laws of each jurisdiction in which (i) any Loan
Party holding stock of the relevant Foreign Subsidiary is organized with respect
to the due authorization, execution and delivery of such foreign pledge
agreement by such Loan Party, and (ii) such Foreign Subsidiary is organized with
respect to customary matters regarding enforceability, validity and perfection
of such pledge.
D. Release of Restrictions. Borrowers shall use their good faith,
commercially reasonable efforts to obtain all necessary consents from all
Persons in whose favor or for whose benefit Contractual Obligations are in
effect which would be violated by (i) a pledge of the stock of any Subsidiary of
a Loan Party, (ii) entry into the Subsidiary Guaranty by a Domestic Subsidiary
which is not already a Loan Party, or (iii) granting a Lien on substantially all
of the assets of a Domestic Subsidiary. The foregoing efforts shall be exercised
so as to obtain such consents as soon as practicable but no later than 90 days
after the Closing Date.
E. Additional Subsidiary Borrowers. Borrowers shall (i) cause any
Domestic Subsidiary of any Borrower which commences a voluntary case under the
Bankruptcy Code to file the relevant petition for relief under the Bankruptcy
Code in the same venue as the Chapter 11 Cases, and shall promptly notify
Administrative Agent of such filing, (ii) apply to the Bankruptcy Court and
otherwise use best efforts to have any such voluntary case jointly administered
with the Chapter 11 Cases, and (iii) cause any such Subsidiary promptly (and in
any event no later than one Business Day after such filing) to execute and
deliver to Administrative Agent a Borrowing Subsidiary Agreement and a
counterpart of the Security Agreement (each such Subsidiary being an "Additional
Subsidiary Borrower") and to take all such further actions and execute all such
further documents and instruments (including actions, documents and instruments
comparable to those described in subsection 4.1J) as may be necessary or, in the
opinion of Administrative Agent, desirable to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and perfected security interest in
all of the personal and mixed property assets of such Subsidiary described in
the applicable forms of Collateral Documents, with the same priority as set
forth in the Interim Borrowing Order or the Final Borrowing Order, as
applicable, for the security interests granted by the initial Borrowers
hereunder. Upon delivery of such executed Borrowing Subsidiary Agreement by the
other Borrowers, notice of which is hereby waived by Borrowers other than
Company, and each of the other documents referred to in the immediately
preceding sentence, each such Additional Subsidiary Borrower shall be a Borrower
and shall be as fully a party hereto as if such Subsidiary were an original
signatory hereto as a Borrower. Each Borrower hereby expressly agrees that its
Obligations arising hereunder or under the other Loan Documents shall not be
affected or diminished by the addition or release of any Additional Subsidiary
Borrower hereunder.
6.9 Matters Relating to Additional Real Property Collateral.
From and after the Closing Date, in the event that (i) any Subsidiary
Guarantor acquires any fee interest in real property or any Material Leasehold
Property, or (ii) at the time any Person becomes a Subsidiary Guarantor after
the Closing Date, such Person owns or holds any fee interest in real property or
any Material Leasehold Property, such Subsidiary Guarantor shall, as soon as
practicable after such Person acquires such real property or Material Leasehold
Property or becomes a Subsidiary Guarantor, as the case may be, execute,
acknowledge, file, record, do and deliver all and any further acts, deeds,
conveyances, mortgages, hypothecations, pledges, charges, assignments, financing
statements and continuations thereof, notices of assignment, transfers,
certificates, assurances and other instruments, opinions, appraisals, title
insurance and environmental reports as Administrative Agent may reasonably
request to perfect and maintain the Liens created by the Collateral Documents,
the Interim Borrowing Order and the Final Borrowing Order, and to assure,
convey, assign, transfer and confirm unto Administrative Agent, for the benefit
of the Lenders, the property and rights thereby conveyed and assigned or
intended to now or hereafter be conveyed or assigned or that any Subsidiary
Guarantor may be or may hereafter become bound to convey or to assign to
Administrative Agent.
6.10 Cash Management System.
Each Borrower shall maintain the cash management system as described
in Schedule 4.1Q, and Company and its Subsidiaries shall not open or close
Deposit Accounts or make other changes to the cash management system without the
written consent of Administrative Agent. Borrowers shall at all times after
consummation of the Thai Asset Sale and prior to the date of entry of the Final
Borrowing Order maintain not less than $2,000,000 on deposit in the Collateral
Accounts.
6.11 Retention of Advisors.
On or prior to the date which is 30 days after the Closing Date,
Borrowers shall retain, and seek the approval of the Bankruptcy Court for the
retention of, on terms reasonably acceptable to Agents, a public relations firm
and an investment banker and restructuring financial advisor, in each case
reasonably satisfactory to Agents, to advise and assist management of the
Borrowers in managing customer relationships and developing, evaluating and
implementing exit alternatives from the Chapter 11 Cases.
6.12 Workers' Compensation Letters of Credit.
With respect to any Existing L/C issued for the purpose of supporting
workers' compensation liabilities of Company or any of its Subsidiaries, as
specified in Schedule 1.1A, or with respect to any Tranche B Letter of Credit
issued to replace any such Existing L/C, Company shall use reasonable best
efforts at all relevant times to cause the proportionate release, return and/or
cancellation by the beneficiaries thereof and the reduction, by amendment or
reissuance, of the face amount of such Tranche B Letter of Credit or Existing
L/C, as the case may be, from time to time as any such workers' compensation
liabilities are extinguished by full or partial payment thereof or otherwise,
prior to the reduction or release of any other obligations of Company or any of
its Subsidiaries supporting those same workers' compensation liabilities. To the
extent that a Tranche B Letter of Credit has not yet been issued to replace any
Existing L/C pursuant to subsection 3.1, Borrowers may amend or reissue such
Existing L/C as necessary and appropriate to give effect to the terms of this
subsection 6.12. The Tranche B Commitments shall be reduced by the amount of any
such release, return, cancellation or reduction of a Tranche B Letter of Credit
provided for under this subsection 6.12 and such reduction of the Tranche B
Commitments shall reduce each Tranche B Lender's Tranche B Commitment ratably.
6.13 Renewal of Existing Performance Bonds.
Borrowers shall, and shall cause their respective Subsidiaries to,
use reasonable best efforts at all relevant times prior to the Termination Date
to renew or extend the term of each of the performance bonds and other
instruments described on Schedule 3.1A(i) annexed hereto.
6.14 Further Assurances.
A. Assurances. Without expense or cost to Agents or Lenders, each
Borrower shall from time to time hereafter execute, acknowledge, file, record,
do and deliver all and any further acts, deeds, conveyances, mortgages, deeds of
trust, deeds to secure debt, security agreements, hypothecations, pledges,
charges, assignments, financing statements and continuations thereof, notices of
assignment, transfers, certificates, assurances and other instruments as
Administrative Agent may from time to time reasonably request and that do not
involve a material expansion of Borrowers' obligations or liabilities hereunder
in order to carry out more effectively the purposes of this Agreement, the other
Loan Documents, the Interim Borrowing Order or the Final Borrowing Order,
including to subject any Collateral, intended to now or hereafter be covered, to
the Liens created by the Collateral Documents, the Interim Borrowing Order and
the Final Borrowing Order, to perfect and maintain such Liens, and to assure,
convey, assign, transfer and confirm unto Administrative Agent the property and
rights thereby conveyed and assigned or intended to now or hereafter be conveyed
or assigned or that any Borrower may be or may hereafter become bound to convey
or to assign to Administrative Agent or for carrying out the intention of or
facilitating the performance of the terms of this Agreement, any other Loan
Documents, the Interim Borrowing Order or the Final Borrowing Order, registering
or recording this Agreement or any other Loan Document. Without limiting the
generality of the foregoing, Borrowers shall deliver to Administrative Agent,
promptly upon receipt thereof, all instruments received by Borrowers after the
Closing Date and take all actions and execute all documents necessary or
reasonably requested by Administrative Agent to perfect Administrative Agent's
Liens in any such instrument or any other Investment acquired by any Borrower.
B. Filing and Recording Obligations. Each Borrower shall jointly and
severally pay all filing, registration and recording fees and all expenses
incident to the execution and acknowledgement of any Mortgage or other Loan
Document, including any instrument of further assurance described in subsection
6.14A, and shall pay all mortgage recording taxes, transfer taxes, general
intangibles taxes and governmental stamp and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution,
delivery, filing, recording or registration of any Mortgage or other Loan
Document, including any instrument of further assurance described in subsection
6.14A, or by reason of its interest in, or measured by amounts payable under,
the Notes, the Mortgages or any other Loan Document, including any instrument of
further assurance described in subsection 6.14A, (excluding income, franchise
and doing business Taxes), and shall pay all stamp Taxes and other Taxes
required to be paid on the Notes or any other Loan Document; provided, however,
that such Borrower may contest in good faith and through appropriate
proceedings, any such Taxes, duties, imposts, assessments and charges; provided
further, however, that such Borrower shall pay all such Taxes, duties, imposts
and charges when due to the appropriate taxing authority during the pendency of
any such proceedings if required to do so to stay enforcement thereof. If any
Borrower fails to make any of the payments described in the preceding sentence
within 10 days after notice thereof from Administrative Agent (or such shorter
period as is necessary to protect the loss of or diminution in value of any
Collateral by reason of tax foreclosure or otherwise, as determined by
Administrative Agent) accompanied by documentation verifying the nature and
amount of such payments, Administrative Agent may (but shall not be obligated
to) pay the amount due and Borrowers shall jointly and severally reimburse all
amounts in accordance with the terms hereof.
C. Costs of Defending and Upholding the Lien. Administrative Agent
may, upon at least five days' prior notice to Borrowers, (i) appear in and
defend any action or proceeding, in the name and on behalf of any Agent, Lenders
or any Borrower, in which any Agent or any Lender is named or which
Administrative Agent in its sole discretion determines is reasonably likely to
materially adversely affect any Mortgaged Property, any other Collateral, any
Mortgage, the Lien thereof or any other Loan Document and (ii) institute any
action or proceeding which Administrative Agent reasonably determines should be
instituted to protect the interest or rights of Agents and Lenders in any
Mortgaged Property or other Collateral or under this Agreement or any other Loan
Document. Borrowers, jointly and severally, agree that all reasonable costs and
expenses expended or otherwise incurred pursuant to this subsection (including
reasonable attorneys' fees and disbursements) by Administrative Agent shall be
paid pursuant to subsection 10.2 hereof.
Section 7. BORROWERS' NEGATIVE COVENANTS
Borrowers covenant and agree that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrowers shall perform, and shall cause each of their Subsidiaries to perform,
all covenants in this Section 7.
7.1 Indebtedness.
Borrowers shall not, and shall not permit their respective
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Each Borrower may become and remain liable with respect to
Indebtedness to any other Borrower; provided that such Indebtedness shall
be incurred after the Closing Date solely to the extent such Indebtedness
represents amounts borrowed by the relevant Borrowers for purposes of
making expenditures permitted under subsection 7.6A; and provided further,
that all such intercompany Indebtedness shall be evidenced by one or more
promissory notes which shall be pledged pursuant to the Collateral
Documents;
(iv) Subsidiaries of Company may, after the Closing Date, become and
remain liable with respect to Indebtedness to any Borrower or Borrowers
evidencing an Investment in such Subsidiaries permitted under subsection
7.3(iv) or 7.3(vi); provided that all such intercompany Indebtedness shall
be evidenced by one or more Intercompany Notes which shall be pledged
pursuant to the Collateral Documents;
(v) Company and its Subsidiaries may remain liable with respect to
Indebtedness constituting Prepetition Indebtedness set forth on Schedule
7.1 annexed hereto without giving effect to any extensions, renewals,
refinancings, supplemental borrowings or other incurrences thereof;
(vi) Subsidiaries of Company which are not Loan Parties may become and
remain liable with respect to Indebtedness to Persons other than Company or
any of its Subsidiaries or their respective Affiliates (including
Indebtedness of a Subsidiary or Indebtedness secured by assets associated
with a Project in existence at the time of acquisition of such Subsidiary
or such asset, respectively, so long as such Indebtedness was not incurred
in contemplation of such acquisition and such acquisition is not otherwise
prohibited under this Agreement), to the extent such Indebtedness is
Limited Recourse Debt and the proceeds of such Limited Recourse Debt are
applied to Investments not prohibited by any other provision of this
Agreement;
(vii) Any Subsidiary of Company may become and remain liable with
respect to Indebtedness incurred to refinance, in whole or in part, Limited
Recourse Debt of such Subsidiary permitted to be incurred and/or remain
outstanding under this subsection 7.1; provided, that in each case (a) such
refinancing and the terms of such Limited Recourse Debt as refinanced would
not reasonably be expected to be more disadvantageous to Company and its
Subsidiaries, the Lenders or the Subsidiary obligated with respect to such
Limited Recourse Debt than the terms of the Limited Recourse Debt being
refinanced, (b) such Indebtedness is Limited Recourse Debt of such
Subsidiary, (c) no additional recourse to Company or any other Subsidiary
or any Affiliate of Company (or any of their equity, property or assets)
results from such refinancing, and (d) if such Subsidiary incurring such
refinancing Indebtedness is a Borrower, Borrowers shall have obtained
Bankruptcy Court approval of such refinancing; and
(viii) Borrowers may become and remain liable with respect to
Indebtedness incurred in connection with the rejection of leases and
executory contracts in the Chapter 11 Cases; provided, that the obligation
of any Borrower in respect of such Indebtedness shall be determined by a
Final Order of the Bankruptcy Court entered at the time of such rejection,
to be a general, unsecured, non-priority claim.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Borrowers shall not, and shall not permit
any of their respective Subsidiaries to, directly or indirectly, create, incur,
assume or permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods or
accounts receivable) of Borrowers or any such Subsidiary, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, or apply
to the Bankruptcy Court for the authority to do any of the foregoing, except:
(i) Permitted Encumbrances;
(ii) Liens created in favor of Administrative Agent (for the benefit
of Lenders) (a) pursuant to the Collateral Documents or (b) authorized by
the Interim Borrowing Order or the Final Borrowing Order;
(iii) Liens in existence on the Petition Date described on Schedule
7.2 annexed hereto;
(iv) Liens on assets of any Subsidiary of Company that is not a Loan
Party (and/or on the stock or other equity interests of such Subsidiary)
securing Indebtedness of such Subsidiary permitted by subsection 7.1(vi);
(v) Liens securing refinancing Indebtedness permitted by subsection
7.1(vii), provided that in each case the Liens securing such refinancing
Indebtedness shall attach only to the assets that were subject to Liens
securing the Indebtedness so refinanced; and
(vi) Liens permitted under the Project Cash Collateral Order.
B. No Further Negative Pledges. Neither Company nor any of its
Subsidiaries shall enter into any agreement (other than this Agreement and the
Loan Documents) on or after the Closing Date prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except with respect to specific property to be sold
pursuant to an executed agreement with respect to an Asset Sale that is
permitted hereunder.
C. No Restrictions on Subsidiary Distributions to Borrowers or Other
Subsidiaries. Company will not, and will not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary's
Capital Stock owned by Company or any other Subsidiary of Company, (ii) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company, except (a) as provided in this Agreement or the other
Loan Documents and (b) as may be provided in an executed agreement with respect
to an Asset Sale that is permitted hereunder.
7.3 Investments; Acquisitions.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, or acquire, by purchase or otherwise, all
or substantially all the business, property or fixed assets of, or Capital Stock
or other ownership interest of any Person, or any division or line of business
of any Person except:
(i) Company and its Domestic Subsidiaries may make and own Investments
in Domestic Cash Equivalents and in such investments as are permitted under
the terms of the agreement establishing the Cash Collateral Account, as
such agreement is in effect on the Closing Date and as it may be amended or
supplemented from time to time thereafter with the consent of Agents; and
Company's Foreign Subsidiaries may make and own Investments in Foreign Cash
Equivalents;
(ii) Company and its Subsidiaries may continue to own the Investments
owned by them as of the Closing Date in any Subsidiaries of Company; and
Company and its Subsidiaries may make and own additional equity Investments
after the Closing Date in other Borrowers solely to the extent such
Investments represent amounts advanced or invested for purposes of making
expenditures permitted under subsection 7.6A or making other Investments
permitted under this subsection 7.3;
(iii) Company and its Subsidiaries may continue to own the Investments
owned by them on the Petition Date and described in Schedule 7.3 annexed
hereto;
(iv) Company and its Subsidiaries may make and own Investments
consisting of cash amounts advanced or contributed to those Projects set
forth in Schedule 7.3(iv) annexed hereto to the extent Company and its
Subsidiaries are committed as of the Closing Date to make such advances or
contributions; provided that (a) each such Investment (or commitment to
make the same) made in connection with such Projects shall be in an amount
not exceeding the amount set forth on such Schedule, (b) the equity
interests held by Company or any of its Subsidiaries in any new Subsidiary
formed in connection with any such Investment shall be pledged as
Collateral under the Collateral Documents, except to the extent such pledge
is not required under subsection 6.8, and (c) the aggregate cash usage for
such Projects in any period shall not exceed the amounts therefor set forth
in the Monthly Budget for any such period;
(v) Borrowers may make intercompany loans to the extent permitted
under subsection 7.1(iii);
(vi) Borrowers may, after the Closing Date, make and own Investments
consisting of amounts advanced to Subsidiaries of Company that are not
Borrowers, so long as the proceeds of such Investments are (a) applied for
purposes of making expenditures permitted under subsection 7.6A and (b) not
applied to make any Capital Expenditures except with respect to Projects of
Company and its Subsidiaries in existence on the Closing Date; provided
that (x) nothing in this subsection 7.3(vi) shall be construed to permit
Investments and expenditures with respect to the Projects set forth in
Schedule 7.3(iv) annexed hereto to exceed the amounts permitted under
subsection 7.3(iv), and (y) each Investment in a Subsidiary of Company
permitted under this subsection 7.3(vi) shall be evidenced by an
intercompany loan from a Borrower or Borrowers to such Subsidiary meeting
the requirements of subsection 7.1(iv);
(vii) Any Subsidiaries of Company (other than Loan Parties) may make
acquisitions of assets or of equity interests in other Persons so long (x)
as such acquisitions are financed solely with the proceeds of Limited
Recourse Debt of such Subsidiary and/or amounts (other than the proceeds of
Indebtedness) received from Persons other than Company or any of its
Subsidiaries (which amounts shall in no event include proceeds of Loans),
(y) Company provides to Agents all material contracts or other agreements
entered into in connection with such any Investment, and (z) Company and
its Subsidiaries shall incur no Indebtedness, Contingent Obligation,
Performance Guaranty or enter into any Contractual Obligation (contingent
or otherwise) to incur Indebtedness, a Contingent Obligation, a Performance
Guaranty or other similar obligation (including any obligation to procure
or provide a performance bond, construction bond or surety bond) in
connection with such Investment that is not otherwise permitted under this
Agreement; and
(viii) Company and its Subsidiaries may make and own involuntary
Investments in waste-to-energy Projects after the Closing Date to the
extent such Investments consist solely of cash generated by such Projects
which is not released to Company and its Subsidiaries by the counterparties
to the principal service agreements or operating agreements associated with
such Projects; provided that (a) Borrowers shall, and shall cause their
respective Subsidiaries to, use best efforts to cause such counterparties
to release such cash on a timely basis and (b) nothing in this subsection
7.3(viii) shall be construed as a waiver of any rights of Agents or Lenders
under this Agreement or as a modification of any other provision of this
Agreement.
7.4 Contingent Obligations.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation or Performance Guaranty, and shall not
create or become or remain liable with respect to any obligation to incur a
subsequent Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable with respect
to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Borrowers may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit and other Obligations;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of customary and appropriate
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets to the extent such
Asset Sales and sales are either permitted under this Agreement or were
consummated prior to the date of this Agreement;
(iv) Company and its Subsidiaries, as applicable, may remain liable
with respect to Contingent Obligations (including letters of credit) and
Performance Guaranties in existence on the Petition Date and described in
Schedule 7.4 annexed hereto, without giving effect to any extensions,
renewals, refinancings, increases, replacements or other incurrences
thereof; and Company and its Subsidiaries, as applicable, may become and
remain liable with respect to surety bonds, construction bonds or
performance bonds extending, renewing or replacing Contingent Obligations
consisting of surety bonds, construction bonds or performance bonds,
respectively, which are described in Schedule 7.4; provided that no such
replacement surety bond, construction bond or performance bond shall be
greater in amount or otherwise more disadvantageous in any material respect
to Company and its Subsidiaries than the surety bond or performance bond,
as the case may be, so extended, renewed or replaced; and
(v) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations consisting of long-term or forward
purchase contracts and option contracts to buy, sell or exchange
commodities and similar agreements or arrangements, so long as such
contracts, agreements or arrangements do not constitute Commodities
Agreements.
7.5 Restricted Payments; Limitation on Repayments.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, (i) directly or indirectly, declare, order, pay, make or set
apart any sum for any Restricted Payment, (ii) make any payment or prepayment on
or redemption or acquisition for value (including by way of depositing with the
trustee with respect thereto money or securities before due for the purpose of
paying when due) of any Prepetition Indebtedness or other pre-Petition Date
obligations of such Person, (iii) pay any interest on any Prepetition
Indebtedness of such Person (whether in cash, in kind securities or otherwise),
or (iv) make any payment or create or permit any Lien pursuant to any provision
of the Bankruptcy Code, or apply to the Bankruptcy Court for the authority to do
any of the foregoing; provided that (a) Borrowers and their respective
Subsidiaries may make payments permitted under subsection 2.10, (b) Borrowers
and their respective Subsidiaries may pay any post-Petition Date expense
incurred in the ordinary course of business including usual and customary
post-Petition Date employee salaries and benefits (provided that any of the
foregoing to the contrary notwithstanding, except as permitted under subsection
7.8, Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, implement or make any payments in respect of bonus, retention,
severance or similar arrangements with respect to any of their respective
officers, employees, directors or advisors, without the prior written consent of
Agents and Requisite Lenders), (c) Borrowers and their respective Subsidiaries
may apply to the Bankruptcy Court for the Project Cash Collateral Order and the
other First Day Orders, and may make payments (including payments with respect
to certain Indebtedness and payments to certain critical vendors) and permit the
creation of Liens in each case to the extent permitted by the Project Cash
Collateral Order and the other First Day Orders, and (d) Borrowers and their
respective Subsidiaries may make payments to such other claimants and in such
amounts as may be consented to by Requisite Lenders and approved by the
Bankruptcy Court.
7.6 Budget and Financial Covenants.
A. Budget Expenditures Covenants. Borrowers shall not, and shall not
permit their respective Subsidiaries to:
(i) make cash expenditures in any month of a type which would be
classified under (a) any of the line items labeled "IPP East
Disbursements", "IPP West Disbursements - Non-Filing Entities", "WTE
Disbursements - Non-Filing Entities", or "Water Disbursements" (in each
case under the heading "Core Energy Operations"), or (b) either the line
item labeled "IPP Identified" or the line item labeled "IPP Unidentified"
(under the heading "Energy Capital Expenditures"), if such expenditures
would cause cumulative expenditures for the period from the commencement of
the Budget Period through such month which would be classified under any
such line item to exceed the sum of the correlative amounts for such line
item set forth in the Monthly Budget for such month and each preceding
month; or
(ii) make cash expenditures in any month of a type which would be
classified under the line item labeled "Existing Facilities (Maint. and
Environ.)" (under the heading "Energy Capital Expenditures"), if such
expenditures would cause cumulative expenditures for the period from the
commencement of the Budget Period through such month which would be
classified under such line item to exceed the sum of (a) the cumulative
total amount for such line item set forth in the Monthly Budget for such
month and each preceding month and (b) $2,000,000; or
(iii) make cash expenditures in any month of a type which would be
classified under the line item labeled "Critical Vendor Payments" (under
the heading "Core Energy Operations"), if the aggregate amount of such
expenditures made from the commencement of the Budget Period would exceed
$7,000,000; or
(iv) make cash expenditures in any month of a type which would be
classified under any of the line items under the heading "Assets For
Disposition" in the Monthly Budget (excluding the line items labeled
"Workers' Compensation" and "Non-Energy Insurance") if the aggregate amount
of such expenditures made from the commencement of the Budget Period would
exceed $3,000,000; or
(v) make cash expenditures in any month of a type which would be
classified under either the line item labeled "Ottawa" or the line item
labeled "OEES Construction" (under the heading "Assets for Disposition") in
the Monthly Budget; or
(vi) make cash expenditures in any month of a type which would not be
classified under any of the line items reflected in the Monthly Budget,
notwithstanding any other more permissive provision of this Agreement.
For purposes of this Agreement, whether or not a particular
expenditure shall or would be classified under a particular line item of the
Monthly Budget shall be determined (a) to the extent such line item (whether or
not having the same designation) appeared in the "Monthly Budget" delivered
pursuant to (and as defined in) the Prepetition Credit Agreement, in a manner
consistent with Company's prior classification of such expenditures in its
reporting under the Prepetition Credit Agreement, and (b) for all line items not
covered by the preceding clause (a), in a manner consistent with Company's
classification of expenditures of the same type as such expenditure in preparing
the projections forming the basis for the Monthly Budget and the 13-Week Cash
Forecast.
B. Minimum Cumulative Consolidated Operating Income. As of the end of
any Fiscal Quarter ending on or after the entry by the Bankruptcy Court of the
Final Borrowing Order, Company shall not permit Consolidated Operating Income
for the period commencing March 31, 2002 and ending at the end of such Fiscal
Quarter to be less than the correlative amount indicated for such Fiscal Quarter
in the Minimum Cumulative Consolidated Operating Income Schedule.
7.7 Restriction on Fundamental Changes; Asset Sales.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, alter the legal form of organization of Company or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of (including by discount or compromise), in one
transaction or a series of transactions, all or any part of its business,
property or assets (including its notes or receivables and Capital Stock of a
Subsidiary, whether newly issued or outstanding) or its interests in or claims
against any Project, in each case whether now owned or hereafter acquired,
except:
(i) any Subsidiary Guarantor may be merged with or into any
wholly-owned Subsidiary Guarantor, and any Borrower may be merged with or
into another Borrower, or be liquidated, wound up or dissolved, or all or
any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to such Borrower or such wholly-owned Subsidiary Guarantor,
as the case may be;
(ii) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out
or surplus property in the ordinary course of business; provided that (a)
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof; (b) the consideration received
shall be limited to cash; and (c) the aggregate book value of such property
shall not exceed $250,000 and the fair market value of such property shall
not exceed $250,000;
(iv) in the ordinary course of business in collecting on defaulted
trade receivables over 120 days past due, Company and its Subsidiaries may
discount or otherwise compromise, for less than the face value thereof,
such accounts receivable;
(v) Company or a Subsidiary may sell or dispose of shares of Capital
Stock of any of its Subsidiaries, in order to qualify members of the
Governing Body of the Subsidiary if required by applicable law;
(vi) Company and its Subsidiaries may make Approved Asset Sales,
provided that (a) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof; (b) the sole
consideration received in such Asset Sales shall be cash and the assumption
of Indebtedness and Contingent Obligations related to such assets; (c) any
Indebtedness secured solely by the assets being transferred in such
Approved Asset Sales shall be repaid and the related letters of credit
shall be cancelled and returned to the issuers thereof; and (d) to the
extent the Net Asset Sale Proceeds from any such Approved Asset Sale exceed
$5,000,000, such excess amount shall be applied as a Mandatory Payment in
accordance with the applicable provisions of subsection 2.4A (it being
understood that prior to any such Approved Asset Sale Company shall have
provided evidence reasonably satisfactory to Agents that Company and its
Subsidiaries have made arrangements to effect such application on a timely
basis);
(vii) Any Subsidiary of Company that is not a Loan Party may, if its
Governing Body determines that doing so is in the best interests of such
Subsidiary, change its legal form of organization to a limited liability
company, a corporation or a limited partnership; provided that (a) if all
or any portion of the equity interests of such Subsidiary are subject to
Liens created under the Collateral Documents prior to such change, the same
percentage of the equity interests of such Subsidiary shall continue to be
subject to Liens under the Collateral Documents after such change, with
such Liens being of equal or higher priority than before such change and,
if perfected prior to such change, perfected, and (b) Company and its
Subsidiaries shall have complied with the provisions of the Collateral
Documents applicable to such change of legal form;
(viii) In the event the Thai Asset Sale shall not have been
consummated prior to the Closing Date, Subsidiaries of Company may
consummate the Thai Asset Sale; provided that (a) the consideration
received shall be limited to cash, (b) the aggregate Net Asset Sale
Proceeds from the Thai Asset Sale shall not be less than $33,000,000 and
shall be applied as a Mandatory Payment in accordance with the applicable
provisions of subsection 2.4A (it being understood that prior to receipt of
any such proceeds Company shall have provided evidence reasonably
satisfactory to Agents that Company and its Subsidiaries have made
arrangements to effect such application on a timely basis), and (c) the
principal documentation for such sale shall be in form and substance
reasonably satisfactory to Agents; and
(ix) Company, as a Junior Lender (as such term is defined in the
Senators Senior Subordination Agreement) may, without further consent of
any Agent or any Lender (other than any consent otherwise required of any
Lender in its capacity as an applicable Opt-Out Lenders under the
applicable Opt-Out Facility Documents (as such terms are defined in the
Prepetition Credit Agreement)), exercise its rights and perform its
obligations under Section 9 of the Senators Senior Subordination Agreement
with respect to releasing its Liens on the property of the Senators Hockey
Club upon a sale or transfer of such property which the "Senior Lenders"
(or such other applicable parties) under the Senators Senior Subordination
Agreement reasonably believe to be for consideration which is reasonably
equivalent to the fair value of such property, so long as the Senators
Lease shall not be terminated or otherwise amended or modified in any
respect (including any amendment or modification that alters the legal,
equitable or contractual rights of Xxxxx Palladium Services (Canada) Inc.
thereunder) in connection with, or as a condition of, any such sale or
transfer (any such permitted sale or transfer being referred to herein as a
"Permitted Senators Transaction"), except to the extent such amendment,
termination or modification is permitted under and in accordance with the
last sentence of subsection 7.10; provided that the proceeds of any
Permitted Senators Transaction are applied in accordance with the relevant
terms of the Senators Senior Subordination Agreement and the NHL Priority
Loan Letter Agreement.
Notwithstanding anything to the contrary contained herein, Borrowers
shall not, and shall not permit their respective Subsidiaries to, agree to or
otherwise permit, without the prior written consent of Requisite Lenders, the
release, extinguishments or termination of any right of consent or approval
which Company or any of its Subsidiaries may have over an amendment of,
modification to or termination of the Senators Lease.
7.8 Bonus and Retention Arrangements.
Borrowers shall not, and shall not permit their respective
Subsidiaries to, make cash expenditures in respect of bonus, retention,
severance or similar arrangements with respect to any of their respective
officers, employees, directors or advisors without prior written consent of
Requisite Lenders, except for cash expenditures made in accordance with the
terms (and in amounts not exceeding the amounts) disclosed in writing to Agents
and Lenders pursuant to subsection 4.1U. Nothing in this subsection 7.8 shall be
deemed to permit Company and its Subsidiaries to make any cash expenditure
referred to in the preceding sentence in the event that, after giving effect to
such payment, Borrowers would reasonably be expected to be unable to fund the
expenditures projected in the Monthly Budget for the remainder of the Budget
Period, assuming that borrowings under this Agreement and revenues shall be as
projected in the Monthly Budget for the remainder of the Budget Period. No cash
expenditures for payment of a bonus referred to in the first sentence of this
subsection 7.8 shall be permitted unless Borrowers shall have delivered to
Agents on the Business Day prior to such payment an Officer's Certificate
certifying that (i) Borrowers do not expect to be unable, after giving effect to
such payment, to fund the expenditures projected in the Monthly Budget for the
remainder of the Budget Period, and (ii) Borrowers believe in good faith that
the assumptions on which the projected expenditures, projected borrowings under
this Agreement and projected revenues set forth in the Monthly Budget for the
remainder of the Budget Period are based are reasonable on the date of delivery
of such Officer's Certificate.
7.9 Transactions with Shareholders and Affiliates.
Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any holder of 5% or more of any class of
equity Securities of Company or with any Affiliate of Company or of any such
holder, on terms that are less favorable to Company or that Subsidiary, as the
case may be, than those that might be obtained at the time from Persons who are
not such a holder or Affiliate; provided that the foregoing restriction shall
not apply to (i) any Indebtedness permitted under subsection 7.1(iii) or
intercompany Indebtedness between Company and its Subsidiaries or between any of
its Subsidiaries existing on the Petition Date, (ii) any transaction between a
Borrower and any other Borrower, (iii) reasonable and customary fees paid to
members of the Governing Bodies of Company and its Subsidiaries, provided that
such fees are no less favorable to Company or that Subsidiary, as the case may
be, than those paid prior to the Petition Date, or (iv) the payment of
reasonable legal fees and expenses incurred by law firms in which Directors of
Company are affiliated for services rendered to Company and its Subsidiaries, to
the extent the payment of such fees and expenses is not otherwise prohibited
hereunder and, in the case of such fees and expenses paid by Borrowers, is
approved by the Bankruptcy Court and not objected to by Agents or Requisite
Lenders.
7.10 Restriction on Leases
Borrowers shall not, and shall not permit any of their Subsidiaries
to, become liable in any way, whether directly by assignment or as a guarantor
or other surety, for the obligations of the lessee under any lease, whether an
Operating Lease or a Capital Lease (other than intercompany leases between
Borrowers), unless, immediately after giving effect to the incurrence of
liability with respect to such lease, the aggregate amount of all rents paid or
payable by Company and its Subsidiaries on a consolidated basis under all such
leases entered into after the Closing Date at the time in effect during the then
current Fiscal Year or any future period of 12 consecutive calendar months shall
not exceed $3,000,000 (which amount shall not include amounts paid or payable
under leases so entered to the extent (a) such leases represent renewals or
extensions of existing leases and (b) the amounts paid or payable during such
12-month period under such leases (as renewed or extended) are not in excess of
the amounts paid or payable for the immediately preceding 12-month period under
the leases so renewed or extended); provided, however, that nothing in this
subsection 7.10 shall be construed to permit expenditures in excess of amounts
permitted under subsection 7.6A. Without limiting the provisions of subsection
7.7(ix), if Company or any of its Subsidiaries (including Xxxxx Palladium
Services (Canada) Inc.) has the right to consent to or approve any amendment of,
modification to or termination of the Senators Lease, Company and its
Subsidiaries shall not exercise any such consent or approval right without the
prior written consent of either Agents (which consent shall not be unreasonably
withheld, conditioned or delayed, but shall in any event not be given unless (x)
Lenders shall have received advance notice of such proposed amendment,
modification or termination and (y) within 3 Business Days after receipt of such
notice, Agents shall not have received an objection by Requisite Lenders to such
proposed amendment, modification or termination) or Requisite Lenders.
7.11 Sales and Lease-Backs.
Borrowers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, (i) that Company or any of its Subsidiaries has
sold or transferred or is to sell or transfer to any other Person (other than
Company or any of its Subsidiaries) or (ii) that Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by Company or any of its
Subsidiaries to any Person (other than Company or any of its Subsidiaries) in
connection with such lease; provided that Borrowers and their respective
Subsidiaries may remain liable under those transactions entered into prior to
the Closing Date and described on Schedule 7.11.
7.12 Conduct of Business.
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries, to engage in any business other than the
businesses engaged in by Company and its Subsidiaries on the Petition Date and
the energy business.
7.13 Chapter 11 Claims.
Without limiting the provisions of subsection 7.2 hereof, no Borrower
shall incur, create, assume, suffer or permit any claim or Lien or encumbrance
against it or any of its property or assets in any Chapter 11 Case (other than
the claims specifically referred to in subsection 2.10 and the Final Borrowing
Order but only to the extent therein described) to be pari passu with or senior
to the claims of Agents and Lenders against any Borrower in respect of the
Obligations hereunder, or apply to the Bankruptcy Court for authority to do so,
except to the extent permitted herein.
7.14 Agreements; Orders.
A. Material Contracts and Prepetition Indebtedness. Borrowers shall
not assume, reject, cancel, terminate, breach or modify (whether pursuant to
Section 365 of the Bankruptcy Code or any other applicable law or otherwise),
(i) any Prepetition Indebtedness if such assumption, rejection, cancellation,
termination, breach or modification could reasonably be expected to be adverse
in any material respect to the interests of the Lenders under the Loan
Documents, (ii) any Material Contract or any other agreement, contract,
instrument or other document to which it is a party which assumption, rejection,
cancellation, termination, breach or modification could reasonably be expected
to result in a Material Adverse Effect.
B. Amendments to Orders. Company shall not, and shall not permit any
of its Subsidiaries to, amend, modify or waive (or make any payment consistent
with an amendment, modification or waiver of), or apply to the Bankruptcy Court
for authority to make any amendment, modification or waiver of, any provision of
the Interim Borrowing Order or the Final Borrowing Order without in each case
the prior written consent of Agents and Requisite Lenders.
C. Amendments to Organizational Documents. Company shall not, and
shall not permit any of its Subsidiaries to, amend, modify or waive (or make any
payment consistent with an amendment, modification or waiver of) any material
provision of any of the Organizational Documents of Company and its
Subsidiaries, if the effect of such amendment, modification or waiver, together
with all other amendments, modifications or waivers made, is adverse in any
material respect to the interests of the Lenders under the Loan Documents.
7.15 Fiscal Year.
Company shall not, and shall not permit any of its Subsidiaries to
change the end of the Fiscal Year of Company or any of its Subsidiaries from
December 31st.
Section 8. EVENTS OF DEFAULT
Notwithstanding the provisions of Section 362 of the Bankruptcy Code
and without application or motion to, or order from, the Bankruptcy Court, the
occurrence of any one or more of the following events, regardless of the reason
therefor, shall constitute an "Event of Default" hereunder:
8.1 Failure to Make Payments When Due.
Failure by Borrowers to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Borrowers to pay
when due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Borrowers to pay any interest or any fee
or any other amount due under this Agreement within five days after the date
due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable (a) in respect of
one or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1 or in clause (b)) or Contingent Obligations or Performance
Guaranties, in each case in the principal amount of $2,000,000 or more,
individually or in the aggregate, or (b) in respect of Limited Recourse
Debt of Subsidiaries of Company in the principal amount of $6,000,000 or
more, individually or in the aggregate, in each case beyond the end of any
grace period provided therefor (provided that Limited Recourse Debt
incurred in connection with one or more Projects to which less than
$2,000,000 in the aggregate of Consolidated Operating Income is
attributable for the 12-month period immediately preceding the failure to
pay such interest, principal or other amounts shall not be considered
Indebtedness or Limited Recourse Debt solely for purposes of this clause
(b)), to the extent the obligations to repay such amounts described in
either clause(a) or (b) are enforceable on a post-Petition Date basis; or
(ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) one or more items of Indebtedness
or Contingent Obligations in the individual or aggregate principal amounts
referred to in clause (i) above or (b) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness or
Contingent Obligation(s), if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders)
to cause, that Indebtedness or Contingent Obligation(s) to become or be
declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (upon the giving
or receiving of notice, lapse of time, both, or otherwise), and to the
extent that the obligations to repay such amounts are enforceable on a
post-Petition Date basis; or
8.3 Breach of Certain Covenants.
Failure of any Borrower to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 Breach of Warranty.
Any representation, warranty, certification or other statement made
by Company or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by Company or any of its Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Loan Party shall default in the performance of or compliance with
any term contained in this Agreement or any of the other Loan Documents, other
than any such term referred to in any other subsection of this Section 8, and
such default shall not have been remedied or waived within 30 days after the
earlier of (i) an Officer of Company or such Loan Party becoming aware of such
default or (ii) receipt by Company or such Loan Party of notice from
Administrative Agent or any Lender of such default; or
8.6 Bankruptcy Events.
With respect to the Chapter 11 Cases, (a) the entry of an order or
ruling, which has not been withdrawn, dismissed or reversed:
(i) authorizing any Borrower in any of the Chapter 11 Cases to obtain
additional financing under Section 364(c) or (d) of the Bankruptcy Code, or
authorizing any Person to recover from any portions of the Collateral any
amounts pursuant to Section 506(c) of the Bankruptcy Code or otherwise, or
(except as provided in the Interim Borrowing Order or the Final Borrowing
Order) authorizing the use of cash collateral without Requisite Lenders'
prior written consent under Section 363(c) of the Bankruptcy Code; or
(ii) appointing an interim or permanent trustee in any of the Chapter
11 Cases or the appointment of a responsible officer or an examiner with
powers beyond the duty to investigate and report (as set forth in Sections
1106(a)(3) and (4) of the Bankruptcy Code) in any of the Chapter 11 Cases;
or
(iii) without the prior written consent of Agents and Requisite
Lenders, dismissing of any of the Chapter 11 Cases, or converting of any of
the Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code; or
(iv) granting relief from or modifying the automatic stay of Section
362 of the Bankruptcy Code with respect to assets having a value in excess
of $1,000,000 in the aggregate (x) to allow any creditor to execute upon or
enforce a Lien on any Collateral or on any other property or assets of any
Borrower, (y) with respect to any Lien of, or the granting of any Lien on
any Collateral or any other property or assets of any Borrower to, any
State or local environmental or regulatory agency or authority or (z) to
permit termination of or other exercise of remedies under Material
Contracts described in clause (i) of the definition of Material Contracts;
or
(v) without the prior written consent of Agents and Requisite Lenders,
amending, supplementing, staying, reversing, vacating or otherwise
modifying any of the Interim Borrowing Order, the Final Borrowing Order or
this Agreement or any other Loan Document or any of the Agents' or the
Lenders' rights, benefits, privileges or remedies under the Interim
Borrowing Order, the Final Borrowing Order, this Agreement or any other
Loan Document; or
(vi) consolidating or combining any Borrower with any other Person
(other than another Borrower), except pursuant to a confirmed plan of
reorganization with the prior written consent of holders of Lenders having
or holding at least 66-2/3% of the Loan Exposure of all Lenders as
contemplated in the plan of reorganization; or
(vii) approving any other administrative expense claim (other than the
Carve-Outs) having any priority over, or being pari passu with, the
administrative expense priority of the Obligations in respect of any of the
Chapter 11 Cases, or approving any Lien on the Collateral (other than those
specifically referred to in subsection 2.10 and the Final Borrowing Order,
but only to the extent therein described, and those expressly permitted
under this Agreement) having any priority over, or being pari passu with,
the Liens securing the Obligations pursuant to the Loan Documents, the
Interim Borrowing Order and the Final Borrowing Order;
(viii) other than as expressly permitted pursuant to the First Day
Orders or subsection 7.5, approving any payment or prepayment on or
redemption or acquisition for value (including, without limitation, by way
of depositing with the trustee with respect thereto money or securities
before due for the purpose of paying when due) of any Prepetition
Indebtedness or other pre-Petition Date obligations of any Borrower, or
approving any payment of any interest on any Prepetition Indebtedness of
any Borrower (whether in cash, in kind securities or otherwise); or
(b) the filing by any Loan Party of a motion, application or other petition to
effect or consent to any order referred to in the foregoing clause (a); or (c)
there shall arise any other administrative expense claim (other than the
Carve-Outs) having any priority over, or being pari passu with the
administrative expense priority of the Obligations in respect of any of the
Chapter 11 Cases, or there shall arise any Lien on the Collateral (other than
the Carve-Outs, but only to the extent described in subsection 2.10 and the
Final Borrowing Order, and those expressly permitted under this Agreement)
having any priority over, or being pari passu with, the Liens securing the
Obligations pursuant to the Loan Documents, the Interim Borrowing Order and the
Final Borrowing Order; or (d) the Bankruptcy Court shall fail to enter the
Interim Borrowing Order (or the Final Borrowing Order, in lieu thereof) on or
prior to the date that is fifteen (15) days after the Petition Date, or shall
fail to enter the Final Borrowing Order on or prior to the date that is
forty-five (45) days after the Petition Date approving, among other things, this
Agreement and the other Loan Documents and the transactions contemplated
hereunder and thereunder, or shall abstain from hearing any of the Chapter 11
Cases, or any Loan Party shall file a motion, application or other petition
requesting such relief; or (e) any Loan Party shall default in the due
performance or observance by it of any term, covenant or agreement contained in
the Interim Borrowing Order or the Final Borrowing Order and such default shall
continue for a period of 3 days after the earlier to occur of (x) an Officer of
Company or such Loan Party becoming aware of such default or (y) receipt by
Company or such Loan Party of notice from any Agent or any Lender of such
default; or
8.7 Judgments and Attachments.
(i) Any money judgment, writ or warrant of attachment or similar
process as to post-Petition Date liability or debt (a) in any individual
case an amount in excess of $1,000,000 or (b) in the aggregate at any time
an amount in excess of $1,000,000 (in either case not adequately covered by
insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Company or any of
its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or (ii) any non-monetary judgment or order with respect to a
post-Petition Date event shall be rendered against any Borrower which could
reasonably be expected to result in a Material Adverse Effect and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60
days; or
8.8 Dissolution.
Any order, judgment or decree shall be entered against Company or any
of its Material Subsidiaries decreeing the dissolution or split up of Company or
that Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
8.9 Employee Benefit Plans.
There shall occur one or more ERISA Events that individually or in
the aggregate results in or are reasonably be expected to result in liability of
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
excess of $1,000,000 during the term of this Agreement; or there shall exist an
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA, but determined on the basis of actuarial assumptions used for funding
purposes with respect to such Pension Plans), individually or in the aggregate
for all Pension Plans (excluding for purposes of such computation any Pension
Plans with respect to which assets exceed benefit liabilities), which exceeds
$10,000,000; or
8.10 Material Adverse Effect.
Any event or change shall occur after the date of this Agreement that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect; or
8.11 Change in Control.
A Change in Control shall have occurred; or
8.12 Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation
of Obligations.
At any time after the execution and delivery thereof, (i) the
Subsidiary Guaranty for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii) the
grants of Collateral made in the Interim Borrowing Order and the Final Borrowing
Order shall, at any time, cease to be in full force and effect (other than by
reason of a release of Collateral in accordance with the terms thereof or the
payment in full of the Obligations, the cancellation or expiration of all
Letters of Credit and the termination of the Commitments) or shall be declared
null and void, or the validity or enforceability thereof shall be contested by
any Loan Party, (iii) any Collateral Document shall cease to be in full force
and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the payment in full of the
Obligations, the cancellation or expiration of all Letters of Credit and the
termination of the Commitments or any other termination of such Collateral
Document in accordance with the terms hereof or thereof) or shall be declared
null and void, or Administrative Agent shall not have or shall cease to have a
valid and perfected Lien (with the priority set forth in subsection 5.15A) in
any Collateral purported to be covered thereby, in each case for any reason
other than the failure of Administrative Agent or any Lender to take any action
within its control, or (iv) any Loan Party shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document to which it is a party; or
8.13 Canadian Bankruptcy Events.
The entry of any Initial CCAA Order without the prior written consent
of Agents, or the filing by any of the Canadian Subsidiaries of any plan or
plans of arrangement or reorganization under applicable Canadian law without, in
each instance, the prior written consent of Requisite Lenders; or
8.14 Restructuring Advisor.
The restructuring advisor of Company as of the Closing Date, or any
successor thereto, (i) shall be terminated without cause by Company or shall
have the terms of its retention by Company amended or otherwise modified in any
material respect without the prior written consent of Agents and Requisite
Lenders, or (ii) shall be terminated by Company for any reason or otherwise
cease for any reason to perform its duties as restructuring advisor of Company
in accordance with the terms of its retention, without a successor thereto
satisfactory to Agents and Requisite Lenders (in their sole discretion) having
commenced to perform such duties within 15 days after such cessation; or
8.15 Termination of Material Contracts.
Any Material Contract shall be terminated by Company or any of its
Subsidiaries or by the counterparty or counterparties thereto, if such
termination is enforceable by Company, such Subsidiary, or such counterparty or
counterparties on a post-Petition Date basis:
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6, each of (a) the unpaid principal amount of and accrued interest
on the Loans, (b) an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Borrower, and the obligation of each Lender to make any
Loan, the obligation of Administrative Agent or the right of Documentation Agent
to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon
the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall (notwithstanding the provisions of Section 362 of the
Bankruptcy Code and without application or motion to, or order from, the
Bankruptcy Court), upon the written request or with the written consent of
Requisite Lenders, by written notice to Borrowers, declare all or any portion of
the amounts described in clauses (a) through (c) above to be, and the same shall
forthwith become, immediately due and payable, and the obligation of each Lender
to make any Loan, the obligation of Administrative Agent and any other Issuing
Lender to issue any Letter of Credit and the right of Documentation Agent and
any other Issuing Lender to issue any Letter of Credit hereunder shall thereupon
terminate.
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Security Agreement and shall be applied as therein provided.
Further upon the occurrence and during the continuance of any Event
of Default, Administrative Agent may, and upon the written request of Requisite
Lenders shall, (i) exercise all rights and remedies of Administrative Agent set
forth in any of the Collateral Documents, in addition to all rights and remedies
allowed by, the United States and of any state thereof, including but not
limited to the UCC, and (ii) revoke Borrowers' rights to use cash collateral in
which Administrative Agent has an interest; provided that, any other provision
of this Agreement or any other Loan Document to the contrary notwithstanding,
with respect to the foregoing, Administrative Agent shall give Loan Parties and
counsel to any official committees in respect of the Chapter 11 Cases and the
office of the United States Trustee five Business Days prior written notice
(which notice shall be delivered by facsimile or overnight courier) of the
exercise of its rights and remedies with respect to the Collateral and file a
copy of such notice with the clerk of the Bankruptcy Court. Neither
Administrative Agent nor Lenders shall have any obligation of any kind to make a
motion or application to the Bankruptcy Court to exercise their rights and
remedies set forth or referred to in this Agreement or in the other Loan
Documents. The enumeration of the foregoing rights and remedies is not intended
to be exhaustive and the exercise of any right or remedy shall not preclude the
exercise of any other rights or remedies, all of which shall be cumulative and
not alternative. Borrowers waive, (i) presentment, demand and protest and notice
of presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties or other
property at any time held by Administrative Agent or Lenders on which Loan
Parties may in any way be liable and hereby ratify and confirm whatever
Administrative Agent and Lenders may lawfully do in this regard, (ii) subject to
the notice provisions of the preceding paragraph, all rights to notice and
hearing prior to Administrative Agent's taking possession or control of, or to
Administrative Agent's or Lenders' reply, attachment or levy upon, the
Collateral, or any bond or security which might be required by any court prior
to allowing Administrative Agent or Lenders to exercise any of their remedies,
and (iii) the benefit of all valuation, appraisal and exemption laws. Borrowers
acknowledge they have been advised by counsel of their choice with respect to
the effect of the foregoing waivers and this Agreement, the other Loan Documents
and the transactions evidenced by this Agreement and the other Loan Documents.
Section 9. ADMINISTRATIVE AGENT
9.1 Appointment.
A. Appointment of Administrative Agent. BofA is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and Deutsche
Bank is hereby appointed Documentation Agent hereunder. Each Lender hereby
authorizes each Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Each Agent agrees to act upon the
express conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of
Agents and Lenders and no Loan Party shall have rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and
duties under this Agreement, Administrative Agent (other than as provided in
subsection 2.1E) shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for any Borrower or any other Loan Party.
B. Appointment of Supplemental Collateral Agents. It is the purpose
of this Agreement and the other Loan Documents that there shall be no violation
of any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case Administrative Agent deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "Supplemental Collateral
Agent" and collectively as "Supplemental Collateral Agents").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from any Borrower or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, such Borrower shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 Powers and Duties; General Immunity.
X. Xxxxxx; Duties Specified. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. An Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its Affiliates, agents or employees. No Agent shall have, by reason of
this Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender or any Borrower; and nothing in this Agreement or any of
the other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon an Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on
behalf of any Borrower to such Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Borrowers or any other Person liable for the
payment of any Obligations, nor shall such Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Tranche A Letter of
Credit Usage or the Tranche B Letter of Credit Usage or the component amounts
thereof.
C. Exculpatory Provisions. No Agent or any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent under or in connection with any of the Loan Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. An Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6).
D. Agents Entitled to Act as Lender. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, an
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. An Agent and its Affiliates may accept deposits
from, lend money to, acquire equity interests in and generally engage in any
kind of commercial banking, investment banking, trust, financial advisory or
other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from any Borrower for services in connection with this Agreement
and otherwise without having to account for the same to Lenders.
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal
of Creditworthiness.
Each Lender agrees that it has made its own independent investigation
of the financial condition and affairs of Company and its Subsidiaries in
connection with the making of the Loans and the issuance of Letters of Credit
hereunder and that it has made and shall continue to make its own appraisal of
the creditworthiness of Company and its Subsidiaries. No Agent shall have any
duty or responsibility, either initially or on a continuing basis, to make any
such investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Agents and the officers, directors, employees, agents, attorneys,
professional advisors and affiliates of each of them to the extent that any such
Person shall not have been reimbursed by Borrowers, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements and fees and
disbursements of any financial advisor engaged by Agents) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against an Agent or and other such Persons in exercising the powers, rights and
remedies of an Agent or performing duties of an Agent hereunder or under the
other Loan Documents or otherwise in its capacity as Agent in any way relating
to or arising out of this Agreement or the other Loan Documents; provided that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of an Agent resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to an Agent or any other such
Person for any purpose shall, in the opinion of such Agent, be insufficient or
become impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
9.5 Successor Agents.
Any Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders and Borrowers, and an Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to Borrowers and Administrative Agent and signed by Requisite Lenders.
Upon any such notice of resignation or any such removal, Requisite Lenders shall
have the right, upon five Business Days' notice to Borrowers, to appoint a
successor Agent. Upon the acceptance of any appointment as an Agent hereunder by
a successor Agent, that successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring or removed
Agent's resignation or removal hereunder as an Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was an Agent under this Agreement and the other Loan
Documents.
9.6 Collateral Documents and Guaranties.
Each Lender hereby further authorizes Administrative Agent, on behalf
of and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided that Administrative
Agent shall not (i) enter into or consent to any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or the Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all
Lenders); provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented, (b) release
any Subsidiary Guarantor from the Subsidiary Guaranty if all of the Capital
Stock of such Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented or (c)
subordinate the Liens of Administrative Agent, on behalf of Lenders, to any
Liens permitted by subsection 7.2A which are permitted under this Agreement to
be senior to such Liens of Administrative Agent. Anything contained in any of
the Loan Documents to the contrary notwithstanding, each Borrower,
Administrative Agent and each Lender hereby agree that (1) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce the Subsidiary Guaranty, it being understood
and agreed that all powers, rights and remedies under the Collateral Documents
and the Subsidiary Guaranty may be exercised solely by Administrative Agent for
the benefit of Lenders in accordance with the terms thereof, and (2) in the
event of a foreclosure by Administrative Agent on any of the Collateral pursuant
to a public or private sale, Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Administrative
Agent, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any Collateral payable by
Administrative Agent at such sale.
9.7 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to Company or any of the Subsidiaries of Company,
Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether Administrative Agent shall have made any demand on
Borrowers) shall be entitled and empowered, by intervention in such proceeding
or otherwise
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Loans and any other Obligations
that are owing and unpaid and to file such other papers or documents as may
be necessary or advisable in order to have the claims of Lenders and Agents
(including any claim for the reasonable compensation, expenses,
disbursements and advances of Lenders and Agents and their agents and
counsel and all other amounts due Lenders and Agents under subsections 2.3
and 10.2) allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lenders or to authorize Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.
Section 10. MISCELLANEOUS
10.1 Successors and Assigns; Assignments and Participations in Loans and
Letters of Credit.
A. General. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
the parties hereto and the successors and assigns of Lenders (it being
understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). Neither any Borrower's rights or
obligations hereunder nor any interest therein may be assigned or delegated by
any Borrower without the prior written consent of all Lenders (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void). No sale, assignment or transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Commitment and the
Loans of the Lender effecting such sale, assignment, transfer or participation.
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Affiliates of each of Agents and Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement. No Lender shall be permitted to
assign any portion of its rights or obligations hereunder to any other Person
if, upon giving effect to such assignment, Borrowers would be obligated to pay
such assignee amounts greater than the amounts, if any, which Borrowers would
have been required to pay such assigning Lender under subsection 2.6 or 2.7 if
such assignment did not occur.
B. Assignments.
(i) Amounts and Terms of Assignments. Any Lender may assign to one or
more Eligible Assignees all or any portion of its rights and obligations
under this Agreement; provided that (a), except (1) in the case of an
assignment of the entire remaining amount of the assigning Lender's rights
and obligations under this Agreement or (2) in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund of a Lender, the
aggregate amount of the Loan Exposure of the assigning Lender and the
assignee subject to each such assignment shall not be less than $5,000,000,
unless Administrative Agent otherwise consents, such consent not to be
unreasonably withheld or delayed, (b) each assignment shall represent the
assignment by the assigning Lender of a ratable portion of such Lender's
Tranche A Loan Exposure and Tranche A Commitments, on the one hand, and
Tranche B Loan Exposure and Tranche B Commitments, on the other hand, and
concurrently with any such assignment the assigning Lender shall assign to
the same assignee a ratable portion of such assigning Lender's Pooled
Facility Exposure, (c) the parties to each assignment shall execute and
deliver to Administrative Agent an Assignment Agreement, together with a
processing and recordation fee of $5,000 (unless the assignee is an
Affiliate or an Approved Fund of the assignor, in which case no fee shall
be required), and the Eligible Assignee, if it shall not be a Lender, shall
deliver to Administrative Agent a counterpart to the Intercreditor
Agreement (as a "Pooled Facility Lender" thereunder) and such other
documents and information reasonably requested by Administrative Agent,
including such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the assignee
under such Assignment Agreement may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii), and no such
assignment shall be effective unless and until such Assignment Agreement is
accepted by Administrative Agent and recorded in the Register as provided
in subsection 10.1B(ii), (d) any such Assignment Agreement shall include an
assignment by the assigning Lender and an assumption by the assignee of a
ratable portion of the assigning Lender's loss sharing obligations
thereunder, (e) except in the case of an assignment to another Lender, an
Affiliate of a Lender or an Approved Fund of a Lender, Administrative Agent
and each Issuing Lender shall have consented thereto (which consents shall
not be unreasonably withheld or delayed), and (f) no assignment by a
Defaulting Lender shall be permitted unless such Defaulting Lender or
assignee has funded such Defaulting Lender's defaulted funding obligations
with respect to Loans and participations in Letters of Credit, if any. Upon
such execution, delivery and consent, from and after the effective date
specified in such Assignment Agreement, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment Agreement, shall have
the rights and obligations of a Lender hereunder, (y) the assignee shall be
a party to the Intercreditor Agreement and, to the extent that rights and
obligations have been assigned to it pursuant to such Assignment Agreement,
shall have the rights and obligations of a "Pooled Facility Lender" and a
"Creditor Party" thereunder (as such terms are defined in the Intercreditor
Agreement) and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to
such Assignment Agreement, relinquish its rights (other than any rights
which survive the termination of this Agreement under subsection 10.9B) and
be released from its obligations under this Agreement and the Intercreditor
Agreement (and, in the case of an Assignment Agreement covering all or the
remaining portion of an 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 subsection 10.9; provided that,
anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Lender with respect to any
outstanding Letters of Credit such Lender shall continue to have all rights
and obligations of an Issuing Lender with respect to such Letters of Credit
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Notes, if any, to Administrative Agent for
cancellation, and thereupon new Notes shall, if so requested by the
assignee and/or the assigning Lender in accordance with subsection 2.1F, be
issued to the assignee and/or to the assigning Lender, substantially in the
form of Exhibit IV-A or Exhibit IV-B annexed hereto, as the case may be,
with appropriate insertions, to reflect the new Commitments and/or
outstanding Loans, as the case may be, of the assignee and/or the assigning
Lender. Other than as provided in subsection 10.5, any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 10.1B 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 subsection 10.1C. Except as otherwise
provided in this subsection 10.1, no Lender shall, as between Borrowers and
such Lender, be relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of participations in,
all or any part of its Commitments or Loans, Letters of Credit or
participations therein or the other Obligations owed to such Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon
its receipt of an Assignment Agreement executed by an Assigning Lender and
an assignee representing that it is an Eligible Assignee, together with an
executed counterpart to the Intercreditor Agreement and the processing and
recordation fee referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to United States federal income
tax withholding matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii), Administrative Agent
shall, if Administrative Agent has consented to the assignment evidenced
thereby (to the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in this
subsection 10.1B(ii).
C. Participations. Any Lender may, without the consent of, or notice
to, any Borrower or Administrative Agent, sell participations to one or more
Persons (other than a natural Person or any Borrower or any of its Affiliates)
in all or a portion of such Lender's rights and/or obligations under this
Agreement; provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii)
Borrowers, Administrative Agent and Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
directly affecting (i) the extension of the Stated Maturity Date or (ii) a
reduction of the principal amount of or the rate of interest payable on any Loan
allocated to such participation. Subject to the further provisions of this
subsection 10.1C, each Borrower agrees that each Participant shall be entitled
to the benefits of subsections 2.6D and 2.7 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection 10.1B.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 10.4 as though it were a Lender, provided such
Participant agrees to be subject to subsection 10.5 as though it were a Lender.
A Participant shall not be entitled to receive any greater payment under
subsections 2.6D and 2.7 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 Borrowers' prior
written consent. A Participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of subsection 2.7.
D. Pledges and Assignments. Any Lender may at any time pledge or
assign a security interest in all or any portion of its Loans, and the other
Obligations owed to such Lender, to secure obligations of such Lender, including
any pledge or assignment to secure obligations to any Federal Reserve Bank;
provided that (i) no Lender shall be relieved of any of its obligations
hereunder as a result of any such assignment or pledge and (ii) in no event
shall any assignee or pledgee be considered to be a "Lender" or be entitled to
require the assigning Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.18.
F. Agreements of Lenders. Each Lender listed on the signature pages
hereof hereby agrees (i) that it is an Eligible Assignee described in clause (i)
of the definition thereof; (ii) that it has experience and expertise in the
making of loans such as the Loans; and (iii) that it will make its Loans for its
own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 10.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the agreements of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
10.2 Expenses.
Whether or not the transactions contemplated hereby shall be
consummated, Borrowers agree, jointly and severally, to pay promptly (i) all the
actual and reasonable costs and expenses of negotiation, preparation and
execution of the Loan Documents and any consents, amendments, waivers or other
modifications thereto; (ii) all the costs of furnishing all opinions by counsel
for Loan Parties (including any opinions requested by Agents or Lenders as to
any legal matters arising hereunder) and of Borrowers' performance of and
compliance with all agreements and conditions on their part to be performed or
complied with under this Agreement and the other Loan Documents including with
respect to confirming compliance with environmental and insurance requirements;
(iii) the reasonable fees, expenses and disbursements of advisors and counsel to
Agents (including O'Melveny & Xxxxx LLP, counsel to Agents, and Ernst & Young
Corporate Finance LLC) and Lenders and each counsel (other than internal
counsel) retained by any Lender (to the extent, in the case of counsel retained
by such individual Lenders, incurred prior to or on the Closing Date or after
the occurrence of any Potential Event of Default or in connection with any
consent, amendment, waiver or other modification to the Loan Documents) in
connection with the negotiation, preparation, execution, interpretation or
administration of the Loan Documents and any proposed consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by any Borrower; (iv) all the actual costs and reasonable expenses of
creating and perfecting Liens in favor of Administrative Agent on behalf of
Lenders pursuant to any Collateral Document, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees, title
insurance premiums, and reasonable fees, expenses and disbursements of counsel
to Administrative Agent and of counsel providing any opinions that Agents or
Requisite Lenders may request in respect of the Collateral Documents or the
Liens created pursuant thereto; (v) all the actual costs and reasonable fees,
expenses and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained by
Agents or their counsel; (vi) all the actual costs and reasonable expenses
incurred in connection with the custody or preservation of any of the
Collateral; (vii) all other actual and reasonable costs and expenses incurred by
Agents in connection with the syndication of the Commitments; and (viii) all
costs and expenses, including reasonable attorneys' fees and costs of
settlement, incurred by Agents and Lenders in enforcing any Obligations of or in
collecting any payments due from any Loan Party hereunder or under the other
Loan Documents (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty) or in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of a
"work-out" or pursuant to the Chapter 11 Cases or any other insolvency or
bankruptcy proceedings. Without limiting the generality of the foregoing, if, at
any time or times, regardless of whether an Event of Default has occurred, any
Agent or any Lender shall incur reasonable expenses itself or employ counsel or
other professional advisors, including environmental, financial and management
consultants, for advice or other representation or shall incur legal, appraisal,
accounting, consulting or other reasonable costs and expenses in connection
with:
(a) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by any Agent, any Bank, any Borrower or any other
Person) in any way relating to the Collateral, any of the Loan
Documents, or any other agreements to be executed or delivered in
connection therewith or herewith, including any litigation, contest,
dispute, suit, case, proceeding or action, and any appeal or review
thereof, in connection with a case or proceeding commenced by or
against any Borrower or any other Person that may be obligated to any
Agent or any Lender by virtue of the Loan Documents, under the
Bankruptcy Code, or any other applicable Federal, state, or foreign
bankruptcy or other similar law;
(b) any attempt to enforce any rights or remedies of any Agent or
any Lender against any Borrower, or any other Person that may be
obligated to any Agent or any Lender by virtue of being a party to any
of the Loan Documents;
(c) any attempt to appraise, inspect, verify, protect, collect,
sell, liquidate or otherwise dispose of the Collateral, including
obtaining and reviewing any environmental audits or reports provided
for under this Agreement or any of the other Loan Documents; or
(d) any Chapter 11 Case (including the on-going monitoring by
Administrative Agent of any Chapter 11 Case, including attendance by
Administrative Agent and their counsel at hearings or other
proceedings and the on-going review of documents filed with a Court in
respect thereof) and Administrative Agent's and Lenders' interests
with respect to any Borrower (including the on-going review of any
Borrower's business, assets, operations, prospects or financial
condition as Administrative Agent shall deem necessary), the
Collateral or the Obligations;
then, and in any such event, the reasonable fees and expenses incurred by such
Agent, such Lender and such attorneys and other professional advisors and
consultants arising from such services, including those of any appellate
proceedings, and all reasonable expenses, costs, charges and other fees incurred
by such counsel or other professionals in any way or respect arising in
connection with or relating to any of the events or actions described in this
subsection 10.2 shall be payable, on demand, by Borrowers to such Agent and such
Lender and shall be additional Obligations secured by the Collateral and under
the other Loan Documents. Without limiting the generality of the foregoing, such
expenses, costs, charges and fees may include: paralegal fees, costs and
expenses; accountants' and experts' fees, costs and expenses; appraisers' fees,
costs and expenses; management and other consultants' fees, costs and expenses;
court costs and expenses; photocopying and duplicating expenses; court reporter
fees, costs and expenses; long distance telephone charges; communication
charges, air express charges; telegram charges; secretarial overtime charges;
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such legal or other professional services.
10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Borrowers jointly and severally agree to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless Agents and Lenders
(including Issuing Lenders), and the officers, directors, employees, agents and
affiliates of Agents and Lenders (collectively called the "Indemnitees"), from
and against any and all Indemnified Liabilities (as hereinafter defined);
provided that Borrowers shall not have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any
and all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the Chapter 11
Cases or the transactions contemplated hereby or thereby (including Lenders'
agreement to make the Loans hereunder or the use or intended use of the proceeds
thereof or the issuance of Letters of Credit hereunder or the use or intended
use of any thereof, the failure of an Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Government Authority, or
any enforcement of any of the Loan Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty), (ii) the statements contained in the commitment letter
delivered by any Lender with respect thereto, or (iii) any Environmental Claim
or any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Borrowers shall
contribute the maximum portion that they are permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 Set-Off.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, and notwithstanding the
provisions of Section 362 of the Bankruptcy Code and without application or
motion to, or order from, the Bankruptcy Court, upon the occurrence of any Event
of Default each Lender is hereby authorized by Company at any time or from time
to time, without notice to Company or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender or any Affiliate
of such Lender to or for the credit or the account of Company and each other
Loan Party against and on account of the obligations and liabilities of Company
or any other Loan Party to that Lender (or any Affiliate of such Lender) or to
any other Lender (or any Affiliate of any other Lender) under this Agreement,
the Letters of Credit and participations therein and the other Loan Documents,
including all claims of any nature or description arising out of or connected
with this Agreement, the Letters of Credit and participations therein or any
other Loan Document, irrespective of whether or not (i) that Lender shall have
made any demand hereunder or (ii) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to Section 8 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured.
10.5 Ratable Sharing.
A. Tranche A Lenders. Tranche A Lenders hereby agree among themselves
that if any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms of this
Agreement), by realization upon security, through the exercise of any right of
set-off or banker's lien, by counterclaim or cross action or by the enforcement
of any right under the Loan Documents or otherwise, or as adequate protection of
a deposit treated as cash collateral under the Bankruptcy Code, receive payment
or reduction of a proportion of the aggregate amount of principal, interest,
amounts payable in respect of Tranche A Loans, Tranche A Letters of Credit, fees
and other amounts then due and owing to that Tranche A Lender hereunder or under
the other Loan Documents with respect to Tranche A Obligations (collectively,
the "Tranche A Aggregate Amounts Due" to such Tranche A Lender) that is greater
than the proportion received by any other Tranche A Lender in respect of the
Tranche A Aggregate Amounts Due to such other Tranche A Lender, then the Tranche
A Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Tranche A Lender of the receipt of such
payment and (ii) apply a portion of such payment to purchase assignments (which
it shall be deemed to have purchased from each seller of an assignment
simultaneously upon the receipt by such seller of its portion of such payment)
of the Tranche A Aggregate Amounts Due to the other Tranche A Lenders so that
all such recoveries of Tranche A Aggregate Amounts Due shall be shared by all
Tranche A Lenders in proportion to the Tranche A Aggregate Amounts Due to them;
provided that if all or part of such proportionately greater payment received by
such purchasing Tranche A Lender is thereafter recovered from such Tranche A
Lender, those purchases shall be rescinded and the purchase prices paid for such
assignments shall be returned to such purchasing Tranche A Lender ratably to the
extent of such recovery, but without interest. Each Borrower expressly consents
to the foregoing arrangement and agrees that any purchaser of an assignment so
purchased may exercise any and all rights of a Lender as to such assignment as
fully as if that Tranche A Lender had complied with the provisions of subsection
10.1B with respect to such assignment. In order to further evidence such
assignment (and without prejudice to the effectiveness of the assignment
provisions set forth above), each purchasing Tranche A Lender and each selling
Tranche A Lender agree to enter into an assignment agreement at the request of a
selling Tranche A Lender or a purchasing Tranche A Lender, as the case may be,
in form and substance reasonably satisfactory to each such Tranche A Lender.
B. Tranche B Lenders. Subject at all times to their obligations under
subsection 2.12, Tranche B Lenders hereby agree among themselves that if any of
them shall, whether by voluntary payment (other than a voluntary prepayment of
Loans made and applied in accordance with the terms of this Agreement), by
realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest,
amounts payable in respect of Tranche B Loans, Tranche B Letters of Credit, fees
and other amounts then due and owing to that Tranche B Lender hereunder or under
the other Loan Documents with respect to Tranche B Obligations (collectively,
the "Tranche B Aggregate Amounts Due" to such Tranche B Lender) that is greater
than the proportion received by any other Tranche B Lender in respect of the
Tranche B Aggregate Amounts Due to such other Tranche B Lender, then the Tranche
B Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Tranche B Lender of the receipt of such
payment and (ii) apply a portion of such payment to purchase assignments (which
it shall be deemed to have purchased from each seller of an assignment
simultaneously upon the receipt by such seller of its portion of such payment)
of the Tranche B Aggregate Amounts Due to the other Tranche B Lenders so that
all such recoveries of Tranche B Aggregate Amounts Due shall be shared by all
Tranche B Lenders in proportion to the Tranche B Aggregate Amounts Due to them;
provided that if all or part of such proportionately greater payment received by
such purchasing Tranche B Lender is thereafter recovered from such Tranche B
Lender, those purchases shall be rescinded and the purchase prices paid for such
assignments shall be returned to such purchasing Tranche B Lender ratably to the
extent of such recovery, but without interest. Each Borrower expressly consents
to the foregoing arrangement and agrees that any purchaser of an assignment so
purchased may exercise any and all rights of a Lender as to such assignment as
fully as if that Tranche B Lender had complied with the provisions of subsection
10.1B with respect to such assignment. In order to further evidence such
assignment (and without prejudice to the effectiveness of the assignment
provisions set forth above), each purchasing Tranche B Lender and each selling
Tranche B Lender agree to enter into an assignment agreement at the request of a
selling Tranche B Lender or a purchasing Tranche B Lender, as the case may be,
in form and substance reasonably satisfactory to each such Tranche B Lender.
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes or the Loan Documents, and no consent to any
departure by any Borrower therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the consent of (a)
each Lender with Obligations directly affected (whose consent shall be required
for any such amendment, modification, termination or waiver in addition to that
of Requisite Lenders) (1) reduce the principal amount of any Loan, (2) increase
the maximum aggregate amount of Letters of Credit, (3) postpone the scheduled
final maturity date of any Loan (other than pursuant to an extension of the
"Stated Maturity Date" in accordance with the definition of such term), (4)
postpone the date on which any interest or any fees are payable, (5) decrease
the interest rate borne by any Loan (other than any waiver of any increase in
the interest rate applicable to any of the Loans pursuant to subsection 2.2E) or
the amount of any fees payable hereunder (including any change in the manner in
which any financial ratio used in determining any interest rate or fee is
calculated that would result in a reduction of any such rate or fee), (7) reduce
the amount or postpone the due date of any amount payable in respect of any
Letter of Credit, (8) extend the expiration date of any Letter of Credit beyond
the Termination Date (except as set forth in subsection 3.1A(ii) for Tranche B
Letters of Credit), (9) change in any manner the obligations of Lenders relating
to the purchase of participations in Letters of Credit, or (10) change in any
manner or waive subsection 10.1B(i)(b); (b) each Lender, (1) change in any
manner the definition of "Pro Rata Share" or the definition of "Requisite
Lenders" (except for any changes resulting solely from an increase in
Commitments approved by Requisite Lenders), (2) change in any manner any
provision of this Agreement that, by its terms, expressly requires the approval
or concurrence of all Lenders, (3) increase the maximum duration of Interest
Periods permitted hereunder beyond 3 months, (4) release any Lien granted in
favor of Administrative Agent with respect to all or substantially all of the
Collateral, release any substantial portion of Borrowers from their obligations
under this Agreement or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guaranty, in each case
other than in accordance with the terms of the Loan Documents, or (5) change in
any manner or waive the provisions contained in subsection 8.1 or this
subsection 10.6; or (c) Administrative Agent, Documentation Agent and each
Issuing Lender, change in any manner the definition of "Eligible Assignee". In
addition, (i) any amendment, modification, termination or waiver of any of the
provisions contained in Section 4 shall be effective only if evidenced by a
writing signed by or on behalf of Administrative Agent and Requisite Lenders,
(ii) no amendment, modification, termination or waiver of any provision of any
Note shall be effective without the written concurrence of the Lender which is
the holder of that Note, (iii) no amendment, modification, termination or waiver
of any provision of Section 3 shall be effective without the written concurrence
of Administrative Agent and Documentation Agent and, with respect to the
purchase of participations in Letters of Credit, without the written concurrence
of each Issuing Lender that has issued an outstanding Letter of Credit or has
not been reimbursed for a payment under a Letter of Credit, (iv) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Administrative Agent or Documentation Agent shall be
effective without the written concurrence of Administrative Agent or
Documentation Agent, as the case may be, (v) no amendment, modification,
termination or waiver of the definition of "Requisite Class Lenders", or of
subsections 2.4, 2.10, 2.12 or 10.5, that disproportionately disadvantages the
Tranche B Lenders or the Tranche A Lenders relative to the Tranche A Lenders or
the Tranche B Lenders, respectively, shall be effective without the written
concurrence of the Requisite Class Lenders of the disproportionately
disadvantaged Class, (vi) no amendment or modification of the definition of
"Tranche A Letter of Credit Sublimit" that would have the effect of increasing
or decreasing the Tranche A Letter of Credit Sublimit shall be effective without
the written concurrence of the Requisite Class Lenders of the Class of Tranche A
Lenders (and the consent of Requisite Lenders shall not be required for such an
amendment or modification), (vii) no Commitment of a Lender shall be increased
without the consent of such Lender, (viii) no amendment, modification,
termination or waiver of the provisions contained in subsection 10.1A or
subsection 10.1B shall be effective without the written concurrence of
Supermajority Lenders, (ix) no amendment, modification, termination or waiver of
any provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of the applicable Issuing Lender shall be effective
without the written concurrence of such Issuing Lender, (x) no amendment,
modification, termination or waiver of the provisions contained in subsection
7.7(ix) or the last sentence of subsection 7.10 shall be effective without the
written concurrence of Tranche B Lenders having or holding (in their capacity as
"Opt-Out Lenders" under the Prepetition Credit Agreement) more than 50% of the
aggregate "Opt-Out Facility Exposure" of all such Tranche B Lenders with respect
to the relevant "Opt-Out Facility" (as such terms are defined in the Prepetition
Credit Agreement), (xi) no amendment, modification, termination or waiver of the
definition of "Supermajority Lenders" (except for any changes resulting solely
from an increase in Commitments approved by Requisite Lenders) or any other
provision of this Agreement which, by its terms, expressly requires the approval
or concurrence of Supermajority Lenders shall be effective without the written
concurrence of Supermajority Lenders, (xii) no amendment, modification,
termination or waiver of the definition of "Supermajority Tranche A Lenders" or
any other provision of this Agreement which, by its terms, expressly requires
the approval or concurrence of Supermajority Tranche A Lenders shall be
effective without the written concurrence of Supermajority Tranche A Lenders,
(xiii) no amendment, modification, termination or waiver of the provision of the
definition of "Final Borrowing Order" (if such amendment, modification,
termination or waiver would have the effect of requiring consent of less than
all Lenders to an amendment, supplement or modification to such order resulting
in less than 50% of the original Tranche B Loan Exposure of all Lenders having
the priority and administrative claim status described in subsection 2.10 as
being applicable to the Obligations) or of subsection 2.4A(iv)(a) (if such
amendment, modification, termination or waiver would have the effect of reducing
the portion of any Mandatory Payment from Net Asset Sale Proceeds required to be
applied to repay Tranche A Loans or reducing below 75% the portion of any such
Mandatory Payment required to be applied to permanently reduce Tranche A
Commitments (to the extent such Tranche A Commitments exceed an amount equal to
the sum of (x) the Tranche A Loss Sharing Sublimit (after giving effect to any
reduction thereto arising from the repayment of outstanding Tranche A Loss
Sharing Loans) and (y) the Tranche A Letter of Credit Usage)) shall be effective
without the written concurrence of all Lenders, and (xiv) no amendment,
modification, termination or waiver which would have the effect of increasing
the portion of the aggregate Tranche A Commitments available for Tranche A Loans
(other than Tranche A Loss Sharing Loans) and/or Tranche A Letters of Credit by
reducing the amount of the Tranche A Loss Sharing Sublimit shall be effective
without the written concurrence of all Tranche A Lenders. Administrative Agent
may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that Lender.
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given. No notice to or demand on any
Borrower or Borrowers in any case shall entitle any Borrower or Borrowers to any
other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Borrowers, on Borrowers.
Administrative Agent agrees that promptly after the effectiveness of any
amendment, termination, supplement, waiver or other modification of this
Agreement it shall provide, or cause to be provided, to each Lender a copy
thereof to the extent such a copy is available to Administrative Agent. The
parties hereto hereby agree that amendments, supplements, modifications,
terminations, waivers or consents effected in accordance with this subsection
10.6 that are not material in the judgment of Borrowers and Agents (which shall
include any amendment, supplement, modification, waiver or consent to the
Monthly Budget) shall not require approval or consent of the Bankruptcy Court.
10.7 Independence of Covenants.
All covenants hereunder shall be given independent effect so that if
a particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 Notices; Effectiveness of Signatures.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided that notices to Administrative
Agent and any Issuing Lender shall not be effective until received. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or (i) as to Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent. Electronic mail and Internet
and intranet websites may be used to distribute routine communications, such as
financial statements and other information as provided in subsection 6.1;
provided, however, that no signature with respect to any notice, request,
agreement, waiver, amendment or other document or any notice that is intended to
have binding effect may be sent by electronic mail.
Loan Documents and notices under the Loan Documents may be
transmitted and/or signed by telefacsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as an original copy with manual signatures and shall be binding on
all Loan Parties, Agents and Lenders. Administrative Agent may also require that
any such documents and signature be confirmed by a manually-signed copy thereof;
provided, however, that the failure to request or deliver any such
manually-signed copy shall not affect the effectiveness of any facsimile
document or signature.
10.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7,
3.5A, 10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set forth
in subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the Loans,
the cancellation or expiration of the Letters of Credit and the reimbursement of
any amounts drawn thereunder, and the termination of this Agreement (and the
benefits to a Lender of such agreements of Borrowers shall survive such Lender's
ceasing to be a party hereto pursuant to subsection 10.1B).
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Agents or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 Obligations Several; Independent Nature of Lenders' Rights; Damage
Waiver.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders, or
Lenders and Company, as a partnership, an association, a Joint Venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
To the extent permitted by law, each Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with or as a result of this
Agreement (including subsection 2.1D hereof), any other Loan Document, any
transaction contemplated by the Loan Documents, any Letter of Credit or Loan or
the use of proceeds thereof.
10.13 Headings.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.14 Applicable Law.
SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER OR ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE
APPLICATION OF ANOTHER LAW.
10.15 Construction of Agreement.
Each of the parties hereto acknowledges that it has been represented
by counsel in the negotiation and documentation of the terms of this Agreement,
that it has had full and fair opportunity to review and revise the terms of this
Agreement, and that this Agreement has been drafted jointly by all of the
parties hereto. Accordingly, each of the parties hereto acknowledges and agrees
that the terms of this Agreement shall not be construed against or in favor of
another party.
10.16 Consent to Jurisdiction and Service of Process.
SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX,
XXXXXX XXX XXXX XX XXX XXXX (AS ANY AGENT, AGENTS, LENDER OR LENDERS BRINGING
SUCH ACTION MAY ELECT IN ITS OR THEIR SOLE DISCRETION). BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS (AND SUBMITS TO) GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN
THE BANKRUPTCY COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.6 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
10.17 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.18 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant
to the requirements of this Agreement that has been identified as confidential
by Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Borrowers that in any event
a Lender may make (a) disclosures to Affiliates and professional advisors of
such Lender, (b) disclosures reasonably required by (i) any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of any Loans or any participations therein, or (ii) any
direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors provided that such assignee,
transferee, participant, contractual counterparty or professional advisor agrees
to keep such information confidential to the same extent required of Lenders
hereunder, (c) disclosures to any court or tribunal (whether or not pursuant to
subpoena) in connection with any action arising out of or related to this
Agreement, or (d) disclosures required or requested by any Government Authority
or representative thereof or pursuant to legal process; provided that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify Company of any request by any Government Authority or representative
thereof (other than any such request in connection with any examination of such
Lender by such Government Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
10.19 Release of Parties; Waivers.
A. Each Borrower, on behalf of itself and each of its Subsidiaries
(collectively, the "Releasors"), hereby releases, remises, acquits and forever
discharges each Agent, each Lender (in its capacity as a Lender hereunder and as
a lender, collateral agent, depository or letter of credit issuer and in any
other capacity under or in connection with the Prepetition Credit Documents, any
"Pooled Facility" or any "Opt-Out Facility" (as such terms are defined in the
Prepetition Credit Agreement)), each other Prepetition Lender (in its capacity
as a lender, collateral agent, depository or letter of credit issuer and in any
other capacity under or in connection with the Prepetition Credit Documents, any
"Pooled Facility" or any "Opt-Out Facility" (as such terms are defined in the
Prepetition Credit Agreement)), and each of their respective employees, agents,
representatives, consultants, attorneys, fiduciaries, servants, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, related corporate divisions, participants and
assigns (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, setoffs, recoupments, counterclaims,
defenses, damages and expenses of any and every character, known or unknown,
suspected or unsuspected, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date of execution hereof, and in
any way directly or indirectly arising out of or in any way connected to this
Agreement, any of the other Loan Documents, the Prepetition Credit Documents,
the "Pooled Facility Documents" or the "Opt-Out Facility Documents" (as such
terms are defined in the Prepetition Credit Agreement) or the administration or
enforcement of any of such documents (all of the foregoing hereinafter called
the "Released Matters"). Each Releasor acknowledges that the agreements in this
subsection are intended to be in full satisfaction of all or any alleged
injuries or damages suffered or incurred by such Releasor arising in connection
with the Released Matters and constitute a complete waiver of any right of
setoff or recoupment, counterclaim or defense of any nature whatsoever which
arose prior to the Closing Date to payment or performance of the Obligations.
Each Releasor represents and warrants that it has no knowledge of any claim by
it against the Released Parties or of any facts, or acts or omissions of the
Released Parties which on the date hereof would be the basis of a claim by the
Releasors against the Released Parties which is not released hereby. Each
Releasor represents and warrants that it has not purported to transfer, assign,
pledge or otherwise convey any of its right, title or interest in any Released
Matter to any other person or entity and that the foregoing constitutes a full
and complete release of all Released Matters. Releasors have granted this
release freely, and voluntarily and without duress.
B. BORROWERS HEREBY WAIVE ANY AND ALL RIGHTS TO CHALLENGE, BY WAY OF
CLAIMS, DEMANDS, AVOIDANCE, SUBORDINATION, OTHER CAUSES OF ACTION, ADVERSARY
PROCEEDINGS OR OTHER LITIGATION, THE AMOUNT, VALIDITY, PERFECTION, PRIORITY OR
ENFORCEABILITY OF, OR TO ASSERT ANY DEFENSE, OBJECTION, COUNTERCLAIM OR OFFSET
TO, THE OBLIGATIONS, THE PREPETITION OBLIGATIONS, THE LIENS AND SECURITY
INTERESTS GRANTED BY THE LOAN PARTIES TO ADMINISTRATIVE AGENT (FOR THE BENEFIT
OF THE LENDERS) UPON ALL OF THE COLLATERAL, OR THE LIENS AND SECURITY INTERESTS
GRANTED BY THE PREPETITION LOAN PARTIES TO THE PREPETITION AGENT (FOR THE
BENEFIT OF THE PREPETITION LENDERS) UPON ALL OF THE PREPETITION COLLATERAL.
C. Nothing in subsection 10.19A or 10.19B shall constitute a waiver
of the rights of the official committee for the unsecured creditors, if any,
appointed in the Chapter 11 Cases or any other party in interest to challenge
the validity, enforceability, nonavoidability, perfection or priority of the
Prepetition Obligations or the Liens granted to the Prepetition Agent (for the
benefit of the Prepetition Lenders) on the Prepetition Collateral during the
period prior to the date that is 90 days after the appointment of such
committee.
D. In accordance with the Interim Borrowing Orders and the Final
Borrowing Order, each Borrower hereby irrevocably waives on behalf of itself and
its estate, and shall cause each of its Subsidiaries to waive, any and all
claims to any surcharge of the security interests of Administrative Agent in the
Collateral under Section 506(c) of the Bankruptcy Code.
E. Each Borrower hereby irrevocably waives on behalf of itself and
its estate any and all right pursuant to Sections 364(c) or 364(d) of the
Bankruptcy Code or otherwise to grant any Lien of equal or greater priority than
the Lien securing the Obligations, or to approve a claim of equal or greater
priority than the Obligations, or except as permitted in the Interim Borrowing
Order or Final Borrowing Order or the Project Cash Collateral Order, to seek use
of cash collateral.
10.20 No Fiduciary Duty.
No Agent nor any Lender has or shall have, by reason of this
Agreement or any of the Financing Documents, a fiduciary relationship in respect
of, or a fiduciary duty to, any Borrower, Borrowers, any other Loan Party or
Loan Parties, and the relationship between Administrative Agent, the other
Agents and Lenders, on one hand, and Company, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor.
10.21 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.22 Parties Including Trustees; Court Proceedings.
This Agreement and the other Loan Documents shall be binding upon,
and inure to the benefit of, the successors of each Agent and each Lender, and
the assigns, transferees and endorsees of each Agent and each Lender. The
security interests and Liens created in this Agreement, the Collateral Documents
and the other Loan Documents shall be and remain valid and perfected, and the
claims of each Agent and Lenders hereunder valid and enforceable in accordance
with the terms hereof, notwithstanding the discharge of any Borrower pursuant to
11 U.S.C. ss. 1141, the conversion of any Chapter 11 Case or any other
bankruptcy case of any Loan Party to a case under Chapter 7 of the Bankruptcy
Code, the dismissal of any Chapter 11 Case or any subsequent Chapter 7 case, the
release of any Collateral from the property of any Loan Party, or the entry of
any order which may be entered in the Chapter 11 Cases, including any order to
the foregoing effect or appointing a trustee or responsible officer or examiner
(including an examiner with expanded powers), and the terms and provisions of
this Agreement, as well as (to the maximum extent permitted by law) the
priorities in payment granted pursuant to the Interim Borrowing Order, the Final
Borrowing Order, this Agreement and the other Loan Documents, shall continue in
full force and effect notwithstanding the entry of any such order, until the
indefeasible payment in full of all Obligations in accordance with the terms of
this Agreement and the other Loan Documents, the termination of all Commitments
and the cancellation or expiration of all Letters of Credit. If any or all of
the provisions of this Agreement, the Interim Borrowing Order or the Final
Borrowing Order are hereafter reversed, modified, vacated or stayed by
subsequent order of the Bankruptcy Court or any other court, such reversal,
stay, modification or vacatur shall not affect the validity and enforceability
of any Obligation, debt or claim incurred or any security interest or Lien or
the priority that is or was incurred or granted pursuant to this Agreement, the
other Loan Documents, the Interim Borrowing Order or the Final Borrowing Order,
and notwithstanding any stay, reversal, modification or vacatur of this
Agreement, the Interim Borrowing Order or the Final Borrowing Order, any
Obligations arising prior to the effective date of such stay, reversal,
modification or vacatur shall be governed in all respects by the original
provisions of this Agreement, the Interim Borrowing Order, the Final Borrowing
Order and the Loan Documents, as the case may be, and Agents and the Lenders
shall be entitled to all of their respective rights, privileges and benefits
hereunder and under the Loan Documents, including the priorities, rights and
remedies granted herein and therein to or for their benefit with respect to all
Obligations. The security interests and Liens created in this Agreement, the
Collateral Documents and the other Loan Documents shall be and remain valid and
perfected without the necessity that Administrative Agent file financing
statements or otherwise perfect its security interests or Liens under applicable
law. This Agreement, the claims of Agents and Lenders hereunder, and all
security interests or Liens created hereby or pursuant hereto or by or pursuant
to the Collateral Documents or any other Loan Document shall at all times be
binding upon Loan Parties, the estates of Loan Parties and any trustee appointed
in any Chapter 11 Case or any Chapter 7 case, or any other successor in interest
to Borrowers. This Agreement shall not be subject to Section 365 of the
Bankruptcy Code.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
COVANTA ENERGY CORPORATION, as Debtor and
Debtor-In-Possession
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Senior Vice President, Legal
Affairs and Secretary
Each of the entities named on Schedule A annexed
hereto, as Debtor and Debtor-In-Possession
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Authorized Officer
Each of the entities named on Schedule B annexed
hereto, as Debtor and Debtor-In-Possession
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Authorized Officer
Notice Address for each Borrower:
c/o Covanta Energy Group, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent and Co-Arranger
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Notice Address:
Attention: Xxxxx Xxxxx
1 Independence Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
DEUTSCHE BANK AG, NEW YORK BRANCH, As
Documentation Agent and Co-Arranger and as a
Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director,
Head of Workout
Notice Address:
Attention: Xxxxx X. Xxxxx
Deutsche Bank AG
New York Branch
00 Xxxx 00xx Xx., 0xx Xx
Xxx Xxxx, XX 00000
ABN AMRO BANK N.V.,
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
Notice Address:
Attention: Credit Administration
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000-0000
BANC OF AMERICA SECURITIES LLC, as agent for
BANK OF AMERICA, N.A. as a Lender
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
By:
-----------------------------------------
Notice Address:
Attention: Xxx Xxxxxx
Bank of America
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx, Xx.
Title: Director
Notice Address:
Attention: Xxxxxx X. Xxxxxxxxxxx, Xx.
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
BAYERISCHE HYPO-UND VEREINSBANK AG, as a Lender
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ C. Xxxxxxxx Xxxx
-----------------------------------------
Name: C. Xxxxxxxx Xxxx
Title: Director
Notice Address:
Attention: Xxxxxxxxx Xxxxxxxx
Bayerische Hypo-und Vereinsbank AG
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
BNP PARIBAS,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: XXXXXXX XXXXXXXX
Title: VICE PRESIDENT
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------------
Name: XXXXXXXX XXXXX
Title: VICE PRESIDENT
Notice Address:
Attention: XXXXXXX XXXXXXXX
BNP PARIBAS
000 XXXXXXX XXXXXX
XXX XXXX, XX 00000
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxx Xxxxxxx
Commerzbank AG
2 World Financial Center
Xxx Xxxx, XX 00000
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxxxxx
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President
Notice Address:
Attention: Xxxxxxx X. X'Xxxxx
Fleet National Bank
000 Xxxxxxx Xxxxxx
Mail Stop: MA DE 10006A
Xxxxxx, XX 00000
HSBC BANK USA, as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxxx
HSBC Bank USA
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
THE HUNTINGTON NATIONAL BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Attention: Xxxxxx X. Xxxxxx
The Huntington National Bank
000 Xxxxxx Xxx. XX00
Xxxxxxxxx, XX 000000
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Notice Address:
Attention: Xxxx Xxxxxx
The Industrial Bank of Japan Trust
Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as a Lender
By: /s/ Xxxxxxx Lancia
-----------------------------------------
Name: Xxxxxxx Lancia
Title: Vice President
Notice Address:
Attention: Xxxxxxx Lancia
JPMorgan Chase Bank
000 Xxxxxxx Xxxxxx
Special Loan - 9
Xxx Xxxx, XX 00000
IIB Bank Ltd, IFSC Branch, as a Lender
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Director/ Authorized Signatory
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director/ Authorized Signatory
Notice Address:
Attention: Xxxx X'Xxxxxx
KBC Finance Ireland
KBC House, I.F.S.C.,
Xxxxxx 0, Xxxxxxx
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Corporate Finance Division
Structured Finance Department
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Corporate Finance Division
Structured Finance Department
Notice Address:
Attention: Xxxxx X. Xxxxx
Landesbank Hessen-Thuringen
Girozentrale
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
MIZUHO CORPORATE BANK, LTD., NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
Notice Address:
Attention: Xxxxx X. Xxx
Mizuho Corporate Bank, Ltd.,
New York Branch
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE ROYAL BANK OF SCOTLAND, plc, as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President,
Specialized Lending Services
Notice Address:
Attention: Xxxxxx Xxxxxx
Specialized Lending Services
00xx Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SANPAOLO IMI S.p.A., as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: GM
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: SVP
Notice Address:
Attention: Xxxxxx Xxxxxxx
SAN PAOLO IMI S.P.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE SUMITOMO TRUST & BANKING CO., LTD. NY BRANCH,
as a Lender
By:/s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice Presudebt
Notice Address:
Attention: Xxxxxxxxx X. Xxxxx
The Sumitomo Trust & Banking
Co., Ltd., NY Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
SUNTRUST BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
Notice Address:
Attention: Xxxxx Xxxxxxxxxx
SunTrust Bank
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE BANK OF NEW YORK, as a Lender
By:/s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Notice Address:
Attention: Xxxxx X. Xxxx
Bank of New York
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Manager CR Administrator
Notice Address:
Attention: Xxxx X. Xxxxx
Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Director
Recovery Management
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Director
Recovery Management
Notice Address:
Attention: Xxxxx Xxxxxx
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
UFJ BANK LIMITED, NEW YORK BRANCH
(formerly known as The Sanwa Bank,
Limited), as a Lender
By: /s/ Nobud Harima
---------------------------------
Name: Nobud Harima
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
(formerly known as Firstar Bank, N.A.),
as a Lender
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Notice Address:
Attention: Xxxx X. Xxxxxxx
Firstar Bank, N.A.
7th Floor - Special Assets
Xxx Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxxx
Xx. Xxxxx, XX 00000
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Notice Address:
Attention: Xxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Associate Director
Notice Address:
Attention: Xxxxxx X. Xxxxx III
Westdeutsche Landesbank
Girozentrale
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Schedule A
Other Borrowers
1. AMOR14 Corp.
2. Covanta Acquisition, Inc.
3. Covanta Alexandria/Arlington, Inc.
4. Covanta Babylon, Inc.
5. Covanta Bessemer, Inc.
6. Covanta Bristol, Inc.
7. Covanta Xxxxxxxxxx Environmental Support, Inc.
8. Covanta Energy Americas, Inc.
9. Covanta Energy Construction, Inc.
10. Covanta Energy Resource Corp.
11. Covanta Energy Sao Xxxxxxxx, Inc.
12. Covanta Energy Services, Inc.
13. Covanta Energy West, Inc.
14. Covanta Engineering Services, Inc.
15. Covanta Fairfax, Inc.
16. Covanta Financial Services, Inc.
17. Covanta Geothermal Operations Holdings, Inc.
18. Covanta Geothermal Operations, Inc.
19. Covanta Heber Field Energy, Inc.
20. Covanta Hennepin Energy Resource Co., L.P.
21. Covanta Hillsborough, Inc.
22. Covanta Honolulu Resource Recovery Venture
23. Covanta Huntington Limited Partnership
24. Covanta Huntington Resource Recovery One Corp.
25. Covanta Huntington Resource Recovery Seven Corp.
26. Covanta Huntington, Inc.
27. Covanta Huntsville, Inc.
28. Covanta Hydro Energy, Inc.
29. Covanta Hydro Operations West, Inc.
30. Covanta Hydro Operations, Inc.
31. Covanta Imperial Power Services, Inc.
32. Covanta Indianapolis, Inc.
33. Covanta Kent, Inc.
34. Covanta Key Largo, Inc.
35. Covanta Lake, Inc.
36. Covanta Lancaster, Inc.
37. Covanta Xxx, Inc.
38. Covanta Long Island, Inc.
39. Covanta Xxxxxx Land Corp.
40. Covanta Xxxxxx, Inc.
41. Covanta Mid-Conn., Inc.
42. Covanta Xxxxxxxxxx, Inc.
43. Covanta New Martinsville Hydro-Operations Corp.
44. Covanta Northwest Puerto Rico, Inc.
45. Covanta Oahu Waste Energy Recovery, Inc.
46. Covanta Oil & Gas, Inc.
47. Covanta Onondaga Five Corp.
48. Covanta Onondaga Four Corp.
49. Covanta Onondaga Limited Partnership
50. Covanta Onondaga Operations, Inc.
51. Covanta Onondaga Three Corp.
52. Covanta Onondaga Two Corp.
53. Covarita Onondaga, Inc.
54. Covanta Onondaga, Limited Partnership
55. Covanta Operations of Union LLC
56. Covanta OPW Associates, Inc.
57. Covanta OPWH, Inc.
58. Covanta Pasco, Inc.
59. Covanta Plant Services of New Jersey, Inc.
60. Covanta Power Development of Bolivia, Inc.
61. Covanta Power Development, Inc.
62. Covanta Power Equity Corp.
63. Covanta Projects of Hawaii, Inc.
64. Covanta Projects of Wallingford, LP
65. Covanta RRS Holdings, Inc.
66. Covanta Secure Services USA, Inc.
67. Covanta Secure Services, Inc.
68. Covanta SIGC Energy II, Inc.
69. Covanta SIGC Energy, Inc.
70. Covanta SIGC Geothermal Operations, Inc.
71. Covanta Stanislaus, Inc.
72. Covanta Systems, Inc.
73. Covanta Tampa Bay, Inc.
74. Covanta Tulsa, Inc.
75. Covanta Union, Inc.
76. Covanta Wallingford Associates, Inc.
77. Covanta Xxxxxx Energy Resources Co., LP
78. Covanta Waste Solutions, Inc.
79. Covanta Waste to Energy of Italy, Inc.
80. Covanta Waste to Energy, Inc.
81. Covanta Water Holdings, Inc.
82. Covanta Water Systems, Inc.
83. Covanta Water Treatment Services, Inc.
84. DSS Environmental, Inc.
85. ERC Energy II, Inc.
86. ERC Energy, Inc.
87. Heber Field Company
88. Heber Field Energy II, Inc.
89. Heber Geothermal Company
90. Heber Loan Partners
91. J.R. Jacks Construction Corp.
92. Xxxxx Constructors, Inc.
93. Xxxxx Environmental & Energy Services Co., Inc.
94. OPI Quezon, Inc.
95. Second Imperial Geothermal Co., L.P.
96. Three Mountain Operations, Inc.
97. Three Mountain Power LLC
Schedule B
Other Borrowers
1. Xxxxx Facility Management Corporation of Anaheim
2. LaGuardia Fuel Facilities Corp.
3. Lenzar Electro-Optics, Inc.
4. Newark Automotive Fuel Facilities Corporation, Inc.
5. Xxxxx Allied Abatement & Decontamination Service, Inc.
6. Xxxxx Allied Maintenance Corp.
7. Xxxxx Allied Payroll Services, Inc.
8. Xxxxx Attractions, Inc.
9. Xxxxx Aviation Distributing Corp.
10. Xxxxx Aviation Fueling Company of Virginia, Inc.
11. Xxxxx Aviation Service Company of Colorado, Inc.
12. Xxxxx Aviation Service Company of New Jersey, Inc.
13. Xxxxx Aviation Service Company of New York, Inc.
14. Xxxxx Aviation Service Company of Pennsylvania, Inc.
15. Xxxxx Aviation Service International Corporation
16. Xxxxx Aviation, Inc.
17. Xxxxx Cargo Spain, Inc.
18. Xxxxx Central and South America, Inc.
19. Xxxxx Facility Holdings, Inc.
20. Xxxxx Film and Theatre, Inc.
21. Xxxxx Firehole Entertainment Corp.
22. Xxxxx International Europe, Inc.
23. Xxxxx New York Services, Inc.
24. Xxxxx Support Services, Inc.
25. PA Aviation Fuel Holdings, Inc.
26. Philadelphia Fuel Facilities Corporation