\n 1 (Greater than or equal to BBB by 0.2000% 1.0500% Eurodollar Rate
\n Standard & Poor’s and greater than per annum per annum plus 1.0500%
\n or equal to Ba2 by Moody’s) or per annum
\n (greater than or equal to BBB- by
\n Standard & Poor’s and greater than
\n or equal to Ba1 by Moody’s)
\n ————————————————————————————————————–
\n 2 BBB- by Standard & Poor’s and Ba2 by 0.2500% 1.2500% Eurodollar Rate
\n Moody’s per annum per annum plus 1.2500%
\n per annum
\n ————————————————————————————————————–
\n 3 (BB+ by Standard & Poor’s and Ba1 or 0.2500% 1.5000% Eurodollar Rate
\n Ba2 by Moody’s) or (BB by Standard & per annum per annum plus 1.5000%
\n Poor’s and Ba1 by Moody’s) per annum
\n ————————————————————————————————————–
\n 4 BB by Standard & Poor’s and Ba2 by 0.3000% 1.7000% Eurodollar Rate
\n Moody’s per annum per annum plus 1.7000%
\n per annum
\n ————————————————————————————————————–
\n 5 (Less than BB by Standard & Poor’s 0.3750% 1.8750% Eurodollar Rate
\n or Ba2 by Moody’s) or (Unrated by per annum per annum plus 1.8750%
\n Standard & Poor’s and Moody’s) per annum
\n ————————————————————————————————————–
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\nThe applicable rates charged for any day shall be determined by the Senior
\nPublic Debt Rating in effect as of that day.<\/p>\n
Prior Loan Agreement. See Preamble.<\/p>\n
RCRA. See Section 7.15(a).<\/p>\n
Real Property. All real property heretofore, now, or hereafter owned,
\noperated, or leased by the Borrower or any of its Subsidiaries.<\/p>\n
20<\/p>\n
Reference Banks. BKB, BOA, and Deutsche.<\/p>\n
Regulatory Disposition. The disposition of any assets of the Borrower
\nand its Subsidiaries required under antitrust laws in connection with the WMI
\nMerger.<\/p>\n
Reimbursement Obligation. The Borrower’s obligation to reimburse the
\napplicable Issuing Bank and the Banks on account of any drawing under any Letter
\nof Credit, all as provided in Section 3.2.<\/p>\n
Release. Shall have the meaning specified in the Comprehensive
\nEnvironmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
\nSections 9601 et seq. (“CERCLA”) and the term “Disposal” (or “Disposed”) shall
\nhave the meaning specified in the Resource Conservation and Recovery Act of
\n1976, 42 U.S.C. Sections 6901 et seq. (“RCRA”) and regulations promulgated
\nthereunder; provided, that in the event either CERCLA or RCRA is amended so as
\nto broaden the meaning of any term defined thereby, such broader meaning shall
\napply as of the effective date of such amendment and provided further, to the
\nextent that the laws of Canada or a state, province, territory or other
\npolitical subdivision thereof wherein the property lies establish a meaning for
\n“Release” or “Disposal” which is broader than specified in either CERCLA, or
\nRCRA, such broader meaning shall apply to the Borrower’s or any of its
\nSubsidiaries’ activities in that state, province, territory or political
\nsubdivision.<\/p>\n
Replacement Bank. See Section 6.11.<\/p>\n
Replacement Notice. See Section 6.11.<\/p>\n
Revolving Credit Facility. That certain Third Amended and Restated
\nRevolving Credit Agreement dated as of December 15, 1999 by and among the
\nBorrower, Sanifill, the Guarantor, BOA, MGT and the other banks party thereto,
\nand MGT as administrative and documentation agent thereunder, as amended from
\ntime to time.<\/p>\n
Revolving Credit Loans. Collectively, the Syndicated Loans, the Swing
\nLine Loans and the Competitive Bid Loans.<\/p>\n
Revolving Credit Maturity Date. July 10, 2000, as the same may be
\nextended in the sole discretion of the Banks pursuant to Section 2.10 hereof.<\/p>\n
Revolving Credit Notes. Collectively, the Competitive Bid Notes, the
\nSyndicated Notes and the Swing Line Note.<\/p>\n
Sanifill. Sanifill, Inc., a Delaware corporation having its chief
\nexecutive office at 1001 Fannin Street, Suite 4000, Houston, Texas 77002.<\/p>\n
Section 20 Subsidiary. A Subsidiary of the bank holding company
\ncontrolling any Bank, which Subsidiary has been granted authority by the Federal
\nReserve Board to underwrite and deal in certain Ineligible Securities.<\/p>\n
Senior Public Debt Rating. The ratings of the Borrower’s public
\nunsecured long-term senior debt, without third party credit enhancement, issued
\nby Moody’s and Standard & Poor’s.<\/p>\n
21<\/p>\n
Standard & Poor’s. Standard & Poor’s Ratings Services, a division of
\nThe McGraw-Hill Companies, Inc.<\/p>\n
Strategic Dispositions. Domestic Strategic Dispositions and European
\nStrategic Dispositions.<\/p>\n
Subsidiary. Any corporation, association, trust, or other business
\nentity of which the designated parent shall at any time own directly or
\nindirectly through a Subsidiary or Subsidiaries at least a majority of the
\noutstanding capital stock or other interest entitled to vote generally.<\/p>\n
Swing Line Loans. See Section 2.12(a).<\/p>\n
Swing Line Note. See Section 2.12(a).<\/p>\n
Swing Line Settlement. The making or receiving of payments, in
\nimmediately available funds, by the Banks to or from the Administrative Agent in
\naccordance with Section 2.12 hereof to the extent necessary to cause each Bank’s
\nactual share of the outstanding amount of the Syndicated Loans to be equal to
\nsuch Bank’s Commitment Percentage of the outstanding amount of such Syndicated
\nLoans, in any case when, prior to such action, the actual share is not so equal.<\/p>\n
Swing Line Settlement Amount. See Section 2.12(b).<\/p>\n
Swing Line Settlement Date. See Section 2.12(b).<\/p>\n
Swing Line Settling Bank. See Section 2.12(b).<\/p>\n
Syndicated Loan Request. See Section 2.6(a).<\/p>\n
Syndicated Loans. A borrowing hereunder consisting of one or more loans
\nmade by the Banks to the Borrower under the procedure described in Section
\n2.1(a) and Section 2.12 hereof.<\/p>\n
Syndicated Notes. See Section 2.4(a).<\/p>\n
Term Loan. The term loan made or to be made by the Banks to the
\nBorrower on the Revolving Credit Maturity Date as contemplated by Section 5.<\/p>\n
Term Loan Maturity Date. The date 364 days after the Revolving Credit
\nMaturity Date.<\/p>\n
Term Notes. See Section 5.1.<\/p>\n
Terminated Plans. The Waste Management, Inc. Pension Plan and The Waste
\nManagement of Alameda County, Inc. Retirement Plan.<\/p>\n
Total Commitment. $3,000,000,000, as such amount may be reduced
\npursuant to Section 2.3 hereof, or, if such Total Commitment has been terminated
\npursuant to Section 2.3 or Section 13.2 hereof, zero.
\n 22<\/p>\n
Transitional Issuing Banks. Bank One, Texas, N.A., First Union National
\nBank, and Mellon Bank, N.A.<\/p>\n
WMI Merger. The merger of Dome into the Guarantor pursuant to the WMI
\nMerger Agreement, on or about July 16, 1998, with the Guarantor having become
\nthe surviving corporation and having become a wholly owned subsidiary of the
\nBorrower and with the Guarantor having changed its name to Waste Management
\nHoldings, Inc.<\/p>\n
WMI Merger Agreement. The Agreement and Plan of Merger, dated as of
\nMarch 10, 1998, among the Borrower, Dome and the Guarantor.<\/p>\n
Year 2000 Compliant. See Section 7.19.<\/p>\n
SECTION 1.2. RULES OF INTERPRETATION. <\/p>\n
(a) Unless otherwise noted, a reference to any document or
\n agreement (including this Agreement) shall include such document or
\n agreement as amended, modified or supplemented from time to time in
\n accordance with its terms and the terms of this Agreement.<\/p>\n
(b) The singular includes the plural and the plural includes
\n the singular.<\/p>\n
(c) A reference to any law includes any amendment or
\n modification to such law.<\/p>\n
(d) A reference to any Person includes its permitted
\n successors and permitted assigns.<\/p>\n
(e) Accounting terms capitalized but not otherwise defined
\n herein have the meanings assigned to them by generally accepted
\n accounting principles applied on a consistent basis by the accounting
\n entity to which they refer.<\/p>\n
(f) The words “include”, “includes” and “including” are not
\n limiting.<\/p>\n
(g) All terms not specifically defined herein or by generally
\n accepted accounting principles, which terms are defined in the Uniform
\n Commercial Code as in effect in the State of New York, have the
\n meanings assigned to them therein.<\/p>\n
(h) Reference to a particular “Section ” refers to that
\n section of this Agreement unless otherwise indicated.<\/p>\n
(i) The words “herein”, “hereof”, “hereunder” and words of
\n like import shall refer to this Agreement as a whole and not to any
\n particular section or subdivision of this Agreement.<\/p>\n
23<\/p>\n
SECTION 2. THE SYNDICATED LOAN FACILITIES.<\/p>\n
SECTION 2.1. COMMITMENT TO LEND. <\/p>\n
(a) Subject to the terms and conditions set forth in this
\n Agreement, each of the Banks severally agrees to lend to the Borrower
\n and the Borrower may borrow, repay, and reborrow from time to time
\n between the Effective Date and the Revolving Credit Maturity Date, upon
\n notice by the Borrower to the Administrative Agent given in accordance
\n with this Section 2, its Commitment Percentage of the Syndicated Loans
\n as are requested by the Borrower; provided that the sum of the
\n outstanding principal amount of the Syndicated Loans (including the
\n Swing Line Loans) and the Maximum Drawing Amount of outstanding Letters
\n of Credit shall not exceed the Total Commitment minus the aggregate
\n amount of Competitive Bid Loans outstanding at such time.<\/p>\n
(b) Each request for a Loan or Letter of Credit hereunder
\n shall constitute a representation and warranty by the Borrower that the
\n conditions set forth in Section 11 and Section 12, as the case may be,
\n have been satisfied on the date of such request. Any unpaid
\n Reimbursement Obligation shall be a Base Rate Loan, as set forth in
\n Section 3.2(a).<\/p>\n
SECTION 2.2. FACILITY FEE. The Borrower agrees to pay to the
\nAdministrative Agent for the account of the Banks a fee (the “Facility Fee”) on
\nthe Total Commitment equal to the Applicable Facility Rate multiplied by the
\nTotal Commitment, provided that in the event that the Borrower exercises its
\noption under Section 5 to convert the outstanding Revolving Credit Loans into a
\nTerm Loan, the Facility Fee will be equal to the aggregate principal amount of
\nthe Term Loan multiplied by the Applicable Facility Rate. The Facility Fee shall
\nbe payable for the period from and after the Effective Date quarterly in arrears
\non the first day of each calendar quarter for the immediately preceding calendar
\nquarter with the first such payment commencing on January 1, 2000 and with a
\nfinal payment on the Revolving Credit Maturity Date (or on the date of
\ntermination in full of the Total Commitment, if earlier), provided that in the
\nevent the Borrower opts to convert its outstanding Revolving Credit Loans into a
\nTerm Loan, the final payment shall be on the Term Loan Maturity Date (or on the
\ndate the Term Loan is paid in full, if earlier). The Facility Fee shall be
\ndistributed pro rata among the Banks in accordance with each Bank’s Commitment
\nPercentage (as determined prior to the date the Borrower converts the
\noutstanding Revolving Credit Loans into a Term Loan, with respect to the
\nFacility Fee payable on the Term Loan).<\/p>\n
SECTION 2.3. REDUCTION OF TOTAL COMMITMENT. <\/p>\n
(a) The Borrower shall have the right at any time and from
\n time to time upon three (3) Business Days’ prior written notice to the
\n Administrative Agent to reduce by $25,000,000 or a greater amount or
\n terminate entirely, the Total Commitment, whereupon each Bank’s
\n Commitment shall be reduced pro rata in accordance with such Bank’s
\n Commitment Percentage of the amount specified in such notice or, as the
\n case may be, terminated provided that at no time may (i) the Total
\n Commitment be reduced to an amount less than the sum of (A) the Maximum
\n Drawing Amount of all Letters of Credit, and (B) all Revolving Credit
\n Loans then outstanding.<\/p>\n
(b) The Total Commitment shall be automatically reduced as
\n required pursuant to Sections 9.4(c) and (d), whereupon each Bank’s
\n Commitment shall be reduced pro rata in accordance with such Bank’s
\n Commitment Percentage of the amount terminated.<\/p>\n
24<\/p>\n
(c) No reduction or termination of the Total Commitment once
\n made may be revoked; the portion of the Total Commitment reduced or
\n terminated may not be reinstated; and amounts in respect of such
\n reduced or terminated portion may not be reborrowed.<\/p>\n
(d) The Administrative Agent will notify the Banks promptly
\n after receiving any notice delivered by the Borrower pursuant to this
\n Section 2.3 and will distribute to each Bank a revised Schedule 1 to
\n this Agreement.<\/p>\n
SECTION 2.4. THE SYNDICATED NOTES. <\/p>\n
(a) The Syndicated Loans shall be evidenced by separate
\n promissory notes of the Borrower in substantially the form of Exhibit A
\n hereto (each, a “Syndicated Note”), dated as of the Effective Date (or
\n such later date at which a Bank becomes a party hereto pursuant to
\n Section 21) and completed with appropriate insertions. One Syndicated
\n Note shall be payable to the order of each Bank in an amount equal to
\n its maximum Commitment, and shall represent the obligation of the
\n Borrower to pay such Bank such principal amount or, if less, the
\n outstanding principal amount of all Syndicated Loans made by such Bank,
\n plus interest accrued thereon, as set forth herein.<\/p>\n
(b) The Borrower irrevocably authorizes each Bank to make, or
\n cause to be made, in connection with a Drawdown Date of any Syndicated
\n Loan and at the time of receipt of any payment of principal on its
\n Syndicated Note, an appropriate notation on such Bank’s records or on
\n the schedule attached to such Bank’s Syndicated Note or a continuation
\n of such schedule attached thereto reflecting the making of such Loan,
\n or the receipt of such payment (as the case may be) and each Bank may,
\n prior to any transfer of its Syndicated Note endorse on the reverse
\n side thereof the outstanding principal amount of such Loans evidenced
\n thereby. The outstanding amount of the Syndicated Loans set forth on
\n such Bank’s records shall be prima facie evidence of the principal
\n amount thereof owing and unpaid to such Bank, but the failure to
\n record, or any error in so recording, any such amount shall not limit
\n or otherwise affect the obligations of the Borrower hereunder or under
\n such Notes to make payments of principal of or interest on any such
\n Notes when due.<\/p>\n
SECTION 2.5. INTEREST ON SYNDICATED LOANS. <\/p>\n
(a) The outstanding principal amount of the Syndicated Loans
\n shall bear interest at the rate per annum equal to (i) the Base Rate on
\n Base Rate Loans, (ii) the Applicable Eurodollar Rate on Eurodollar
\n Loans and (iii) the Applicable Swing Line Rate on Swing Line Loans.<\/p>\n
(b) Interest shall be payable (i) monthly in arrears on the
\n first Business Day of each month, with the first such payment
\n commencing January 1, 2000, on Base Rate Loans, (ii) on the last day of
\n the applicable Interest Period, and if such Interest Period is longer
\n than three months, also on the last day of each three month period
\n following the commencement of such Interest Period, on Eurodollar
\n Loans, and (iii) on the Revolving Credit Maturity Date for all
\n Revolving Credit Loans.<\/p>\n
25<\/p>\n
SECTION 2.6. REQUESTS FOR SYNDICATED LOANS. <\/p>\n
(a) The Borrower shall give to the Administrative Agent
\n written notice in the form of Exhibit D hereto (or telephonic notice
\n confirmed in writing or a facsimile in the form of Exhibit D hereto) of
\n each Syndicated Loan requested hereunder (a “Syndicated Loan Request”)
\n not later than (a) 11:00 a.m. (New York time) on the proposed Drawdown
\n Date of any Base Rate Loan, or (b) 11:00 a.m. (New York time) three (3)
\n Eurodollar Business Days prior to the proposed Drawdown Date of any
\n Eurodollar Loan. Each such Syndicated Loan Request shall specify (A)
\n the principal amount of the Syndicated Loan requested, (B) the proposed
\n Drawdown Date of such Syndicated Loan, (C) whether such Syndicated Loan
\n requested is to be a Base Rate Loan or a Eurodollar Loan, and (D) the
\n Interest Period for such Syndicated Loan, if a Eurodollar Loan. Each
\n Syndicated Loan requested shall be in a minimum amount of $10,000,000.
\n Each such Syndicated Loan Request shall reflect the Maximum Drawing
\n Amount of all Letters of Credit outstanding and the amount of all
\n Revolving Credit Loans outstanding (including Competitive Bid Loans and
\n Swing Line Loans). Syndicated Loan Requests made hereunder shall be
\n irrevocable and binding on the Borrower, and shall obligate the
\n Borrower to accept the Syndicated Loan requested from the Banks on the
\n proposed Drawdown Date.<\/p>\n
(b) Each of the representations and warranties made by the
\n Borrower to the Banks or the Administrative Agent in this Agreement or
\n any other Loan Document shall be true and correct in all material
\n respects when made and shall, for all purposes of this Agreement, be
\n deemed to be repeated by the Borrower on and as of the date of the
\n submission of a Syndicated Loan Request, Competitive Bid Quote Request,
\n or Letter of Credit Application and on and as of the Drawdown Date of
\n any Revolving Credit Loan or the date of issuance of any Letter of
\n Credit (except to the extent (i) of changes resulting from transactions
\n contemplated or permitted by this Agreement and the other Loan
\n Documents, (ii) of changes occurring in the ordinary course of business
\n that singly or in the aggregate are not materially adverse to the
\n business, assets or financial condition of the Borrower and its
\n Subsidiaries as a whole, or (iii) that such representations and
\n warranties expressly relate only to an earlier date).<\/p>\n
(c) The Administrative Agent shall promptly notify each Bank
\n of each Syndicated Loan Request received by the Administrative Agent
\n (i) on the proposed Drawdown Date of any Base Rate Loan, or (ii) three
\n (3) Eurodollar Business Days prior to the proposed Drawdown Date of any
\n Eurodollar Loan.<\/p>\n
SECTION 2.7. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
\nPERIODS; MINIMUM AMOUNTS.<\/p>\n
(a) At the Borrower’s option, so long as no Default or Event
\n of Default has occurred and is then continuing, the Borrower may (i)
\n elect to convert any Base Rate Loan or a portion thereof to a
\n Eurodollar Loan, (ii) at the time of any Syndicated Loan Request,
\n specify that such requested Loan shall be a Eurodollar Loan, or (iii)
\n upon expiration of the applicable Interest Period, elect to maintain an
\n existing Eurodollar Loan as such, provided that the Borrower give
\n notice to the Administrative Agent pursuant to<\/p>\n
26<\/p>\n
Section 2.7(b) hereof. Upon determining any Eurodollar Rate, the
\n Administrative Agent shall forthwith provide notice thereof to the
\n Borrower and the Banks, and each such notice to the Borrower shall be
\n considered prima facie correct and binding, absent manifest error.<\/p>\n
(b) Three (3) Eurodollar Business Days prior to the making of
\n any Eurodollar Loan or the conversion of any Base Rate Loan to a
\n Eurodollar Loan, or, in the case of an outstanding Eurodollar Loan, the
\n expiration date of the applicable Interest Period, the Borrower shall
\n give written, telex or facsimile notice (or telephonic notice promptly
\n confirmed in a writing or a facsimile) received by the Administrative
\n Agent not later than 11:00 a.m. (New York time) of its election
\n pursuant to Section 2.7(a). Each such notice delivered to the
\n Administrative Agent shall specify the aggregate principal amount of
\n the Syndicated Loans to be borrowed or maintained as or converted to
\n Eurodollar Loans and the requested duration of the Interest Period that
\n will be applicable to such Eurodollar Loan, and shall be irrevocable
\n and binding upon the Borrower. If the Borrower shall fail to give the
\n Administrative Agent notice of its election hereunder together with all
\n of the other information required by this Section 2.7(b) with respect
\n to any Syndicated Loan, whether at the end of an Interest Period or
\n otherwise, such Syndicated Loan shall be deemed a Base Rate Loan. The
\n Administrative Agent shall promptly notify the Banks in writing (or by
\n telephone confirmed in writing or by facsimile) of such election.<\/p>\n
(c) Notwithstanding anything herein to the contrary, the
\n Borrower may not specify an Interest Period that would extend beyond
\n the Revolving Credit Maturity Date.<\/p>\n
(d) No conversion of Loans pursuant to this Section 2.7 may
\n result in Eurodollar Loans that are less than $5,000,000. In no event
\n shall the Borrower have more than eight (8) different Interest Periods
\n for borrowings of Eurodollar Loans outstanding at any time.<\/p>\n
(e) Subject to the terms and conditions of Section 6.7 hereof,
\n if any Affected Bank demands compensation under Section 6.4(c) or (d)
\n with respect to any Eurodollar Loan, the Borrower may at any time, upon
\n at least three (3) Business Days’ prior written notice to the
\n applicable Administrative Agent, elect to convert such Eurodollar Loan
\n into a Base Rate Loan (on which interest and principal shall be payable
\n contemporaneously with the related Eurodollar Loans of the other
\n Banks). Thereafter, and until such time as the Affected Bank notifies
\n the Administrative Agent that the circumstances giving rise to the
\n demand for compensation under Section 6.4(c) or (d) no longer exist,
\n all requests for Eurodollar Loans from such Affected Bank shall be
\n deemed to be requests for Base Rate Loans. Once the Affected Bank
\n notifies the Administrative Agent that such circumstances no longer
\n exist, the Borrower may elect that the principal amount of each such
\n Loan converted hereunder shall again bear interest as Eurodollar Loans
\n beginning on the first day of the next succeeding Interest Period
\n applicable to the related Eurodollar Loans of the other Banks.<\/p>\n
SECTION 2.8. FUNDS FOR SYNDICATED LOANS. Not later than 1:00 p.m. (New
\nYork time) on the proposed Drawdown Date of Syndicated Loans, each of the Banks
\nwill make available to the Administrative Agent at its Head Office, in
\nimmediately available funds, the amount of its Commitment Percentage of the
\namount of the requested Loan. Upon receipt from each Bank of such amount, and
\nupon receipt of the documents required by Section 11 and Section 12 and the
\nsatisfaction of <\/p>\n
27<\/p>\n
the other conditions set forth therein, the Administrative Agent will make
\navailable to the Borrower the aggregate amount of such Syndicated Loans made
\navailable by the Banks. The failure or refusal of any Bank to make available to
\nthe Administrative Agent at the aforesaid time and place on any Drawdown Date
\nthe amount of its Commitment Percentage of the requested Syndicated Loan shall
\nnot relieve any other Bank from its several obligations hereunder to make
\navailable to the Administrative Agent the amount of such Bank’s Commitment
\nPercentage of the requested Loan.<\/p>\n
SECTION 2.9. MATURITY OF THE REVOLVING CREDIT LOANS AND REIMBURSEMENT
\nOBLIGATIONS. The Borrower promises to pay on the Revolving Credit Maturity Date,
\nand there shall become absolutely due and payable on the Revolving Credit
\nMaturity Date, all of the Revolving Credit Loans and unpaid Reimbursement
\nObligations outstanding on such date, together with any and all accrued and
\nunpaid interest thereon and any fees and other amounts owing hereunder.<\/p>\n
SECTION 2.10. REQUEST FOR EXTENSION OF REVOLVING CREDIT MATURITY DATE.
\nThe Borrower may, provided that no Default or Event of Default has occurred and
\nis continuing, by written notice to the Administrative Agent given not more than
\nsixty (60) days nor less than forty-five (45) days prior to the initial
\nRevolving Credit Maturity Date (the “Initial Maturity Date”) request that the
\nInitial Maturity Date be extended to the date which is 364 days after the
\nInitial Maturity Date. The Administrative Agent shall notify the Banks of such
\nrequest promptly after receipt, and request each Bank to notify the
\nAdministrative Agent of its determination to consent or not to consent to such
\nextension. Each Bank which makes a determination not to consent shall notify the
\nAdministrative Agent of such determination by the thirtieth (30th) day prior to
\nthe Initial Maturity Date (without prejudice to any Bank’s right to determine
\nnot to consent after such thirtieth (30th) day but on or before the tenth (10th)
\nBusiness Day before the Initial Maturity Date). The Borrower may take the
\nactions permitted by Section 6.11 to replace any Bank that fails to consent to
\nsuch extension, or reduce the Total Commitment as permitted under Section 2.3.
\nIf the Majority Banks (including any Replacement Bank, if applicable) consent to
\nthe extension by so notifying the Administrative Agent in writing no earlier
\nthan ten (10) Business Days prior to the Initial Maturity Date, the Revolving
\nCredit Maturity Date for Revolving Credit Loans of such consenting or
\nReplacement Banks shall be extended for 364 days. The determination of each Bank
\nshall be in the sole discretion of such Bank. Each Bank shall give written
\nnotice of its determination to consent or not to consent to such extension
\npursuant to this Section 2.10, no earlier than the tenth (10th) Business Day
\nprior to the Initial Maturity Date. All non-consenting Banks’ Revolving Credit
\nLoans shall be payable in full on the Initial Maturity Date, unless the Borrower
\nhas exercised its option to term out all Revolving Credit Loans pursuant to
\nSection 5.1. Any Bank which fails to give written notice of its consent or
\nnon-consent shall be deemed not to have consented to the extension hereunder.<\/p>\n
SECTION 2.11. PREPAYMENTS OR REPAYMENTS OF REVOLVING CREDIT LOANS. <\/p>\n
(a) Optional Prepayments: Subject to the terms and conditions
\n of Section 6.7, the Borrower shall have the right, at its election, to
\n repay or prepay the outstanding amount of the Revolving Credit Loans
\n (other than Competitive Bid Loans), as a whole or in part, at any time
\n without penalty or premium. The Borrower shall give the Administrative
\n Agent no later than 11:00 a.m. (New York time) (i) on the proposed date
\n of prepayment <\/p>\n
28<\/p>\n
or repayment of Base Rate Loans, and (ii) three (3) Eurodollar Business
\n Day prior to the proposed date of prepayment or repayment of Eurodollar
\n Rate Loans, written notice (or telephonic notice confirmed in writing
\n or by facsimile) of any proposed prepayment or repayment pursuant to
\n this Section 2.11, specifying the proposed date of prepayment or
\n repayment of such Loans and the principal amount to be paid.
\n Notwithstanding the foregoing, the Borrower may not prepay any
\n Competitive Bid Loans. The Administrative Agent shall promptly notify
\n each Bank by written notice (or telephonic notice confirmed in writing
\n or by facsimile) of such notice of payment.<\/p>\n
(b) Mandatory Repayments:<\/p>\n
(i) If at any time the sum of the
\n outstanding principal amount of the Revolving Credit
\n Loans plus the Maximum Drawing Amount of all
\n outstanding Letters of Credit exceeds the Total
\n Commitment, whether by reduction of the Total
\n Commitment or otherwise, then the Borrower shall
\n immediately pay the amount of such excess to the
\n Administrative Agent, (A) for application to the
\n Revolving Credit Loans, first to Syndicated Loans,
\n then to Competitive Bid Loans, subject to Section
\n 6.7, or (B) if no Revolving Credit Loans shall be
\n outstanding, to be held by the Administrative Agent
\n for the benefit of the Banks as collateral security
\n for such excess Maximum Drawing Amount and the
\n Borrower hereby grants a security interest in such
\n amount to the Administrative Agent for the benefit of
\n the Banks; provided, however, that if the amount of
\n cash collateral held by the Administrative Agent
\n pursuant to this Section 2.11(b)(i) exceeds the
\n Maximum Drawing Amount required to be collateralized
\n from time to time, the Administrative Agent shall
\n return such excess to the Borrower.<\/p>\n
(ii) Payments required pursuant to Section
\n Section 9.4(c) and (d) shall be applied in the manner
\n set forth in subsection (i) above.<\/p>\n
SECTION 2.12. SWING LINE LOANS; SETTLEMENTS.<\/p>\n
(a) Solely for ease of administration of the Syndicated Loans,
\n BKB may, but shall not be required to, fund Base Rate Loans made in
\n accordance with the provisions of this Agreement (“Swing Line Loans”).
\n The Swing Line Loans shall be evidenced by a promissory note of the
\n Borrower in substantially the form of Exhibit B hereto (the “Swing Line
\n Note”) and, at the discretion of BKB may be in amounts less than
\n $10,000,000 provided that the outstanding amount of Swing Line Loans
\n advanced by BKB hereunder shall not exceed $10,000,000 at any time.
\n Each Bank shall remain severally and unconditionally liable to fund its
\n pro rata share (based upon each Bank’s Commitment Percentage) of such
\n Swing Line Loans on each Swing Line Settlement Date and, in the event
\n BKB chooses not to fund all Base Rate Loans requested on any date, to
\n fund its Commitment Percentage of the Base Rate Loans requested,
\n subject to satisfaction of the provisions hereof relating to the making
\n of Base Rate Loans. Prior to each Swing Line Settlement, all payments
\n or repayments of the principal of, and interest on, Swing Line Loans
\n shall be credited to the account of BKB.<\/p>\n
29<\/p>\n
(b) The Banks shall effect Swing Line Settlements on (i) the
\n Business Day immediately following any day which BKB gives written
\n notice to the Administrative Agent to effect a Swing Line Settlement,
\n (ii) the Business Day immediately following the Administrative Agent’s
\n becoming aware of the existence of any Default or Event of Default, and
\n (iii) the Revolving Credit Maturity Date (each such date, a “Swing Line
\n Settlement Date”). One (1) Business Day prior to each such Swing Line
\n Settlement Date, the Administrative Agent shall give telephonic notice
\n to the Banks of (A) the respective outstanding amount of Syndicated
\n Loans made by each Bank as at the close of business on the prior day,
\n (B) the amount that any Bank, as applicable (a “Swing Line Settling
\n Bank”), shall pay to effect a Swing Line Settlement (a “Swing Line
\n Settlement Amount”) and (C) the portion (if any) of the aggregate Swing
\n Line Settlement Amount to be paid to each Bank. A statement of the
\n Administrative Agent submitted to the Banks with respect to any amounts
\n owing hereunder shall be prima facie evidence of the amount due and
\n owing. Each Swing Line Settling Bank shall, not later than 1:00 p.m.
\n (New York time) on each Swing Line Settlement Date, effect a wire
\n transfer of immediately available funds to the Administrative Agent at
\n its Head Office in the amount of such Bank’s Swing Line Settlement
\n Amount. The Administrative Agent shall, as promptly as practicable
\n during normal business hours on each Swing Line Settlement Date, effect
\n a wire transfer of immediately available funds to each Bank of the
\n Swing Line Settlement Amount to be paid to such Bank. All funds
\n advanced by any Bank as a Swing Line Settling Bank pursuant to this
\n Section 2.12(b) shall for all purposes be treated as a Base Rate Loan
\n made by such Swing Line Settling Bank to the Borrower, and all funds
\n received by any Bank pursuant to this Section 2.12(b) shall for all
\n purposes be treated as repayment of amounts owed by the Borrower with
\n respect to Base Rate Loans made by such Bank.<\/p>\n
(c) The Administrative Agent may (unless notified to the
\n contrary by any Swing Line Settling Bank by 12:00 noon (New York time)
\n one (1) Business Day prior to the Settlement Date) assume that each
\n Swing Line Settling Bank has made available (or will make available by
\n the time specified in Section 2.12(b)) to the Administrative Agent its
\n Swing Line Settlement Amount, and the Administrative Agent may (but
\n shall not be required to), in reliance upon such assumption, make
\n available to each applicable Bank its share (if any) of the aggregate
\n Swing Line Settlement Amount. If the Swing Line Settlement Amount of
\n such Swing Line Settling Bank is made available to the Administrative
\n Agent by such Swing Line Settling Bank on a date after such Swing Line
\n Settlement Date, such Swing Line Settling Bank shall pay the
\n Administrative Agent on demand an amount equal to the product of (i)
\n the average, computed for the period referred to in clause (iii) below,
\n of the weighted average annual interest rate paid by the Administrative
\n Agent for federal funds acquired by the Administrative Agent during
\n each day included in such period times (ii) such Swing Line Settlement
\n Amount times (iii) a fraction, the numerator of which is the number of
\n days that elapse from and including such Swing Line Settlement Date to
\n but not including the date on which such Swing Line Settlement Amount
\n shall become immediately available to the Administrative Agent, and the
\n denominator of which is 365. Upon payment of such amount such Swing
\n Line Settling Bank shall be deemed to have delivered its Swing Line
\n Settlement Amount on the Swing Line Settlement Date and shall become
\n entitled to interest payable by the Borrower with respect to such Swing
\n Line Settling Bank’s Swing Line Settlement <\/p>\n
30<\/p>\n
Amount as if such share were delivered on the Swing Line Settlement
\n Date. If such Swing Line Settlement Amount is not in fact made
\n available to the Administrative Agent by such Swing Line Settling Bank
\n within three (3) Business Days of such Swing Line Settlement Date, the
\n Administrative Agent shall be entitled to recover such amount from the
\n Borrower, with interest thereon at the Base Rate.<\/p>\n
(d) After any Swing Line Settlement Date, any payment by the
\n Borrower of Swing Line Loans hereunder shall be allocated among the
\n Banks, in amounts determined so as to provide that after such
\n application and the related Swing Line Settlement, the outstanding
\n amount of Syndicated Loans of each Bank equals, as nearly as
\n practicable, such Bank’s Commitment Percentage of the aggregate amount
\n of Syndicated Loans.<\/p>\n
SECTION 3. LETTERS OF CREDIT.<\/p>\n
SECTION 3.1. LETTER OF CREDIT COMMITMENTS.<\/p>\n
(a) Subject to the terms and conditions hereof and the receipt
\n of a Letter of Credit Application by an Issuing Bank, with a copy to
\n the Administrative Agent reflecting the Maximum Drawing Amount of all
\n Letters of Credit (including the requested Letter of Credit), such
\n Issuing Bank, on behalf of the Banks and in reliance upon the
\n representations and warranties of the Borrower contained herein and the
\n agreement of the Banks contained in Section 3.1(b) hereof, agrees to
\n issue Letters of Credit for the account of the Borrower (which may,
\n with such Issuing Bank’s consent, incorporate automatic renewals for
\n periods of up to twelve (12) months), in such form as may be requested
\n from time to time by the Borrower and agreed to by the Issuing Bank;
\n provided, however, that, after giving effect to such request, the
\n aggregate Maximum Drawing Amount of all Letters of Credit issued at any
\n time shall not exceed the lesser of (i) $100,000,000 or (ii) the Total
\n Commitment minus the aggregate outstanding amount of the Revolving
\n Credit Loans and provided further, that no Letter of Credit shall have
\n an expiration date later than five (5) Business Days prior to the
\n Revolving Credit Maturity Date. The letters of credit listed in
\n Schedule 3.1(a) issued by the Issuing Banks and the Transitional
\n Issuing Banks under the Prior Loan Agreement shall be Letters of Credit
\n under this Agreement. Letters of Credit may only be renewed or extended
\n by Letters of Credit issued by Issuing Banks (other than Transitional
\n Issuing Banks) hereunder.<\/p>\n
(b) Each Letter of Credit shall be denominated in Dollars.
\n Each Bank severally agrees that it shall be absolutely liable, without
\n regard to the occurrence of any Default or Event of Default, the
\n termination of the Total Commitment pursuant to Section 13.2, or any
\n other condition precedent whatsoever, to the extent of such Bank’s
\n Commitment Percentage to reimburse the Issuing Bank on demand for the
\n amount of each draft paid by the Issuing Bank under each Letter of
\n Credit to the extent that such amount is not reimbursed by the Borrower
\n pursuant to Section 3.2 (such agreement for a Bank being called herein
\n the “Letter of Credit Participation” of such Bank). Each Bank agrees
\n that its obligation to reimburse the Issuing Bank pursuant to this
\n Section 3.1(b) shall not be affected in any way by any circumstance
\n other than the gross negligence or willful misconduct of the Issuing
\n Bank.<\/p>\n
31<\/p>\n
(c) Each such reimbursement payment made by a Bank to the
\n Issuing Bank shall be treated as the purchase by such Bank of a
\n participating interest in the applicable Reimbursement Obligation under
\n Section 3.2 in an amount equal to such payment. Each Bank shall share
\n in accordance with its participating interest in any interest which
\n accrues pursuant to Section 3.2.<\/p>\n
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to
\ninduce the Issuing Banks to issue, extend and renew each Letter of Credit, the
\nBorrower hereby agrees to reimburse or pay to each Issuing Bank, with respect to
\neach Letter of Credit issued, extended or renewed by such Issuing Bank hereunder
\nas follows:<\/p>\n
(a) if any draft presented under any Letter of Credit is
\n honored by such Issuing Bank or such Issuing Bank otherwise makes
\n payment with respect thereto, the sum of (i) the amount paid by such
\n Issuing Bank under or with respect to such Letter of Credit, and (ii)
\n the amount of any taxes, fees, charges or other costs and expenses
\n whatsoever incurred by such Issuing Bank in connection with any payment
\n made by such Issuing Bank under, or with respect to, such Letter of
\n Credit, provided however, if the Borrower does not reimburse such
\n Issuing Bank on the Drawdown Date, such amount shall, provided that no
\n Event of Default under Section 13(g) or 13(h) has occurred, become
\n automatically a Syndicated Loan which is a Base Rate Loan advanced
\n hereunder in an amount equal to such sum; and<\/p>\n
(b) upon the Revolving Credit Maturity Date or the
\n acceleration of the Reimbursement Obligations with respect to all
\n Letters of Credit in accordance with Section 13, an amount equal to the
\n then Maximum Drawing Amount of all Letters of Credit shall be paid by
\n the Borrower to the Administrative Agent to be held as cash collateral
\n for the applicable Reimbursement Obligations.<\/p>\n
SECTION 3.3. OBLIGATIONS ABSOLUTE. The Borrower’s respective
\nobligations under this Section 3 shall be absolute and unconditional under any
\nand all circumstances and irrespective of the occurrence of any Default or Event
\nof Default or any condition precedent whatsoever or any setoff, counterclaim or
\ndefense to payment which the Borrower may have or have had against any Issuing
\nBank, any Bank or any beneficiary of a Letter of Credit, and the Borrower
\nexpressly waives any such rights that it may have with respect thereto. The
\nBorrower further agrees with each Issuing Bank and the Banks that such Issuing
\nBank and the Banks (i) shall not be responsible for, and the Borrower’s
\nReimbursement Obligations under Section 3.2 shall not be affected by, among
\nother things, the validity or genuineness of documents or of any endorsements
\nthereon, even if such documents should in fact prove to be in any or all
\nrespects invalid, fraudulent or forged (unless due to the willful misconduct of
\nsuch Issuing Bank or any other Bank), or any dispute between or among the
\nBorrower and the beneficiary of any Letter of Credit or any financing
\ninstitution or other party to which any Letter of Credit may be transferred or
\nany claims or defenses whatsoever of the Borrower against the beneficiary of any
\nLetter of Credit or any such transferee, and (ii) shall not be liable for any
\nerror, omission, interruption or delay in transmission, dispatch or delivery of
\nany message or advice, however transmitted, in connection with any Letter of
\nCredit except to the extent of their own willful misconduct. The Borrower agrees
\nthat any action taken or omitted by any Issuing Bank or any Bank in good faith<\/p>\n
32<\/p>\n
under or in connection with any Letter of Credit and the related drafts and
\ndocuments shall be binding upon the Borrower and shall not result in any
\nliability on the part of such Issuing Bank or any Bank (or their respective
\naffiliates) to the Borrower. Nothing herein shall constitute a waiver by the
\nBorrower of any of its rights against any beneficiary of a Letter of Credit.<\/p>\n
SECTION 3.4. RELIANCE BY THE ISSUING BANKS. To the extent not
\ninconsistent with Section 3.3, each Issuing Bank shall be entitled to rely, and
\nshall be fully protected in relying, upon any Letter of Credit, draft, writing,
\nresolution, notice, consent, certificate, affidavit, letter, cablegram,
\ntelegram, facsimile, telex or teletype message, statement, order or other
\ndocument believed by such Issuing Bank in good faith to be genuine and correct
\nand to have been signed, sent or made by the proper Person or Persons and upon
\nadvice and statements of legal counsel, independent accountants and other
\nexperts selected by such Issuing Bank.<\/p>\n
SECTION 3.5. NOTICE REGARDING LETTERS OF CREDIT. One (1) Business Day
\nprior to the issuance of any Letter of Credit or amendments, extensions or
\nterminations thereof, the applicable Issuing Bank shall notify the
\nAdministrative Agent of the terms of such Letter of Credit, amendment, extension
\nor termination. On the day of any drawing under any Letter of Credit, such
\nIssuing Bank shall notify the Administrative Agent of such drawing under any
\nLetter of Credit.<\/p>\n
SECTION 3.6. LETTER OF CREDIT FEE. The Borrower shall pay a fee (the
\n“Letter of Credit Fee”) equal to the Applicable L\/C Rate on the Maximum Drawing
\nAmount of the Letters of Credit to the Administrative Agent for the account of
\nthe Banks, to be shared pro rata by the Banks in accordance with their
\nrespective Commitment Percentages. The Letter of Credit Fee shall be payable
\nquarterly in arrears on the first day of each calendar quarter for the quarter
\njust ended, with the first such payment commencing January 1, 2000, and on the
\nRevolving Credit Maturity Date. In addition, an issuing fee (the “Issuance Fee”)
\nwith respect to each Letter of Credit to be agreed upon annually between the
\nBorrower and each Issuing Bank shall be payable to such Issuing Bank for its
\naccount.<\/p>\n
SECTION 4. COMPETITIVE BID LOANS.<\/p>\n
SECTION 4.1. THE COMPETITIVE BID OPTION. In addition to the Syndicated
\nLoans made pursuant to Section 2 hereof, the Borrower may request Competitive
\nBid Loans pursuant to the terms of this Section 4. The Banks may, but shall have
\nno obligation to, make such offers and the Borrower may, but shall have no
\nobligation to, accept such offers in the manner set forth in this Section 4.
\nNotwithstanding any other provision herein to the contrary, at no time shall the
\naggregate principal amount of Competitive Bid Loans outstanding at any time
\nexceed the Total Commitment minus the sum of (a) the aggregate outstanding
\nprincipal amount of Syndicated Loans (including the Swing Loans), plus (b) the
\nMaximum Drawing Amount of Letters of Credit, outstanding at such time.<\/p>\n
SECTION 4.2. COMPETITIVE BID LOAN ACCOUNTS: COMPETITIVE BID NOTES. <\/p>\n
(a) The obligation of the Borrower to repay the outstanding
\n principal amount of any and all Competitive Bid Loans, plus interest at
\n the applicable rate accrued thereon, shall be evidenced by this
\n Agreement and by individual loan accounts (the “Competitive Bid Loan
\n Accounts” and individually, a “Competitive Bid Loan Account”)
\n maintained by <\/p>\n
33<\/p>\n
the Administrative Agent on its books for each of the Banks, it being
\n the intention of the parties hereto that, except as provided for in
\n paragraph (b) of this Section 4.2, the Borrower’s obligations with
\n respect to Competitive Bid Loans are to be evidenced only as stated
\n herein and not by separate promissory notes.<\/p>\n
(b) Any Bank may at any time, and from time to time, request
\n that any Competitive Bid Loans outstanding to such Bank be evidenced by
\n a promissory note of the Borrower in substantially the form of Exhibit
\n C hereto (each, a “Competitive Bid Note”), dated as of the Effective
\n Date and completed with appropriate insertions. One Competitive Bid
\n Note shall be payable to the order of each Bank in an amount equal to
\n the Total Commitment, and representing the obligation of the Borrower
\n to pay such Bank such principal amount or, if less, the outstanding
\n principal amount of any and all Competitive Bid Loans made by such
\n Bank, plus interest at the applicable Competitive Bid Rate or
\n Competitive Bid Margin accrued thereon, as set forth herein. Upon
\n execution and delivery by the Borrower of a Competitive Bid Note, the
\n Borrower’s obligation to repay any and all Competitive Bid Loans made
\n to it by such Bank and all interest thereon shall thereafter be
\n evidenced by such Competitive Bid Note.<\/p>\n
(c) The Borrower irrevocably authorizes (i) each Bank to make
\n or cause to be made, in connection with a Drawdown Date of any
\n Competitive Bid Loan or at the time of receipt of any payment of
\n principal on such Bank’s Competitive Bid Note in the case of a
\n Competitive Bid Note, and (ii) the Administrative Agent to make or
\n cause to be made, in connection with a Drawdown Date of any Competitive
\n Bid Loan or at the time of receipt of any payment of principal on such
\n Bank’s Competitive Bid Loan Account in the case of a Competitive Bid
\n Loan Account, an appropriate notation on such Bank’s records or on the
\n schedule attached to such Bank’s Competitive Bid Note or a continuation
\n of such schedule attached thereto, or the Administrative Agent’s
\n records, as applicable, reflecting the making of the Competitive Bid
\n Loan or the receipt of such payment (as the case may be) and such Bank
\n may, prior to any transfer of a Competitive Bid Note, endorse on the
\n reverse side thereof the outstanding principal amount of Competitive
\n Bid Loans evidenced thereby. The outstanding amount of the Competitive
\n Bid Loans set forth on such Bank’s record or the Administrative Agent’s
\n records, as applicable, shall be prima facie evidence of the principal
\n amount thereof owing and unpaid to such Bank, but the failure to
\n record, or any error in so recording, any such amount shall not limit
\n or otherwise affect the obligations of the Borrower hereunder to make
\n payments of principal of or interest on any Competitive Bid Loan when
\n due.<\/p>\n
SECTION 4.3. COMPETITIVE BID QUOTE REQUEST; INVITATION FOR COMPETITIVE
\nBID QUOTES.<\/p>\n
(a) When the Borrower wishes to request offers to make
\n Competitive Bid Loans under this Section 4, it shall transmit to the
\n Administrative Agent by telex or facsimile a Competitive Bid Quote
\n Request substantially in the form of Exhibit H hereto (a “Competitive
\n Bid Quote Request”) so as to be received no later than 1:00 p.m. (New
\n York time) (x) five (5) Eurodollar Business Days prior to the requested
\n Drawdown Date in the case of a LIBOR Competitive Bid Loan (a “LIBOR
\n Competitive Bid Loan”) or (y) <\/p>\n
34<\/p>\n
one (1) Business Day prior to the requested Drawdown Date in the case
\n of an Absolute Competitive Bid Loan (an “Absolute Competitive Bid
\n Loan”), specifying:<\/p>\n
(i) the requested Drawdown Date (which must be a
\n Eurodollar Business Day in the case of a LIBOR Competitive Bid
\n Loan or a Business Day in the case of an Absolute Competitive
\n Bid Loan);<\/p>\n
(ii) the aggregate amount of such Competitive Bid
\n Loans, which shall be $10,000,000 or larger multiple of
\n $1,000,000;<\/p>\n
(iii) the duration of the Interest Period(s)
\n applicable thereto, subject to the provisions of the
\n definition of Interest Period; and<\/p>\n
(iv) whether the Competitive Bid Quotes requested are
\n for LIBOR Competitive Bid Loans or Absolute Competitive Bid
\n Loans.<\/p>\n
The Borrower may request offers to make Competitive Bid Loans for more
\n than one Interest Period in a single Competitive Bid Quote Request. No
\n new Competitive Bid Quote Request shall be given until the Borrower has
\n notified the Administrative Agent of its acceptance or non-acceptance
\n of the Competitive Bid Quotes relating to any outstanding Competitive
\n Bid Quote Request.<\/p>\n
(b) Promptly upon receipt of a Competitive Bid Quote Request,
\n the Administrative Agent shall send to the Banks by telecopy or
\n facsimile transmission an Invitation for Competitive Bid Quotes
\n substantially in the form of Exhibit I hereto, which shall constitute
\n an invitation by the Borrower to each Bank to submit Competitive Bid
\n Quotes in accordance with this Section 4.<\/p>\n
SECTION 4.4. ALTERNATIVE MANNER OF PROCEDURE. If, after receipt by the
\nAdministrative Agent and each of the Banks of a Competitive Bid Quote Request
\nfrom the Borrower in accordance with Section 4.3, the Administrative Agent or
\nany Bank shall be unable to complete any procedure of the auction process
\ndescribed in Section Section 4.5 through 4.6 (inclusive) due to the inability of
\nsuch Person to transmit or receive communications through the means specified
\ntherein, such Person may rely on telephonic notice for the transmission or
\nreceipt of such communications. In any case where such Person shall rely on
\ntelephone transmission or receipt, any communication made by telephone shall, as
\nsoon as possible thereafter, be followed by written confirmation thereof.<\/p>\n
SECTION 4.5. SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. <\/p>\n
(a) Each Bank may, but shall be under no obligation to, submit
\n a Competitive Bid Quote containing an offer or offers to make
\n Competitive Bid Loans in response to any Competitive Bid Quote Request.
\n Each Competitive Bid Quote must comply with the requirements of this
\n Section 4.5 and must be submitted to the Administrative Agent by telex
\n or facsimile transmission at its offices as specified in or pursuant to
\n Section 23 not later than (x) 2:00 p.m. (New York time) on the fourth
\n Eurodollar Business Day prior to the proposed Drawdown Date, in the
\n case of a LIBOR Competitive Bid Loan or (y) 10:00 a.m. (New York time)
\n on the proposed Drawdown Date, in the case of an Absolute Competitive
\n Bid <\/p>\n
35<\/p>\n
Loan, provided that Competitive Bid Quotes may be submitted by the
\n Administrative Agent in its capacity as a Bank only if it submits its
\n Competitive Bid Quote to the Borrower not later than (x) one hour prior
\n to the deadline for the other Banks, in the case of a LIBOR Competitive
\n Bid Loan or (y) 15 minutes prior to the deadline for the other Banks,
\n in the case of an Absolute Competitive Bid Loan. Subject to the
\n provisions of Sections 11 and 12 hereof, any Competitive Bid Quote so
\n made shall be irrevocable except with the written consent of the
\n Administrative Agent given on the instructions of the Borrower.<\/p>\n
(b) Each Competitive Bid Quote shall be in substantially the
\n form of Exhibit J hereto and shall in any case specify:<\/p>\n
(i) the proposed Drawdown Date;<\/p>\n
(ii) the principal amount of the Competitive Bid Loan
\n for which each proposal is being made, which principal amount
\n (w) may be greater than or less than the Commitment of the
\n quoting Bank, (x) must be $5,000,000 or a larger multiple of
\n $1,000,000, (y) may not exceed the aggregate principal amount
\n of Competitive Bid Loans for which offers were requested and
\n (z) may be subject to an aggregate limitation as to the
\n principal amount of Competitive Bid Loans for which offers
\n being made by such quoting Bank may be accepted;<\/p>\n
(iii) the Interest Period(s) for which Competitive
\n Bid Quotes are being submitted;<\/p>\n
(iv) in the case of a LIBOR Competitive Bid Loan, the
\n margin above or below the applicable LIBOR Rate (the
\n “Competitive Bid Margin”) offered for each such Competitive
\n Bid Loan, expressed as a percentage (specified to the nearest
\n 1\/10,000th of 1%) to be added to or subtracted from such LIBOR
\n Rate;<\/p>\n
(v) in the case of an Absolute Competitive Bid Loan,
\n the rate of interest per annum (specified to the nearest
\n 1\/10,000th of 1%) (the “Competitive Bid Rate”) offered for
\n each such Absolute Competitive Bid Loan; and<\/p>\n
(vi) the identity of the quoting Bank.<\/p>\n
A Competitive Bid Quote may include up to five separate offers by the
\n quoting Bank with respect to each Interest Period specified in the
\n related Invitation for Competitive Bid Quotes.<\/p>\n
(c) Any Competitive Bid Quote shall be disregarded if it:<\/p>\n
(i) is not substantially in the form of Exhibit J
\n hereto;<\/p>\n
(ii) contains qualifying, conditional or similar
\n language;<\/p>\n
(iii) proposes terms other than or in addition to
\n those set forth in the applicable Invitation for Competitive
\n Bid Quotes; or<\/p>\n
36<\/p>\n
(iv) arrives after the time set forth in Section
\n 4.5(a) hereof.<\/p>\n
SECTION 4.6. NOTICE TO BORROWER. The Administrative Agent shall
\npromptly notify the Borrower of the terms (x) of any Competitive Bid Quote
\nsubmitted by a Bank that is in accordance with Section 4.5 and (y) of any
\nCompetitive Bid Quote that amends, modifies or is otherwise inconsistent with a
\nprevious Competitive Bid Quote submitted by such Bank with respect to the same
\nCompetitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
\nbe disregarded by the Administrative Agent unless such subsequent Competitive
\nBid Quote is submitted solely to correct a manifest error in such former
\nCompetitive Bid Quote. The Administrative Agent’s notice to the Borrower shall
\nspecify (A) the aggregate principal amount of Competitive Bid Loans for which
\noffers have been received for each Interest Period specified in the related
\nCompetitive Bid Quote Request, (B) the respective principal amounts and
\nCompetitive Bid Margins or Competitive Bid Rates, as the case may be, so
\noffered, and the identity of the respective Banks submitting such offers, and
\n(C) if applicable, limitations on the aggregate principal amount of Competitive
\nBid Loans for which offers in any single Competitive Bid Quote may be accepted.<\/p>\n
SECTION 4.7. ACCEPTANCE AND NOTICE BY BORROWER AND ADMINISTRATIVE
\nAGENT. Not later than 11:00 a.m. (New York time) on (x) the third Eurodollar
\nBusiness Day prior to the proposed Drawdown Date, in the case of a LIBOR
\nCompetitive Bid Loan or (y) the proposed Drawdown Date, in the case of an
\nAbsolute Competitive Bid Loan, the Borrower shall notify the Administrative
\nAgent of its acceptance or non-acceptance of each Competitive Bid Quote in
\nsubstantially the form of Exhibit K hereto. The Borrower may accept any
\nCompetitive Bid Quote in whole or in part; provided that:<\/p>\n
(i) the aggregate principal amount of each Competitive Bid
\n Loan may not exceed the applicable amount set forth in the related
\n Competitive Bid Quote Request;<\/p>\n
(ii) acceptance of offers may only be made on the basis of
\n ascending Competitive Bid Margins or Competitive Bid Rates, as the case
\n may be, and<\/p>\n
(iii) the Borrower may not accept any offer that is described
\n in subsection 4.5(c) or that otherwise fails to comply with the
\n requirements of this Agreement.<\/p>\n
The Administrative Agent shall promptly notify each Bank which submitted a
\nCompetitive Bid Quote of the Borrower’s acceptance or non-acceptance thereof. At
\nthe request of any Bank which submitted a Competitive Bid Quote and with the
\nconsent of the Borrower, the Administrative Agent will promptly notify all Banks
\nwhich submitted Competitive Bid Quotes of (a) the aggregate principal amount of,
\nand (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the
\naccepted Competitive Bid Loans for each requested Interest Period.<\/p>\n
SECTION 4.8. ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
\ntwo or more Banks with the same Competitive Bid Margin or Competitive Bid Rate,
\nas the case may be, for a greater aggregate principal amount than the amount in
\nrespect of which offers are accepted for the related Interest Period, the
\nprincipal amount of Competitive Bid Loans in respect of which such offers are
\naccepted shall be allocated by the Administrative Agent among such Banks as<\/p>\n
37<\/p>\n
nearly as possible (in such multiples, not less than $1,000,000, as the
\nAdministrative Agent may deem appropriate) in proportion to the aggregate
\nprincipal amounts of such offers. Determination by the Administrative Agent of
\nthe amounts of Competitive Bid Loans shall be conclusive in the absence of
\nmanifest error.<\/p>\n
SECTION 4.9. FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the
\nDrawdown Date of any Competitive Bid Loan, the Total Commitment has not
\nterminated in full and if, on such Drawdown Date, the applicable conditions of
\nSections 11 and 12 hereof are satisfied, the Bank or Banks whose offers the
\nBorrower has accepted will fund each Competitive Bid Loan so accepted. Such Bank
\nor Banks will make such Competitive Bid Loans by crediting the Administrative
\nAgent for further credit to the Borrower’s specified account with the
\nAdministrative Agent, in immediately available funds not later than 1:00 p.m.
\n(New York time) on such Drawdown Date.<\/p>\n
SECTION 4.10. FUNDING LOSSES. If, after acceptance of any Competitive
\nBid Quote pursuant to Section 4, the Borrower (i) fails to borrow any
\nCompetitive Bid Loan so accepted on the date specified therefor, or (ii) repays
\nthe outstanding amount of the Competitive Bid Loan prior to the last day of the
\nInterest Period relating thereto, the Borrower shall indemnify the Bank making
\nsuch Competitive Bid Quote or funding such Competitive Bid Loan against any loss
\nor expense incurred by reason of the liquidation or reemployment of deposits or
\nother funds acquired by such Bank to fund or maintain such unborrowed
\nCompetitive Bid Loans, including, without limitation compensation as provided in
\nSection 6.7.<\/p>\n
SECTION 4.11. REPAYMENT OF COMPETITIVE BID LOANS; INTEREST. The
\nprincipal of each Competitive Bid Loan shall become absolutely due and payable
\nby the Borrower on the last day of the Interest Period relating thereto, and the
\nBorrower hereby absolutely and unconditionally promises to pay to the
\nAdministrative Agent for the account of the relevant Banks at or before 1:00
\np.m. (New York time) on the last day of the Interest Periods relating thereto
\nthe principal amount of all such Competitive Bid Loans, plus interest thereon at
\nthe applicable rates. The Competitive Bid Loans shall bear interest at the rate
\nper annum specified in the applicable Competitive Bid Quotes. Interest on the
\nCompetitive Bid Loans shall be payable (a) on the last day of the applicable
\nInterest Periods, and if any such Interest Period is longer than three months,
\nalso on the last day of the third month following the commencement of such
\nInterest Period, and (b) on the Revolving Credit Maturity Date for all Revolving
\nCredit Loans. Subject to the terms of this Agreement, the Borrower may make
\nCompetitive Bid Quote Requests with respect to new borrowings of any amounts so
\nrepaid prior to the Revolving Credit Maturity Date.<\/p>\n
SECTION 5. THE TERM LOAN. <\/p>\n
SECTION 5.1. CONVERSION OF REVOLVING CREDIT LOANS; THE TERM LOAN.
\nSubject to the terms and conditions set forth in this Agreement, including,
\nwithout limitation, the satisfaction of the conditions set forth in Section 12
\nhereof and the execution and delivery by the Borrower of the Term Notes to the
\nBanks, on the Revolving Credit Maturity Date the aggregate amount of the
\noutstanding Revolving Credit Loans at such date shall, at the option of the
\nBorrower, be converted into a Term Loan in the aggregate principal amount equal
\nto the aggregate outstanding principal balance of the Revolving Credit Loans on
\nsuch date, held severally by the Banks in accordance with their Commitment
\nPercentages and the Commitments hereunder shall terminate.<\/p>\n
38<\/p>\n
The Term Loan outstanding after conversion shall be evidenced by the separate
\nTerm Notes (the “Term Notes”) of the Borrower payable to the order of each Bank,
\neach dated as of the Revolving Credit Maturity Date and in substantially the
\nform of Exhibit L hereto, completed with appropriate insertions. On the
\nRevolving Credit Maturity Date, the Borrower shall pay to the Administrative
\nAgent for the pro rata accounts of the Banks, all interest accrued to such date
\non the Revolving Credit Loans, any Facility Fees and other fees payable to the
\nAdministrative Agent and the Banks hereunder and, as soon as reasonably
\npracticable after such payment, each Bank shall surrender to the Borrower its
\nRevolving Credit Notes against receipt of its Term Note evidencing the amount of
\nthe outstanding Revolving Credit Loans so converted. The term-out option granted
\nherein may be exercised only once (either on the Initial Maturity Date or the
\nextended Revolving Credit Maturity Date) and must term out all then existing
\nRevolving Credit Loans.<\/p>\n
SECTION 5.2. THE TERM NOTES. Each Term Note shall represent the
\nobligation of the Borrower to pay to such Bank the principal amount of the Term
\nLoan evidenced by the Term Note plus interest accrued thereon, as set forth
\nbelow. The Borrower irrevocably authorizes each Bank to make or cause to be made
\na notation on such Bank’s Term Note Record reflecting the original principal
\namount of such Bank’s Commitment Percentage of the Term Loan and, at or about
\nthe time of such Bank’s receipt of any principal payment on such Bank’s Term
\nNote, an appropriate notation on such Bank’s Term Note Record reflecting such
\npayment. The aggregate unpaid amount set forth on such Bank’s Term Note Record
\nshall be prima facie evidence of the principal amount thereof owing and unpaid
\nto such Bank, but the failure to record, or any error in so recording, any such
\namount on such Bank’s Term Note Record shall not affect the obligations of the
\nBorrower hereunder or under any Term Note to make payments of principal of and
\ninterest on any Term Note when due.<\/p>\n
SECTION 5.3. REPAYMENTS OF THE TERM LOAN. The Borrower promises to pay
\nto the Administrative Agent for the account of the Banks the principal amount of
\nthe Term Loan on the Term Loan Maturity Date in an amount equal to the unpaid
\nbalance of the Term Loan.<\/p>\n
SECTION 5.4. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrower shall have
\nthe right at any time to prepay the Term Loans on or before the Term Loan
\nMaturity Date, as a whole, or in part, upon not less than one (1) Business Day
\nprior written notice to the Administrative Agent, without premium or penalty,
\nprovided that (a) each partial prepayment shall be in the principal amount of
\n$5,000,000 or an integral multiple thereof, (b) any portion of any Eurodollar
\nRate Loan which has been prepaid on any day other than the last day of the
\nInterest Period relating thereto shall be subject to the payment by the Borrower
\nof any applicable costs associated with such prepayment as set forth in Section
\n2.11 hereof, and (c) each partial prepayment shall be allocated among the Banks,
\nin proportion, as nearly as practicable, to the respective outstanding amount of
\neach Bank’s Term Note, with adjustments to the extent practicable to equalize
\nany prior prepayments not exactly in proportion. Any prepayment of principal of
\nthe Term Loan shall include all interest accrued on such amount to the date of
\nprepayment. No amount repaid with respect to the Term Loan may be reborrowed.<\/p>\n
39<\/p>\n
SECTION 5.5. INTEREST ON TERM LOAN. <\/p>\n
SECTION 5.5.1. NOTIFICATION BY BORROWER. The Borrower shall
\n notify the Administrative Agent, such notice to be irrevocable, at
\n least three (3) Eurodollar Business Days prior to the Drawdown Date of
\n the Term Loan if all or any portion of the Term Loan is to be a
\n Eurodollar Rate Loan. After the Term Loan has been made, the provisions
\n of Section 2 shall apply mutatis mutandis with respect to all or any
\n portion of the Term Loan so that the Borrower may have the same
\n interest rate options and interest rates with respect to all or any
\n portion of the Term Loan as it would be entitled to with respect to the
\n Syndicated Loans.<\/p>\n
SECTION 5.5.2. AMOUNTS, ETC. Any portion of the Term Loan
\n which is a Eurodollar Loan relating to any Interest Period shall be in
\n the amount of $5,000,000 or a whole multiple or $1,000,000 in excess
\n thereof. No Interest Period relating to the Term Loan or any portion
\n thereof which is a Eurodollar Loan shall extend beyond the Term Loan
\n Maturity Date.<\/p>\n
SECTION 6. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT.<\/p>\n
SECTION 6.1. PAYMENTS.<\/p>\n
(a) All payments of principal, interest, Reimbursement
\n Obligations, fees (other than the Issuance Fee) and any other amounts
\n due hereunder or under any of the other Loan Documents shall be made to
\n the Administrative Agent at its Head Office in immediately available
\n funds by 11:00 a.m. (New York time) on any due date. Subject to the
\n provisions of Section 30, if a payment is received by the
\n Administrative Agent at or before 1:00 p.m. (New York time) on any
\n Business Day, the Administrative Agent shall on the same Business Day
\n transfer in immediately available funds, as applicable, to (1) each of
\n the Banks, their pro rata portion of such payment in accordance with
\n their respective Commitment Percentages, in the case of payments with
\n respect to Syndicated Loans, Letters of Credit and the Term Loan, (2)
\n BKB in the case of payments with respect to Swing Line Loans, and (3)
\n the appropriate Bank(s), in the case of payments with respect to
\n Competitive Bid Loans. If such payment is received by the
\n Administrative Agent after 1:00 p.m. (New York time) on any Business
\n Day, such transfer shall be made by the Administrative Agent to the
\n applicable Bank(s) on the next Business Day. In the event that the
\n Administrative Agent fails to make such transfer to any Bank as set
\n forth above, the Administrative Agent shall pay to such Bank on demand
\n an amount equal to the product of (i) the average, computed for the
\n period referred to in clause (iii) below, of the weighted average
\n interest rate paid by such Bank for funds acquired by such Bank during
\n each day included in such period, times (ii) the amount (A) equal to
\n such Bank’s Commitment Percentage of such payment in the case of
\n payments under clause (1) above, or (B) of such payment to which such
\n Bank is entitled in the case of payments with respect to Competitive
\n Bid Loans and Swing Line Loans, times (iii) a fraction, the numerator
\n of which is the number of days that elapse from and including the date
\n of payment to and including the date on which the amount due to such
\n Bank shall become immediately available to such Bank, and the
\n denominator of which is 365. A statement of such Bank submitted to the
\n applicable Administrative Agent with respect to any <\/p>\n
40<\/p>\n
amounts owing under this paragraph shall be prima facie evidence of the
\n amount due and owing to such Bank by the Administrative Agent.<\/p>\n
(b) Each Bank that is not incorporated or organized under the
\n laws of the United States of America or a state thereof or the District
\n of Columbia (a “Non-U.S. Bank”) agrees that, prior to the first date on
\n which any payment is due to it hereunder, it will deliver to the
\n Borrower and the Administrative Agent two duly completed copies of
\n United States Internal Revenue Service Form W-8BEN or W-8ECI or
\n successor applicable form, as the case may be, certifying in each case
\n that such Non-U.S. Bank is entitled to receive payments under this
\n Agreement and the Notes payable to it, without deduction or withholding
\n of any United States federal income taxes. Each Non-U.S. Bank that so
\n delivers a Form W-8BEN or W-8ECI pursuant to the preceding sentence
\n further undertakes to deliver to each of the Borrower and the
\n Administrative Agent two further copies of Form W-8BEN or W-8ECI or
\n successor applicable form, or other manner of certification, as the
\n case may be, on or before the date that any such letter or form expires
\n or becomes obsolete or after the occurrence of any event requiring a
\n change in the most recent form previously delivered by it to the
\n Borrower, and such extensions or renewals thereof as may reasonably be
\n requested by the Borrower, certifying in the case of a Form W-8BEN or
\n W-8ECI that such Non-U.S. Bank is entitled to receive payments under
\n this Agreement and the Notes without deduction or withholding of any
\n United States federal income taxes, unless in any such case an event
\n (including, without limitation, any change in treaty, law or
\n regulation) has occurred prior to the date on which any such delivery
\n would otherwise be required which renders all such forms inapplicable
\n or which would prevent such Non-U.S. Bank from duly completing and
\n delivering any such form with respect to it and such Non-U.S. Bank
\n advises the Borrower that it is not capable of receiving payments
\n without any deduction or withholding of United States federal income
\n tax.<\/p>\n
(c) The Borrower shall not be required to pay any additional
\n amounts to any Non-U.S. Bank in respect of United States Federal
\n withholding tax pursuant to Section 18 to the extent that (i) the
\n obligation to withhold amounts with respect to United States Federal
\n withholding tax existed on the date such Non-U.S. Bank became a party
\n to this Agreement or, with respect to payments to a different lending
\n office designated by the Non-U.S. Bank as its applicable lending office
\n (a “New Lending Office”), the date such Non-U.S. Bank designated such
\n New Lending Office with respect to a Loan; provided, however, that this
\n clause (i) shall not apply to any transferee or New Lending Office as a
\n result of an assignment, transfer or designation made at the request of
\n the Borrower; and provided further, however, that this clause (i) shall
\n not apply to the extent the indemnity payment or additional amounts any
\n transferee, or Bank through a New Lending Office, would be entitled to
\n receive without regard to this clause (i) do not exceed the indemnity
\n payment or additional amounts that the Person making the assignment or
\n transfer to such transferee, or Bank making the designation of such New
\n Lending Office, would have been entitled to receive in the absence of
\n such assignment, transfer or designation; or (ii) the obligation to pay
\n such additional amounts would not have arisen but for a failure by such
\n Non-U.S. Bank to comply with the provisions of paragraph (b) above.<\/p>\n
41<\/p>\n
(d) Notwithstanding the foregoing, each Bank agrees to use
\n reasonable efforts (consistent with legal and regulatory restrictions)
\n to change its lending office to avoid or to minimize any amounts
\n otherwise payable under Section 18 in each case solely if such change
\n can be made in a manner so that such Bank, in its sole determination,
\n suffers no legal, economic or regulatory disadvantage.<\/p>\n
SECTION 6.2. COMPUTATIONS. Except as otherwise expressly provided
\nherein, all computations of interest, Facility Fees, Letter of Credit Fees or
\nother fees shall be based on a 360-day year and paid for the actual number of
\ndays elapsed, except that computations based on the Base Rate shall be based on
\na 365 or 366, as applicable, day year and paid for the actual number of days
\nelapsed. Whenever a payment hereunder or under any of the other Loan Documents
\nbecomes due on a day that is not a Business Day, the due date for such payment
\nshall be extended to the next succeeding Business Day, and interest shall accrue
\nduring such extension; provided that for any Interest Period for any Eurodollar
\nLoan if such next succeeding Business Day falls in the next succeeding calendar
\nmonth or after the Revolving Credit Maturity Date, or Term Loan Maturity Date,
\nas the case may be, it shall be deemed to end on the next preceding Business
\nDay.<\/p>\n
SECTION 6.3. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
\nNotwithstanding any other provision of this Agreement (other than Section 6.9),
\nif (a) the introduction of, any change in, or any change in the interpretation
\nof, any law or regulation applicable to any Bank or the Administrative Agent
\nshall make it unlawful, or any central bank or other governmental authority
\nhaving jurisdiction thereof shall assert that it is unlawful, for any Bank or
\nthe Administrative Agent to perform its obligations in respect of any Eurodollar
\nLoans, or (b) if any Bank or the Administrative Agent, as applicable, shall
\nreasonably determine with respect to Eurodollar Loans that (i) by reason of
\ncircumstances affecting any Eurodollar interbank market, adequate and reasonable
\nmethods do not exist for ascertaining the Eurodollar Rate which would otherwise
\nbe applicable during any Interest Period, or (ii) deposits of Dollars in the
\nrelevant amount for the relevant Interest Period are not available to such Bank
\nor the Administrative Agent in any Eurodollar interbank market, or (iii) the
\nEurodollar Rate does not or will not accurately reflect the cost to the Bank or
\nthe Administrative Agent of obtaining or maintaining the Eurodollar Loans during
\nany Interest Period, then such Bank or the Administrative Agent shall promptly
\ngive telephonic, telex or cable notice of such determination to the Borrower
\n(which notice shall be conclusive and binding upon the Borrower). Upon such
\nnotification by the Bank or the Administrative Agent, the obligation of the
\nBanks and the Administrative Agent to make Eurodollar Loans shall be suspended
\nuntil the Banks or the Administrative Agent, as the case may be, determine that
\nsuch circumstances no longer exist, and to the extent permitted by law the
\noutstanding Eurodollar Loans shall continue to bear interest at the applicable
\nrate based on the Eurodollar Rate until the end of the applicable Interest
\nPeriod, and thereafter shall be deemed converted to Base Rate Loans in equal
\nprincipal amounts to such former Eurodollar Loans.<\/p>\n
SECTION 6.4. ADDITIONAL COSTS, ETC. If any present or future applicable
\nlaw (which expression, as used herein, includes statutes, rules and regulations
\nthereunder and interpretations thereof by any competent court or by any
\ngovernmental or other regulatory body or official charged with the
\nadministration or the interpretation thereof and requests, directives,
\ninstructions and notices at any time or from time to time hereafter made upon or
\notherwise issued to any Bank by any <\/p>\n
42<\/p>\n
central bank or other fiscal, monetary or other authority, whether or not having
\nthe force of law) shall:<\/p>\n
(a) subject such Bank to any tax, levy, impost, duty, charge,
\n fee, deduction or withholding of any nature with respect to this
\n Agreement, the other Loan Documents, such Bank’s Commitment or the
\n Loans (other than taxes based upon or measured by the income or profits
\n of such Bank imposed by the jurisdiction of its incorporation or
\n organization, or the location of its lending office); or<\/p>\n
(b) materially change the basis of taxation (except for
\n changes in taxes on income or profits of such Bank imposed by the
\n jurisdiction of its incorporation or organization, or the location of
\n its lending office) of payments to such Bank of the principal or of the
\n interest on any Loans or any other amounts payable to such Bank under
\n this Agreement or the other Loan Documents; or<\/p>\n
(c) except as provided in Section 6.5 or as otherwise
\n reflected in the Base Rate, the Eurodollar Rate, or the applicable rate
\n for Competitive Bid Loans, impose or increase or render applicable
\n (other than to the extent specifically provided for elsewhere in this
\n Agreement) any special deposit, reserve, assessment, liquidity, capital
\n adequacy or other similar requirements (whether or not having the force
\n of law) against assets held by, or deposits in or for the account of,
\n or loans by, or commitments of, an office of any Bank with respect to
\n this Agreement, the other Loan Documents, such Bank’s Commitment or the
\n Loans; or<\/p>\n
(d) impose on such Bank any other conditions or requirements
\n with respect to this Agreement, the other Loan Documents, the Loans,
\n such Bank’s Commitment or any class of loans or commitments of which
\n any of the Loans or such Bank’s Commitment forms a part, and the result
\n of any of the foregoing is:<\/p>\n
(i) to increase the cost to such Bank of making,
\n funding, issuing, renewing, extending or maintaining the Loans
\n or such Bank’s Commitment or issuing or participating in
\n Letters of Credit;<\/p>\n
(ii) to reduce the amount of principal, interest or
\n other amount payable to such Bank hereunder on account of such
\n Bank’s Commitment, the Loans or the Reimbursement Obligations;
\n or<\/p>\n
(iii) to require such Bank to make any payment or to
\n forego any interest or other sum payable hereunder, the amount
\n of which payment or foregone interest or other sum is
\n calculated by reference to the gross amount of any sum
\n receivable or deemed received by such Bank from the Borrower
\n hereunder,<\/p>\n
then, and in each such case, the Borrower will, upon demand
\n made by such Bank at any time and from time to time as often as the
\n occasion therefore may arise (which demand shall be accompanied by a
\n statement setting forth the basis of such demand which shall be
\n conclusive absent manifest error), pay such reasonable additional
\n amounts <\/p>\n
43<\/p>\n
as will be sufficient to compensate such Bank for such additional
\n costs, reduction, payment or foregone interest or other sum.<\/p>\n
SECTION 6.5. CAPITAL ADEQUACY. If any Bank shall have determined that,
\nafter the date hereof, (i) the adoption of any applicable law, rule or
\nregulation regarding capital adequacy, or any change in any such law, rule, or
\nregulation, or any change in the interpretation or administration thereof by any
\ngovernmental authority, central bank or comparable agency charged with the
\ninterpretation or administration thereof, or any request or directive regarding
\ncapital adequacy (whether or not having the force of law) of any such authority,
\ncentral bank or comparable agency, or (ii) compliance by such Bank or the
\nAdministrative Agent or any corporation controlling such Bank or the
\nAdministrative Agent with any law, governmental rule, regulation, policy,
\nguideline or directive (whether or not having the force of law and including any
\ndetermination by such central bank or other governmental authority that for
\npurposes of capital adequacy requirements the Commitments hereunder do not
\nconstitute commitments with an original maturity of one year or less) of any
\nsuch entity regarding capital adequacy, has or would have the effect of reducing
\nthe rate of return on capital of such Bank (or any corporation controlling such
\nBank) as a consequence of such Bank’s obligations hereunder to a level below
\nthat which such Bank (or any corporation controlling such Bank) could have
\nachieved but for such adoption, change, request or directive (taking into
\nconsideration its policies with respect to capital adequacy) by an amount deemed
\nby such Bank to be material, then from time to time, within 15 days after demand
\nby such Bank, the Borrower shall pay to such Bank such additional amount or
\namounts as will, in such Bank’s reasonable determination, fairly compensate such
\nBank (or any corporation controlling such Bank) for such reduction. Each Bank
\nshall allocate such cost increases among its customers in good faith and on an
\nequitable basis.<\/p>\n
SECTION 6.6. CERTIFICATE. A certificate setting forth the additional
\namounts payable pursuant to Section 6.4 or Section 6.5 and a reasonable
\nexplanation of such amounts which are due, submitted by any Bank to the
\nBorrower, shall be conclusive, absent manifest error, that such amounts are due
\nand owing.<\/p>\n
SECTION 6.7. EURODOLLAR AND COMPETITIVE BID INDEMNITY. The Borrower
\nagrees to indemnify the Banks and the Administrative Agent and to hold them
\nharmless from and against any reasonable loss, cost or expense that any such
\nBank and the Administrative Agent may sustain or incur as a consequence of (a)
\nthe default by the Borrower in payment of the principal amount of or any
\ninterest on any Eurodollar Loans or Competitive Bid Loans as and when due and
\npayable, including any such loss or expense arising from interest or fees
\npayable by any Bank or the Administrative Agent to lenders of funds obtained by
\nit in order to maintain its Eurodollar Loans or Competitive Bid Loans, (b) the
\ndefault by the Borrower in making a borrowing of a Eurodollar Loan or
\nCompetitive Bid Loan or conversion of a Eurodollar Loan or a prepayment of a
\nEurodollar or Competitive Bid Loan other than pursuant to Section 2.5(b) after
\nthe Borrower has given (or is deemed to have given) a Syndicated Loan Request, a
\nnotice pursuant to Section 2.7 or a Notice of Acceptance\/Rejection of
\nCompetitive Bid Quote(s), or a notice pursuant to Section 2.11, and (c) the
\nmaking of any payment of a Eurodollar Loan or Competitive Bid Loan, or the
\nmaking of any conversion of any Eurodollar Loan to a Base Rate Loan on a day
\nthat is not the last day of the applicable Interest Period with respect thereto.
\nSuch loss, cost, or reasonable expense shall include an amount equal to the
\nexcess, if any, as reasonably determined by each Bank of (i) its<\/p>\n
44<\/p>\n
cost of obtaining the funds for (A) the Eurodollar Loan being paid, prepaid,
\nconverted, not converted, reallocated, or not borrowed, as the case may be
\n(based on the Eurodollar Rate), or (B) the Competitive Bid Loan being paid,
\nprepaid, or not borrowed, as the case may be (based on the applicable interest
\nrate) for the period from the date of such payment, prepayment, conversion, or
\nfailure to borrow or convert, as the case may be, to the last day of the
\nInterest Period for such Loan (or, in the case of a failure to borrow, the
\nInterest Period for the Loan which would have commenced on the date of such
\nfailure to borrow) over (ii) the amount of interest (as reasonably determined by
\nsuch Bank) that would be realized by such Bank in reemploying the funds so paid,
\nprepaid, converted, or not borrowed, converted, or prepaid for such period or
\nInterest Period, as the case may be, which determinations shall be conclusive
\nabsent manifest error.<\/p>\n
SECTION 6.8. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
\nextent permitted by applicable law) interest on the Loans and all other overdue
\namounts payable hereunder or under any of the other Loan Documents shall bear
\ninterest compounded monthly and payable on demand at a rate per annum equal to
\nthe Base Rate plus 2%, until such amount shall be paid in full (after as well as
\nbefore judgment).<\/p>\n
SECTION 6.9. INTEREST LIMITATION. Notwithstanding any other term of
\nthis Agreement or the Notes, any other Loan Document or any other document
\nreferred to herein or therein, the maximum amount of interest which may be
\ncharged to or collected from any Person liable hereunder or under the Notes by
\nany Bank shall be absolutely limited to, and shall in no event exceed, the
\nmaximum amount of interest which could lawfully be charged or collected by such
\nBank under applicable laws (including, to the extent applicable, the provisions
\nof Section 5197 of the Revised Statutes of the United States of America, as
\namended, and 12 U.S.C. Section 85, as amended).<\/p>\n
SECTION 6.10. REASONABLE EFFORTS TO MITIGATE. Each Bank agrees that as
\npromptly as practicable after it becomes aware of the occurrence of an event or
\nthe existence of a condition that would cause it to be affected under Sections
\n6.3, 6.4 or 6.5, such Bank will give notice thereof to the Borrower, with a copy
\nto the Administrative Agent and, to the extent so requested by the Borrower and
\nnot inconsistent with such Bank’s internal policies, such Bank shall use
\nreasonable efforts and take such actions as are reasonably appropriate if as a
\nresult thereof the additional moneys which would otherwise be required to be
\npaid to such Bank pursuant to such sections would be materially reduced, or the
\nillegality or other adverse circumstances which would otherwise require a
\nconversion of such Loans or result in the inability to make such Loans pursuant
\nto such sections would cease to exist, and in each case if, as determined by
\nsuch Bank in its sole discretion, the taking of such actions would not adversely
\naffect such Loans or such Bank or otherwise be disadvantageous to such Bank.<\/p>\n
SECTION 6.11. REPLACEMENT OF BANKS. If any Bank (an “Affected Bank”)
\n(i) makes demand upon the Borrower for (or if the Borrower is otherwise required
\nto pay) amounts pursuant to Sections 6.4 or 6.5, (ii) is unable to make or
\nmaintain Eurodollar Loans as a result of a condition described in Section 6.3,
\n(iii) defaults in its obligation to make Loans or to participate in Letters of
\nCredit in accordance with the terms of this Agreement (such Bank being referred
\nto as a “Defaulting Bank”) or (iv) fails to agree to extend the Revolving Credit
\nMaturity Date pursuant to Section 2.10, the Borrower may, within 90 days of
\nreceipt of such demand, notice (or the occurrence<\/p>\n
45<\/p>\n
of such other event causing the Borrower to be required to pay such
\ncompensation or causing Section 6.3 to be applicable), or default, as the case
\nmay be, by notice (a “Replacement Notice”) in writing to the Administrative
\nAgent and such Affected Bank (A) request the Affected Bank to cooperate with the
\nBorrower in obtaining a replacement bank satisfactory to the Administrative
\nAgent and the Borrower (the “Replacement Bank”) as provided herein, but none of
\nsuch Banks shall be under an obligation to find a Replacement Bank; (B) request
\nthe non-Affected Banks to acquire and assume all of the Affected Bank’s Loans
\nand Commitment, and to participate in Letters of Credit as provided herein, but
\nnone of such Banks shall be under an obligation to do so; or (C) designate a
\nReplacement Bank reasonably satisfactory to the Administrative Agent. If any
\nsatisfactory Replacement Bank shall be obtained, and\/or any of the non-Affected
\nBanks shall agree to acquire and assume all of the Affected Bank’s Loans and
\nCommitment, and to participate in Letters of Credit then such Affected Bank
\nshall, so long as no Event of Default shall have occurred and be continuing,
\nassign, in accordance with Section 21, all of its Commitment, Loans, Notes and
\nother rights and obligations under this Agreement and all other Loan Documents
\nto such Replacement Bank or non-Affected Banks, as the case may be, in exchange
\nfor payment of the principal amount so assigned and all interest and fees
\naccrued on the amount so assigned, plus all other Obligations then due and
\npayable to the Affected Bank; provided, however, that (x) such assignment shall
\nbe without recourse, representation or warranty and shall be on terms and
\nconditions reasonably satisfactory to such Affected Bank and such Replacement
\nBank and\/or non-Affected Banks, as the case may be, and (y) prior to any such
\nassignment, the Borrower shall have paid to such Affected Bank all amounts
\nproperly demanded and unreimbursed under Sections 6.4, 6.5 and 6.7. Upon the
\neffective date of such assignment, the Borrower shall issue replacement Notes to
\nsuch Replacement Bank and\/or non-Affected Banks, as the case may be, and such
\nReplacement Bank shall become a “Bank” for all purposes under this Agreement and
\nthe other Loan Documents.<\/p>\n
SECTION 6.12. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative
\nAgent may (unless earlier notified to the contrary by any Bank by 12:00 noon
\n(New York time) one (1) Business Day prior to any Drawdown Date) assume that
\neach Bank has made available (or will before the end of such Business Day make
\navailable) to the Administrative Agent the amount of such Bank’s Commitment
\nPercentage with respect to the Loans (or, in the case of Competitive Bid Loans,
\nthe amount of such Bank’s accepted offers of such Loans, if any) to be made on
\nsuch Drawdown Date, and the Administrative Agent may (but shall not be required
\nto), in reliance upon such assumption, make available to the Borrower a
\ncorresponding amount. If any Bank makes such amount available to the
\nAdministrative Agent on a date after such Drawdown Date, such Bank shall pay the
\nAdministrative Agent on demand an amount equal to the product of (i) the
\naverage, computed for the period referred to in clause (iii) below, of the
\nweighted average annual interest rate paid by the Administrative Agent for
\nfederal funds acquired by the Administrative Agent during each day included in
\nsuch period times (ii) the amount equal to such Bank’s Commitment Percentage of
\nsuch Syndicated Loan (or, in the case of Competitive Bid Loans and Swing Line
\nLoans, the amount of such Bank’s accepted offer of such Competitive Bid Loans,
\nif any, and portion of such Swing Line Loans) or the Term Loan, as the case may
\nbe, times (iii) a fraction, the numerator of which is the number of days that
\nelapse from and including such Drawdown Date to but not including the date on
\nwhich the amount equal to such Bank’s Commitment Percentage of such Loans, or
\nthe amount of such Bank’s accepted offers of such Competitive Bid Loans, if any,
\nand portion of Swing Line Loans, shall become immediately<\/p>\n
46<\/p>\n
available to the Administrative Agent, and the denominator of which is 365. A
\nstatement of the Administrative Agent submitted to such Bank with respect to any
\namounts owing under this paragraph shall be prima facie evidence of the amount
\ndue and owing to the Administrative Agent by such Bank. If such amount is not in
\nfact made available to the Administrative Agent by such Bank within three (3)
\nBusiness Days of such Drawdown Date, the Administrative Agent shall be entitled
\nto recover such amount from such Borrower, with interest thereon at the
\napplicable rate per annum.<\/p>\n
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Borrower (and the
\nGuarantor, where applicable) represents and warrants to the Banks that:<\/p>\n
SECTION 7.1. CORPORATE AUTHORITY.<\/p>\n
(a) INCORPORATION; GOOD STANDING. The Borrower and each of its
\n Subsidiaries (i) is duly organized, validly existing and in good
\n standing under the laws of its respective jurisdiction of formation,
\n (ii) has all requisite corporate power to own its property and conduct
\n its business as now conducted and as presently contemplated, and (iii)
\n is in good standing and is duly authorized to do business in each
\n jurisdiction in which its property or business as presently conducted
\n or contemplated makes such qualification necessary, except where a
\n failure to be so qualified would not have a material adverse effect on
\n the business, assets or financial condition of the Borrower and its
\n Subsidiaries as a whole.<\/p>\n
(b) AUTHORIZATION. The execution, delivery and performance of
\n its Loan Documents and the transactions contemplated hereby and thereby
\n (i) are within the corporate authority of the Borrower and the
\n Guarantor, (ii) have been duly authorized by all necessary corporate
\n proceedings on the part of each of the Borrower and the Guarantor,
\n (iii) do not conflict with or result in any breach or contravention of
\n any provision of law, statute, rule or regulation to which any of the
\n Borrower or the Guarantor or any of their Subsidiaries is subject or
\n any judgment, order, writ, injunction, license or permit applicable to
\n the Borrower, the Guarantor or any of their Subsidiaries so as to
\n materially adversely affect the assets, business or any activity of the
\n Borrower, the Guarantor and their Subsidiaries as a whole, and (iv) do
\n not conflict with any provision of the corporate charter or bylaws of
\n the Borrower, the Guarantor or any Subsidiary or any agreement or other
\n instrument binding upon the Borrower, the Guarantor or any of their
\n Subsidiaries.<\/p>\n
(c) ENFORCEABILITY. The execution, delivery and performance of
\n the Loan Documents by the Borrower and the Guarantor will result in
\n valid and legally binding obligations of the Borrower and the Guarantor
\n enforceable against them in accordance with the respective terms and
\n provisions hereof and thereof, except as enforceability is limited by
\n bankruptcy, insolvency, reorganization, moratorium or other laws
\n relating to or affecting generally the enforcement of creditors’ rights
\n and except to the extent that availability of the remedy of specific
\n performance or injunctive relief is subject to the discretion of the
\n court before which any proceeding therefor may be brought.<\/p>\n
47<\/p>\n
SECTION 7.2. GOVERNMENTAL AND OTHER APPROVALS. The execution, delivery
\nand performance of the Loan Documents by the Borrower and the Guarantor and the
\nconsummation by the Borrower and the Guarantor of the transactions contemplated
\nhereby and thereby do not require any approval or consent of, or filing with,
\nany governmental agency or authority or other third party other than those
\nalready obtained and those required after the date hereof in connection with the
\nBorrower’s and its Subsidiaries’ performance of their covenants contained in
\nSections 8, 9 and 10 hereof.<\/p>\n
SECTION 7.3. TITLE TO PROPERTIES; LEASES. The Borrower and its
\nSubsidiaries own all of the assets reflected in the consolidated balance sheet
\nas at the Interim Balance Sheet Date or acquired since that date (except
\nproperty and assets operated under capital leases or sold or otherwise disposed
\nof in the ordinary course of business since that date), subject to no mortgages,
\nCapitalized Leases, conditional sales agreements, title retention agreements,
\nliens or other encumbrances except Permitted Liens.<\/p>\n
SECTION 7.4. FINANCIAL STATEMENTS; SOLVENCY.<\/p>\n
(a) There have been furnished to the Banks consolidated
\n balance sheets of the Borrower and its Subsidiaries dated the Balance
\n Sheet Date and consolidated statements of operations for the fiscal
\n periods then ended, certified by the Accountants. In addition, there
\n have been furnished to the Banks consolidated balance sheets of the
\n Borrower and its Subsidiaries dated the Interim Balance Sheet Date and
\n the related consolidated statements of operation for the fiscal quarter
\n ending on the Interim Balance Sheet Date. All said balance sheets and
\n statements of operations have been prepared in accordance with GAAP
\n (but, in the case of any of such financial statements which are
\n unaudited, only to the extent GAAP is applicable to interim unaudited
\n reports), fairly present the financial condition of the Borrower and
\n its Subsidiaries on a consolidated basis as at the close of business on
\n the dates thereof and the results of operations for the periods then
\n ended, subject, in the case of unaudited interim financial statements,
\n to changes resulting from audit and normal year-end adjustments and to
\n the absence of complete footnotes. There are no contingent liabilities
\n of the Borrower and its Subsidiaries involving material amounts, known
\n to the officers of the Borrower or Guarantor which have not been
\n disclosed in said balance sheets and the related notes thereto or
\n otherwise in writing to the Banks.<\/p>\n
(b) The Borrower and its Subsidiaries on a consolidated basis
\n (both before and after giving effect to the transactions contemplated
\n by this Agreement) are solvent (i.e., they have assets having a fair
\n value in excess of the amount required to pay their probable
\n liabilities on their existing debts as they become absolute and
\n matured) and have, and expect to have, the ability to pay their debts
\n from time to time incurred in connection therewith as such debts
\n mature.<\/p>\n
SECTION 7.5. NO MATERIAL CHANGES, ETC. Since the Interim Balance Sheet
\nDate, there have occurred no material adverse changes in the consolidated
\nfinancial condition, business, assets or liabilities (contingent or otherwise)
\nof the Borrower and its Subsidiaries, taken together, as shown on or reflected
\nin the consolidated balance sheets of the Borrower and its Subsidiaries as at
\nthe Interim Balance Sheet Date, or the consolidated statements of income for the
\nperiod then <\/p>\n
48<\/p>\n
ended other than changes in the ordinary course of business which have not had
\nany material adverse effect either individually or in the aggregate on the
\nfinancial condition, business, assets or liabilities (contingent or otherwise)
\nof the Borrower and its Subsidiaries, taken together. Since the Interim Balance
\nSheet Date, there have not been any Distributions other than as permitted by
\nSection 9.5 hereof.<\/p>\n
SECTION 7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and
\neach of its Subsidiaries possess all franchises, patents, copyrights,
\ntrademarks, trade names, licenses and permits, and rights in respect of the
\nforegoing, adequate for the conduct of their business substantially as now
\nconducted (other than those the absence of which would not have a material
\nadverse effect on the business, operations or financial condition of the
\nBorrower and its Subsidiaries as a whole) without known conflict with any rights
\nof others other than a conflict which would not have a material adverse effect
\non the financial condition, business or assets of the Borrower and its
\nSubsidiaries as a whole.<\/p>\n
SECTION 7.7. LITIGATION. Except as set forth on Schedule 7.7 or in the
\nDisclosure Documents, there are no actions, suits, proceedings or investigations
\nof any kind pending or, to the knowledge of the Borrower or any of its
\nSubsidiaries, threatened against the Borrower or any of its Subsidiaries before
\nany court, tribunal or administrative agency or board which, either in any case
\nor in the aggregate, could reasonably be expected to have a material adverse
\neffect on the financial condition, business, or assets of the Borrower and its
\nSubsidiaries, considered as a whole, or materially impair the right of the
\nBorrower and its Subsidiaries, considered as a whole, to carry on business
\nsubstantially as now conducted, or result in any substantial liability not
\nadequately covered by insurance, or for which adequate reserves are not
\nmaintained on the consolidated balance sheet or which question the validity of
\nany of the Loan Documents to which the Borrower or any of its Subsidiaries is a
\nparty, or any action taken or to be taken pursuant hereto or thereto.<\/p>\n
SECTION 7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower
\nnor any of its Subsidiaries is subject to any charter, corporate or other legal
\nrestriction, or any judgment, decree, order, rule or regulation which in the
\njudgment of the Borrower’s or such Subsidiary’s officers has or could reasonably
\nbe expected in the future to have a materially adverse effect on the business,
\nassets or financial condition of the Borrower and its Subsidiaries, considered
\nas a whole. Neither the Borrower nor any of its Subsidiaries is a party to any
\ncontract or agreement which in the judgment of the Borrower’s or its
\nSubsidiary’s officers has or could reasonably be expected to have any materially
\nadverse effect on the financial condition, business or assets of the Borrower
\nand its Subsidiaries, considered as a whole, except as otherwise reflected in
\nadequate reserves as required by GAAP.<\/p>\n
SECTION 7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
\nBorrower nor any of its Subsidiaries is (a) violating any provision of its
\ncharter documents or by-laws or (b) violating any agreement or instrument to
\nwhich any of them may be subject or by which any of them or any of their
\nproperties may be bound or any decree, order, judgment, or any statute, license,
\nrule or regulation, in a manner which could (in the case of such agreements or
\nsuch instruments) reasonably be expected to result in the imposition of
\nsubstantial penalties or <\/p>\n
49<\/p>\n
materially and adversely affect the financial condition, business or assets of
\nthe Borrower and its Subsidiaries, considered as a whole.<\/p>\n
SECTION 7.10. TAX STATUS. The Borrower and its Subsidiaries have filed
\nall federal, state, provincial and territorial income and all other tax returns,
\nreports and declarations (or obtained extensions with respect thereto) required
\nby applicable law to be filed by them (unless and only to the extent that the
\nBorrower or such Subsidiary has set aside on its books provisions reasonably
\nadequate for the payment of all unpaid and unreported taxes as required by
\nGAAP); and have paid all taxes and other governmental assessments and charges
\n(other than taxes, assessments and other governmental charges imposed by
\njurisdictions other than the United States, Canada or any political subdivision
\nthereof which in the aggregate are not material to the financial condition,
\nbusiness or assets of the Borrower or such Subsidiary on an individual basis or
\nof the Borrower and its Subsidiaries on a consolidated basis) that are material
\nin amount, shown or determined to be due on such returns, reports and
\ndeclarations, except those being contested in good faith; and, as required by
\nGAAP, have set aside on their books provisions reasonably adequate for the
\npayment of all taxes for periods subsequent to the periods to which such
\nreturns, reports or declarations apply. Except to the extent contested in the
\nmanner permitted in the preceding sentence, there are no unpaid taxes in any
\nmaterial amount claimed by the taxing authority of any jurisdiction to be due
\nand owing by the Borrower or any Subsidiary, nor do the officers of the Borrower
\nor any of its Subsidiaries know of any basis for any such claim.<\/p>\n
SECTION 7.11. NO EVENT OF DEFAULT. (a) No Default or Event of Default
\nhas occurred hereunder and is continuing, and (b) no “Default” or “Event of
\nDefault” (as defined in the Revolving Credit Facility or the European Credit
\nFacilities, respectively) under the Revolving Credit Facility or the European
\nCredit Facilities, respectively, has occurred and is continuing, or would be
\ncreated by the incurrence of Indebtedness under this Agreement.<\/p>\n
SECTION 7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
\nBorrower nor any of its Subsidiaries is a “holding company”, or a “subsidiary
\ncompany” of a “holding company”, or an “affiliate” of a “holding company”, as
\nsuch terms are defined in the Public Utility Holding Company Act of 1935; nor is
\nany of them a “registered investment company”, or an “affiliated company” or a
\n“principal underwriter” of a “registered investment company”, as such terms are
\ndefined in the Investment Company Act of 1940.<\/p>\n
SECTION 7.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except as permitted
\nby Section 9.2 of this Agreement, there is no Indebtedness senior to the
\nObligations, and there is no effective financing statement, security agreement,
\nchattel mortgage, real estate mortgage or other document filed or recorded with
\nany filing records, registry, or other public office, which purports to cover,
\naffect or give notice of any present or possible future lien on, or security
\ninterest in, any assets or property of the Borrower or any of its Subsidiaries
\nor right thereunder.<\/p>\n
SECTION 7.14. EMPLOYEE BENEFIT PLANS. <\/p>\n
SECTION 7.14.1. IN GENERAL. Each Employee Benefit Plan has
\n been maintained and operated in compliance in all material respects
\n with the provisions of ERISA and\/or all Applicable Canadian Pension
\n Legislation, as applicable, and, to the extent applicable, the <\/p>\n
50<\/p>\n
Code, including but not limited to the provisions thereunder respecting
\n prohibited transactions. Promptly upon the request of any Bank or the
\n Administrative Agent, the Borrower will furnish to the Administrative
\n Agent the most recently completed annual report, Form 5500, with all
\n required attachments, and actuarial statement required to be submitted
\n under Section 103(d) of ERISA, with respect to each Guaranteed Pension
\n Plan.<\/p>\n
SECTION 7.14.2. TERMINABILITY OF WELFARE PLANS. Under each
\n Employee Benefit Plan which is an employee welfare benefit plan within
\n the meaning of Section 3(1) or Section 3(2)(B) of ERISA, no benefits
\n are due unless the event giving rise to the benefit entitlement occurs
\n prior to plan termination (except as required by Title I, Part 6 of
\n ERISA) . The Borrower or an ERISA Affiliate, as appropriate, may
\n terminate each such Plan at any time (or at any time subsequent to the
\n expiration of any applicable bargaining agreement) in the discretion of
\n the Borrower or such ERISA Affiliate without liability to any Person.<\/p>\n
SECTION 7.14.3. GUARANTEED PENSION PLANS. Each contribution
\n required to be made to a Guaranteed Pension Plan, whether required to
\n be made to avoid the incurrence of an accumulated funding deficiency,
\n the notice or lien provisions of Section 302(f) of ERISA, or otherwise,
\n has been timely made. No waiver of an accumulated funding deficiency or
\n extension of amortization periods has been received with respect to any
\n Guaranteed Pension Plan. No liability to the PBGC (other than required
\n insurance premiums, all of which have been paid) has been incurred by
\n the Borrower or any ERISA Affiliate with respect to any Guaranteed
\n Pension Plan (other than Terminated Plans) and there has not been any
\n ERISA Reportable Event, or any other event or condition which presents
\n a material risk of termination of any Guaranteed Pension Plan by the
\n PBGC. Other than with respect to the Terminated Plans, based on the
\n latest valuation of each Guaranteed Pension Plan (which in each case
\n occurred within twelve months of the date of this representation), and
\n on the actuarial methods and assumptions employed for that valuation,
\n the aggregate benefit liabilities of all such Guaranteed Pension Plans
\n within the meaning of Section 4001 of ERISA did not exceed the
\n aggregate value of the assets of all such Guaranteed Pension Plans,
\n disregarding for this purpose the benefit liabilities and assets of any
\n Guaranteed Pension Plan with assets in excess of benefit liabilities.<\/p>\n
SECTION 7.14.4. MULTIEMPLOYER PLANS. Neither the Borrower nor
\n any ERISA Affiliate has incurred any material liability (including
\n secondary liability) to any Multiemployer Plan as a result of a
\n complete or partial withdrawal from such Multiemployer Plan under
\n Section 4201 of ERISA or as a result of a sale of assets described in
\n Section 4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has
\n been notified that any Multiemployer Plan is in reorganization or
\n insolvent under and within the meaning of Section 4241 or Section 4245
\n of ERISA or that any Multiemployer Plan intends to terminate or has
\n been terminated under Section 4041A of ERISA.<\/p>\n
SECTION 7.15. ENVIRONMENTAL COMPLIANCE. The Borrower and its
\nSubsidiaries have taken all necessary steps to investigate the past and present
\ncondition and usage of the Real Property and the operations conducted by the
\nBorrower and its Subsidiaries and, based upon such diligent investigation, have
\ndetermined that, except as set forth on Schedule 7.15 or in the Disclosure
\nDocuments:<\/p>\n
51<\/p>\n
(a) Neither the Borrower, its Subsidiaries, nor any operator
\n of their properties, is in violation, or alleged violation, of any
\n judgment, decree, order, law, permit, license, rule or regulation
\n pertaining to environmental matters, including without limitation,
\n those arising under the Resource Conservation and Recovery Act
\n (“RCRA”), the Comprehensive Environmental Response, Compensation and
\n Liability Act of 1980 as amended (“CERCLA”), the Superfund Amendments
\n and Reauthorization Act of 1986 (“SARA”), the Federal Clean Water Act,
\n the Federal Clean Air Act, the Toxic Substances Control Act, or any
\n applicable international, federal, state, provincial, territorial or
\n local statute, regulation, ordinance, order or decree relating to
\n health, safety, waste transportation or disposal, or the environment
\n (the “Environmental Laws”), which violation, individually or in the
\n aggregate, would have a material adverse effect on the business, assets
\n or financial condition of the Borrower and its Subsidiaries on a
\n consolidated basis.<\/p>\n
(b) Except with respect to any such matters which individually
\n or in the aggregate would not reasonably be expected to have a material
\n adverse effect on the business, assets or financial condition of the
\n Borrower and its Subsidiaries on a consolidated basis, neither the
\n Borrower nor any of its Subsidiaries has received notice from any third
\n party including, without limitation: any federal, state, provincial,
\n territorial or local governmental authority, (i) that any one of them
\n has been identified by the United States Environmental Protection
\n Agency (“EPA”) as a potentially responsible party under CERCLA with
\n respect to a site listed on the National Priorities List, 40 C.F.R.
\n Part 300 Appendix B; (ii) that any hazardous waste, as defined by 42
\n U.S.C. Section 6903(5), any hazardous substances as defined by 42
\n U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42
\n U.S.C. Section 9601(33) or any toxic substance, oil or hazardous
\n materials or other chemicals or substances regulated by any
\n Environmental Laws, excluding household hazardous waste (“Hazardous
\n Substances”), which any one of them has generated, transported or
\n disposed of, has been found at any site at which a federal, state,
\n provincial, territorial or local agency or other third party has
\n conducted or has ordered that the Borrower or any of its Subsidiaries
\n conduct a remedial investigation, removal or other response action
\n pursuant to any Environmental Law; or (iii) that it is or shall be a
\n named party to any claim, action, cause of action, complaint, legal or
\n administrative proceeding arising out of any third party’s incurrence
\n of costs, expenses, losses or damages of any kind whatsoever in
\n connection with the Release of Hazardous Substances.<\/p>\n
(c) (i) No portion of the Real Property or other assets of the
\n Borrower and its Subsidiaries has been used for the handling,
\n processing, storage or disposal of Hazardous Substances except in
\n accordance with applicable Environmental Laws, except as would not
\n reasonably be expected to have a material adverse effect on the
\n business, assets or financial condition of the Borrower and its
\n Subsidiaries on a consolidated basis; (ii) in the course of any
\n activities conducted by the Borrower, its Subsidiaries, or operators of
\n the Real Property or other assets of the Borrower and its Subsidiaries,
\n no Hazardous Substances have been generated or are being used on such
\n properties except in accordance with applicable Environmental Laws,
\n except for occurrences that would not have a material adverse effect on
\n the business, assets or financial condition of the<\/p>\n
52<\/p>\n
Borrower and its Subsidiaries on a consolidated basis; (iii) there have
\n been no unpermitted Releases or threatened Releases of Hazardous
\n Substances on, upon, into or from the Real Property or other assets of
\n the Borrower or its Subsidiaries, which Releases would have a material
\n adverse effect on the value of such properties; (iv) to the best of the
\n Borrower’s and its Subsidiaries’ knowledge, there have been no Releases
\n on, upon, from or into any real property in the vicinity of the Real
\n Property or other assets of the Borrower or its Subsidiaries which,
\n through soil or groundwater contamination, may have come to be located
\n on, and which would reasonably be expected to have a material adverse
\n effect on the value of, such properties; and (v) in addition, any
\n Hazardous Substances that have been generated on the Real Property or
\n other assets of the Borrower or its Subsidiaries have been transported
\n offsite only by carriers having an identification number issued by the
\n EPA, treated or disposed of only by treatment or disposal facilities
\n maintaining valid permits as required under applicable Environmental
\n Laws, which transporters and facilities have been and are, to the best
\n of the Borrower’s and its Subsidiaries’ knowledge, operating in
\n compliance with such permits and applicable Environmental Laws.<\/p>\n
(d) None of the Real Property or other assets of the Borrower
\n or its Subsidiaries or any of the stock (or assets) being acquired with
\n proceeds of Loans is or shall be subject to any applicable
\n environmental clean-up responsibility law or environmental restrictive
\n transfer law or regulation, by virtue of the transactions set forth
\n herein and contemplated hereby.<\/p>\n
SECTION 7.16. TRUE COPIES OF CHARTER AND OTHER DOCUMENTS. Each of the
\nBorrower and the Guarantor has furnished the Administrative Agent as of the
\nEffective Date, true and complete copies of (a) all charter and other
\nincorporation documents (together with any amendments thereto) and (b) by-laws
\n(together with any amendments thereto).<\/p>\n
SECTION 7.17. DISCLOSURE. No representation or warranty made by the
\nBorrower or the Guarantor in this Agreement or in any agreement, instrument,
\ndocument, certificate, statement or letter furnished to the Banks or the
\nAdministrative Agent by or on behalf of or at the request of the Borrower and
\nthe Guarantor in connection with any of the transactions contemplated by the
\nLoan Documents contains any untrue statement of a material fact or omits to
\nstate a material fact necessary in order to make the statements contained
\ntherein not misleading in light of the circumstances in which they are made.<\/p>\n
SECTION 7.18. PERMITS AND GOVERNMENTAL AUTHORITY. All permits (other
\nthan those the absence of which would not have a material adverse effect on the
\nbusiness, operations or financial condition of the Borrower and its Subsidiaries
\nas a whole) required for the construction and operation of all landfills
\ncurrently owned or operated by the Borrower or any of its Subsidiaries have been
\nobtained and remain in full force and effect and are not subject to any appeals
\nor further proceedings or to any unsatisfied conditions that may allow material
\nmodification or revocation. Neither the Borrower nor any of its Subsidiaries,
\nnor, to the knowledge of the Borrower and its Subsidiaries, the holder of such
\npermits is in violation of any such permits, except for any violation which
\nwould not have a material adverse effect on the business, operations or
\nfinancial condition of the Borrower and its Subsidiaries as a whole.<\/p>\n
53<\/p>\n
SECTION 7.19. YEAR 2000 COMPLIANCE. The Borrower and its Subsidiaries
\nhave (i) reviewed the areas within their businesses and operations which could
\nbe adversely affected by failure to become “Year 2000 Compliant” (i.e. that
\ncomputer applications, imbedded microchips and other systems used by the
\nBorrower or any of its Subsidiaries or any of their material vendors or
\ncustomers, will be able properly to recognize and perform properly
\ndate-sensitive functions involving certain dates prior to and any date after
\nDecember 31, 1999), (ii) developed a detailed plan and timetable to become Year
\n2000 Compliant in a timely manner, and (iii) committed adequate resources to
\nsupport the Year 2000 plan of the Borrower and its Subsidiaries. Based upon such
\nreview, the Borrower reasonably believes that the Borrower and its Subsidiaries,
\nas well as their material vendors and customers, will become “Year 2000
\nCompliant” in a timely manner except to the extent that failure to do so will
\nnot have any materially adverse effect on the business or financial condition of
\nthe Borrower or any of its Subsidiaries.<\/p>\n
SECTION 7.20. USE OF PROCEEDS. The proceeds of the Loans shall be used
\nfor general corporate purposes.<\/p>\n
SECTION 8. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower agrees
\nthat, so long as any Obligation or any Letter of Credit is outstanding or the
\nBanks have any obligation to make Loans, or any Issuing Bank has any obligation
\nto issue, extend or renew any Letters of Credit hereunder, or the Banks have any
\nobligations to reimburse any Issuing Bank for drawings honored under any Letter
\nof Credit, it shall, and shall cause its Subsidiaries to, comply with the
\nfollowing covenants:<\/p>\n
SECTION 8.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually
\npay or cause to be paid the principal and interest on the Loans, all
\nReimbursement Obligations, fees and other amounts provided for in this Agreement
\nand the other Loan Documents, all in accordance with the terms of this Agreement
\nand such other Loan Documents.<\/p>\n
SECTION 8.2. MAINTENANCE OF U.S. OFFICE. The Borrower will maintain its
\nchief executive offices at Houston, Texas, or at such other place in the United
\nStates of America as the Borrower shall designate upon 30 days’ prior written
\nnotice to the Administrative Agent.<\/p>\n
SECTION 8.3. RECORDS AND ACCOUNTS. The Borrower will, and will cause
\neach of its Subsidiaries to, keep true and accurate records and books of account
\nin which full, true and correct entries will be made in accordance with GAAP and
\nwith the requirements of all regulatory authorities and maintain adequate
\naccounts and reserves for all taxes (including income taxes), depreciation,
\ndepletion, obsolescence and amortization of its properties, all other
\ncontingencies, and all other proper reserves.<\/p>\n
SECTION 8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
\nBorrower will deliver to the Banks:<\/p>\n
(a) as soon as practicable, but, in any event not later than
\n 92 days after the end of each fiscal year of the Borrower, the
\n consolidated balance sheet of the Borrower and its Subsidiaries as at
\n the end of such year, consolidated statements of cash flows, and the
\n related consolidated statements of operations, each setting forth in
\n comparative form the figures for the previous fiscal year, all such
\n consolidated financial statements to be in<\/p>\n
54<\/p>\n
reasonable detail, prepared, in accordance with GAAP and, with respect
\n to the consolidated financial statements, certified by
\n PricewaterhouseCoopers LLP or Arthur Andersen LLP or by other
\n independent auditors selected by the Borrower and reasonably
\n satisfactory to the Banks (the “Accountants”). In addition,
\n simultaneously therewith, the Borrower shall provide the Banks with a
\n written statement from such Accountants to the effect that they have
\n read a copy of this Agreement, and that, in making the examination
\n necessary to said certification, they have obtained no knowledge of any
\n Default or Event of Default, or, if such Accountants shall have
\n obtained knowledge of any then existing Default or Event of Default
\n they shall disclose in such statement any such Default or Event of
\n Default;<\/p>\n
(b) as soon as practicable, but in any event not later than 47
\n days after the end of each of the first three fiscal quarters of each
\n fiscal year of the Borrower, copies of the consolidated balance sheet
\n and statement of operations of the Borrower and its Subsidiaries as at
\n the end of such quarter, subject to year-end adjustments, and the
\n related consolidated statement of cash flows, all in reasonable detail
\n and prepared in accordance with GAAP (to the extent GAAP is applicable
\n to interim unaudited financial statements) with a certification by the
\n principal financial or accounting officer of the Borrower (the “CFO or
\n the CAO”) that the consolidated financial statements are prepared in
\n accordance with GAAP (to the extent GAAP is applicable to interim
\n unaudited financial statements) and fairly present the consolidated
\n financial condition of the Borrower and its Subsidiaries on a
\n consolidated basis as at the close of business on the date thereof and
\n the results of operations for the period then ended, it being
\n understood that no such statement need be accompanied by complete
\n footnotes;<\/p>\n
(c) simultaneously with the delivery of the financial
\n statements referred to in (a) and (b) above, a certificate in the form
\n of Exhibit F hereto (the “Compliance Certificate”) signed by the CFO or
\n the CAO or the Borrower’s corporate treasurer, stating that the
\n Borrower and its Subsidiaries are in compliance with the covenants
\n contained in Sections 8, 9 and 10 hereof as of the end of the
\n applicable period and setting forth in reasonable detail computations
\n evidencing such compliance with respect to the covenants contained in
\n Sections 9.1(d), 9.3, 9.4, 9.5, and 10 hereof and that no Default or
\n Event of Default exists, provided that if the Borrower shall at the
\n time of issuance of such Compliance Certificate or at any other time
\n obtain knowledge of any Default or Event of Default, the Borrower shall
\n include in such certificate or otherwise deliver forthwith to the Banks
\n a certificate specifying the nature and period of existence thereof and
\n what action the Borrower proposes to take with respect thereto;<\/p>\n
(d) contemporaneously with, or promptly following, the filing
\n or mailing thereof, copies of all material of a financial nature filed
\n with the Securities and Exchange Commission or sent to the Borrower’s
\n and its Subsidiaries’ stockholders generally; and<\/p>\n
(e) from time to time such other financial data and other
\n information as the Banks may reasonably request.<\/p>\n
The Borrower hereby authorizes each Bank to disclose any information
\nobtained pursuant to this Agreement to all appropriate governmental regulatory
\nauthorities where required <\/p>\n
55<\/p>\n
by law; provided, however, this authorization shall not be deemed to be a waiver
\nof any rights to object to the disclosure by the Banks of any such information
\nwhich the Borrower has or may have under the federal Right to Financial Privacy
\nAct of 1978, as in effect from time to time, except as to matters specifically
\npermitted therein.<\/p>\n
SECTION 8.5. EXISTENCE AND CONDUCT OF BUSINESS. The Borrower will, and
\nwill cause each Subsidiary, to do or cause to be done all things necessary to
\npreserve and keep in full force and effect its existence, rights and franchises;
\nand effect and maintain its foreign qualifications (except where the failure of
\nthe Borrower or any Subsidiary to remain so qualified would not materially
\nadversely impair the financial condition, business or assets of the Borrower and
\nits Subsidiaries on a consolidated basis), licensing, domestication or
\nauthorization except as terminated by its Board of Directors in the exercise of
\nits reasonable judgment; provided that such termination would not have a
\nmaterial adverse effect on the financial condition, business or assets of the
\nBorrower and its Subsidiaries on a consolidated basis. The Borrower will not,
\nand will cause its Subsidiaries not to, become obligated under any contract or
\nbinding arrangement which, at the time it was entered into, would materially
\nadversely impair the financial condition, business or assets of the Borrower and
\nits Subsidiaries, on a consolidated basis. The Borrower will, and will cause
\neach Subsidiary to, continue to engage primarily in the businesses now conducted
\nby it and in related businesses.<\/p>\n
SECTION 8.6. MAINTENANCE OF PROPERTIES. The Borrower will, and will
\ncause its Subsidiaries to, cause all material properties used or useful in the
\nconduct of their businesses to be maintained and kept in good condition, repair
\nand working order (ordinary wear and tear excepted) and supplied with all
\nnecessary equipment and cause to be made all necessary repairs, renewals,
\nreplacements, betterments and improvements thereof, all as in the judgment of
\nthe Borrower and its Subsidiaries may be necessary so that the businesses
\ncarried on in connection therewith may be properly and advantageously conducted
\nat all times; provided, however, that nothing in this section shall prevent the
\nBorrower or any of its Subsidiaries from discontinuing the operation and
\nmaintenance of any of its properties if such discontinuance is, in the judgment
\nof the Borrower or such Subsidiary, desirable in the conduct of its or their
\nbusiness and which does not in the aggregate materially adversely affect the
\nfinancial condition, business or assets of the Borrower and its Subsidiaries on
\na consolidated basis.<\/p>\n
SECTION 8.7. INSURANCE. The Borrower will, and will cause its
\nSubsidiaries to, maintain with financially sound and reputable insurance
\ncompanies, funds or underwriters, insurance of the kinds, covering the risks
\n(other than risks arising out of or in any way connected with personal liability
\nof any officers and directors thereof) and in the relative proportionate amounts
\nusually carried by reasonable and prudent companies conducting businesses
\nsimilar to that of the Borrower and its Subsidiaries, in amounts substantially
\nsimilar to the existing coverage policies maintained by the Borrower and its
\nSubsidiaries, copies of which have been provided to the Administrative Agent. In
\naddition, the Borrower will furnish from time to time, upon any Bank’s request,
\na summary of the insurance coverage of the Borrower and its Subsidiaries, which
\nsummary shall be in form and substance satisfactory to the Banks and, if
\nrequested by any of the Banks, will furnish to the Administrative Agent and such
\nBank copies of the applicable policies.<\/p>\n
56<\/p>\n
SECTION 8.8. TAXES. The Borrower will, and will cause its Subsidiaries
\nto, duly pay and discharge, or cause to be paid and discharged, before the same
\nshall become overdue, all taxes, assessments and other governmental charges
\n(other than taxes, assessments and other governmental charges imposed by
\njurisdictions other than the United States, Canada or any political subdivision
\nthereof, which in the aggregate are not material to the business, financial
\nconditions, or assets of the Borrower and its Subsidiaries on a consolidated
\nbasis) imposed upon it and its real properties, sales and activities, or any
\npart thereof, or upon the income or profits therefrom, as well as all claims for
\nlabor, materials, or supplies, which if unpaid might by law become a lien or
\ncharge upon any of its property; provided, however, that any such tax,
\nassessment, charge, levy or claim need not be paid if the validity or amount
\nthereof shall currently be contested in good faith by appropriate proceedings
\nand if the Borrower or such Subsidiary shall have set aside on its books
\nadequate reserves with respect thereto as required by GAAP; and provided,
\nfurther, that the Borrower or such Subsidiary will pay all such taxes,
\nassessments, charges, levies or claims forthwith upon the commencement of
\nproceedings to foreclose any lien which may have attached as security therefor.<\/p>\n
SECTION 8.9. INSPECTION OF PROPERTIES, BOOKS AND CONTRACTS. The
\nBorrower will, and will cause its Subsidiaries to, permit the Administrative
\nAgent or any Bank or any of their designated representatives, upon reasonable
\nnotice, to visit and inspect any of the properties of the Borrower and its
\nSubsidiaries, to examine the books of account of the Borrower and its
\nSubsidiaries, or contracts (and to make copies thereof and extracts therefrom),
\nand to discuss the affairs, finances and accounts of the Borrower and its
\nSubsidiaries with, and to be advised as to the same by, their officers, all at
\nsuch times and intervals as may be reasonably requested.<\/p>\n
SECTION 8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS;
\nMAINTENANCE OF MATERIAL LICENSES AND PERMITS. The Borrower will, and will cause
\neach Subsidiary to, (i) comply with the provisions of its charter documents and
\nby-laws; (ii) comply in all material respects with all agreements and
\ninstruments by which it or any of its properties may be bound; (iii) comply with
\nall applicable laws and regulations (including Environmental Laws), decrees,
\norders, judgments, licenses and permits, including, without limitation, all
\nenvironmental permits (“Applicable Requirements”), except where noncompliance
\nwith such Applicable Requirements would not reasonably be expected to have a
\nmaterial adverse effect in the aggregate on the consolidated financial
\ncondition, properties or businesses of the Borrower and its Subsidiaries; (iv)
\nmaintain all material operating permits for all landfills now owned or hereafter
\nacquired; and (v) dispose of hazardous waste only at licensed disposal
\nfacilities operating, to the best of the Borrower’s or such Subsidiary’s
\nknowledge after reasonable inquiry, in compliance with Environmental Laws. If at
\nany time any authorization, consent, approval, permit or license from any
\nofficer, agency or instrumentality of any government shall become necessary or
\nrequired in order that the Borrower or any Subsidiary may fulfill any of its
\nobligations hereunder or under any other Loan Document, the Borrower will
\nimmediately take or cause to be taken all reasonable steps within the power of
\nthe Borrower or such Subsidiary to obtain such authorization, consent, approval,
\npermit or license and furnish the Banks with evidence thereof.<\/p>\n
SECTION 8.11. ENVIRONMENTAL INDEMNIFICATION. The Borrower covenants and
\nagrees that it will indemnify and hold the Banks, the Issuing Banks and the
\nAdministrative Agent and their respective affiliates, and each of the
\nrepresentatives, agents and officers of each of the foregoing,<\/p>\n
57<\/p>\n
harmless from and against any and all claims, expense, damage, loss or liability
\nincurred by the Banks, the Issuing Banks or the Administrative Agent (including
\nall costs of legal representation incurred by the Banks, the Issuing Banks or
\nthe Administrative Agent) relating to (a) any Release or threatened Release of
\nHazardous Substances on the Real Property; (b) any violation of any
\nEnvironmental Laws or Applicable Requirements with respect to conditions at the
\nReal Property or other assets of the Borrower or its Subsidiaries, or the
\noperations conducted thereon; or (c) the investigation or remediation of offsite
\nlocations at which the Borrower, any of its Subsidiaries, or their predecessors
\nare alleged to have directly or indirectly Disposed of Hazardous Substances. It
\nis expressly acknowledged by the Borrower that this covenant of indemnification
\nshall survive the payment of the Loans and Reimbursement Obligations and
\nsatisfaction of all other Obligations hereunder and shall inure to the benefit
\nof the Banks, the Issuing Banks, the Administrative Agent and their affiliates,
\nsuccessors and assigns.<\/p>\n
SECTION 8.12. FURTHER ASSURANCES. The Borrower and the Guarantor will
\ncooperate with the Administrative Agent and execute such further instruments and
\ndocuments as the Administrative Agent shall reasonably request to carry out to
\nthe Banks’ satisfaction the transactions contemplated by this Agreement.<\/p>\n
SECTION 8.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION. The Borrower
\nshall deliver to the Banks, within 30 days of receipt thereof, written notice of
\nthe initiation of any action, claim, complaint, or any other notice of dispute
\nor potential litigation against the Borrower or any of its Subsidiaries wherein
\nthe potential liability is in excess of $25,000,000 or which questions the
\nvalidity or enforceability of any Loan Document, together with a copy of each
\nsuch complaint or other notice received by the Borrower or any of its
\nSubsidiaries if requested by the Administrative Agent.<\/p>\n
SECTION 8.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND
\nENVIRONMENTAL CLAIMS.<\/p>\n
(a) The Borrower will provide the Banks with written notice as
\n to any material cancellation or material adverse change in any
\n insurance of the Borrower or any of its Subsidiaries within ten (10)
\n Business Days after the Borrower’s or any of its Subsidiary’s receipt
\n of any notice (whether formal or informal) of such material
\n cancellation or material change by any of its insurers.<\/p>\n
(b) The Borrower will promptly, and in any event within ten
\n (10) Business Days of the Borrower’s obtaining knowledge thereof,
\n notify the Banks in writing of any of the following events:<\/p>\n
(i) upon the Borrower’s or any Subsidiary’s obtaining
\n knowledge of any violation of any Environmental Law regarding
\n the Real Property or the Borrower’s or any Subsidiary’s
\n operations which violation could have a material adverse
\n effect on the business, financial condition, or assets of the
\n Borrower and its Subsidiaries on a consolidated basis;<\/p>\n
(ii) upon the Borrower’s or any Subsidiary’s
\n obtaining knowledge of any potential or known Release, or
\n threat of Release, of any Hazardous Substance at, from, or
\n into the Real Property which could materially affect the
\n business, <\/p>\n
58<\/p>\n
financial condition, or assets of the Borrower and its
\n Subsidiaries on a consolidated basis;<\/p>\n
(iii) upon the Borrower’s or any Subsidiary’s receipt
\n of any notice of any material violation of any Environmental
\n Law or of any Release or threatened Release of Hazardous
\n Substances, including a notice or claim of liability or
\n potential responsibility from any third party (including any
\n federal, state, provincial, territorial or local governmental
\n officials) and including notice of any formal inquiry,
\n proceeding, demand, investigation or other action with regard
\n to (A) the Borrower’s, any Subsidiary’s or any Person’s
\n operation of the Real Property, (B) contamination on, from, or
\n into the Real Property, or (C) investigation or remediation of
\n offsite locations at which the Borrower, any Subsidiary, or
\n its predecessors are alleged to have directly or indirectly
\n Disposed of Hazardous Substances, and with respect to which
\n the liability associated therewith could be reasonably
\n expected to exceed $30,000,000; or<\/p>\n
(iv) upon the Borrower’s or any Subsidiary’s
\n obtaining knowledge that any expense or loss which
\n individually or in the aggregate exceeds $30,000,000 has been
\n incurred by such governmental authority in connection with the
\n assessment, containment, removal or remediation of any
\n Hazardous Substances with respect to which the Borrower or any
\n Subsidiary may be liable or for which a lien may be imposed on
\n the Real Property.<\/p>\n
SECTION 8.15. NOTICE OF DEFAULT. The Borrower will promptly notify the
\nBanks in writing of the occurrence of any Default or Event of Default. If any
\nPerson shall give any notice or take any other action in respect of a claimed
\ndefault (whether or not constituting an Event of Default) under this Agreement
\nor any other note, evidence of indebtedness, indenture or other obligation
\nevidencing indebtedness in excess of $25,000,000 as to which the Borrower or any
\nof its Subsidiaries is a party or obligor, whether as principal or surety, the
\nBorrower shall forthwith upon obtaining actual knowledge thereof give written
\nnotice thereof to the Banks, describing the notice of action and the nature of
\nthe claimed default.<\/p>\n
SECTION 8.16. USE OF PROCEEDS.<\/p>\n
(a) GENERALLY: The proceeds of the Loans shall be used for
\n general corporate purposes. No proceeds of the Loans shall be used in
\n any way that will violate Regulations U or X of the Board of Governors
\n of the Federal Reserve System.<\/p>\n
(b) INELIGIBLE SECURITIES: No portion of the proceeds of any
\n Loan is to be used, and no portion of any Letter of Credit is to be
\n obtained, for the purpose of (i) knowingly purchasing, or providing
\n credit support for the purchase of, Ineligible Securities from a
\n Section 20 Subsidiary during any period in which such Section 20
\n Subsidiary makes a market in such Ineligible Securities, (ii) knowingly
\n purchasing, or providing credit support for the purchase of, during the
\n underwriting or placement period, any Ineligible Securities being
\n underwritten or privately placed by a Section 20 Subsidiary, or (iii)
\n making, or providing credit support for the making of, payments of
\n principal or interest on Ineligible Securities underwritten or
\n privately placed by a Section <\/p>\n
59<\/p>\n
20 Subsidiary and issued by or for the benefit of the Borrower or any
\n Subsidiary or other affiliate of the Borrower.<\/p>\n
SECTION 8.17. CERTAIN TRANSACTIONS. Except as disclosed in the
\nDisclosure Documents prior to the Effective Date, and except for arm’s length
\ntransactions pursuant to which the Borrower or any Subsidiary makes payments in
\nthe ordinary course of business upon terms no less favorable than the Borrower
\nor such Subsidiary could obtain from third parties, none of the officers,
\ndirectors, or employees or any other affiliate of the Borrower or any Subsidiary
\nare presently or shall be a party to any transaction with the Borrower or any
\nSubsidiary (other than for services as employees, officers and directors),
\nincluding any contract, agreement or other arrangement providing for the
\nfurnishing of services to or by, providing for rental of real or personal
\nproperty to or from, or otherwise requiring payments to or from any officer,
\ndirector or such employee or, to the knowledge of the Borrower or any
\nSubsidiary, any corporation, partnership, trust or other entity in which any
\nofficer, director, or any such employee has a substantial interest or is an
\nofficer, director, trustee or partner.<\/p>\n
SECTION 9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
\nagrees that, so long as any Obligation or Letter of Credit is outstanding or the
\nBanks have any obligation to make Loans or any Issuing Bank has any obligation
\nto issue, extend or renew any Letters of Credit hereunder, or the Banks have any
\nobligation to reimburse any Issuing Bank for drawings honored under any Letter
\nof Credit, it shall, and shall cause its Subsidiaries to, comply with the
\nfollowing covenants:<\/p>\n
SECTION 9.1. RESTRICTIONS ON INDEBTEDNESS. Neither the Borrower nor any
\nof its Subsidiaries shall become or be a guarantor or surety of, or otherwise
\ncreate, incur, assume, or be or remain liable, contingently or otherwise, with
\nrespect to any Indebtedness, or become or be responsible in any manner (whether
\nby agreement to purchase any obligations, stock, assets, goods or services, or
\nto supply or advance any funds, assets, goods or services or otherwise) with
\nrespect to any Indebtedness of any other Person, or incur any Indebtedness other
\nthan:<\/p>\n
(a) Indebtedness arising under this Agreement or the other
\n Loan Documents;<\/p>\n
(b) (i) Indebtedness incurred by the Borrower or any
\n Subsidiary with respect to any suretyship or performance bond incurred
\n in the ordinary course of its business, and undrawn landfill closure
\n bonds; and<\/p>\n
(ii) Guarantees of the Subsidiaries’ obligations to
\n governmental authorities in lieu of the posting of any landfill closure
\n bonds;<\/p>\n
(c) Unsecured Indebtedness of the Borrower (and any guarantee
\n thereof by Guarantor), including commercial paper, which is pari passu
\n or subordinated to the Obligations; provided that there does not exist
\n a Default or Event of Default at the time of the incurrence of such
\n Indebtedness and no Default or Event of Default would be created by the
\n incurrence of such Indebtedness;<\/p>\n
(d) (i) Indebtedness of the Borrower’s Subsidiaries (other
\n than of the Guarantor incurred prior to July 16, 1998), (ii) secured
\n Indebtedness of the Borrower, <\/p>\n
60<\/p>\n
(iii) Indebtedness with respect to drawn landfill closure bonds of the
\n Borrower’s Subsidiaries (other than of the Guarantor), and (iv)
\n Indebtedness with respect to Permitted Receivables Transactions (other
\n than of the Guarantor); provided that the aggregate amount of all such
\n Indebtedness in this Section 9.1(d) shall not exceed 15% of
\n Consolidated Tangible Assets at any time;<\/p>\n
(e) Indebtedness of the Guarantor listed in Schedule 9.1(e) on
\n the terms and conditions existing on July 16, 1998, provided that any
\n extension, renewal or refinancing by the Guarantor of such Indebtedness
\n is prohibited unless the amount of such extended, renewed or refinanced
\n Indebtedness by the Guarantor is deducted from Indebtedness allowed
\n under Section 9.1(d) above; and<\/p>\n
(f) Indebtedness of the Borrower and certain of its
\n Subsidiaries under the Revolving Credit Facility and the European
\n Credit Facilities.<\/p>\n
SECTION 9.2. RESTRICTIONS ON LIENS. The Borrower will not, and will
\ncause its Subsidiaries not to, create or incur or suffer to be created or
\nincurred or to exist any lien, encumbrance, mortgage, pledge, charge,
\nrestriction or other security interest of any kind upon any property or assets
\nof any character, whether now owned or hereafter acquired, or upon the income or
\nprofits therefrom; or transfer any of such property or assets or the income or
\nprofits therefrom for the purpose of subjecting the same to the payment of
\nIndebtedness or performance of any other obligation in priority to payment of
\nits general creditors; or acquire, or agree or have an option to acquire, any
\nproperty or assets upon conditional sale or other title retention or purchase
\nmoney security agreement, device or arrangement; or suffer to exist for a period
\nof more than 30 days after the same shall have been incurred any Indebtedness or
\nclaim or demand against it which if unpaid might by law or upon bankruptcy or
\ninsolvency, or otherwise, be given any priority whatsoever over its general
\ncreditors; or sell, assign, pledge or otherwise transfer any accounts, contract
\nrights, general intangibles or chattel paper, with or without recourse, except
\nas follows (the “Permitted Liens”):<\/p>\n
(a) Liens existing on the Effective Date and listed on
\n Schedule 9.2(a) hereto;<\/p>\n
(b) Liens securing Indebtedness permitted by Section 9.1(b)(i)
\n hereof; provided that the assets subject to such liens and security
\n interests shall be limited to those contracts to which such guaranty,
\n suretyship or indemnification obligations relate and the rights to
\n payment thereunder;<\/p>\n
(c) Liens securing Indebtedness permitted under Sections
\n 9.1(d) and (e) (provided that Liens created pursuant to a Permitted
\n Receivables Transaction are only on the receivables (and related
\n contract rights, general intangibles, and chattel paper) so transferred
\n and securing only the obligations with respect thereto);<\/p>\n
(d) Liens to secure taxes, assessments and other government
\n charges in respect of obligations not overdue;<\/p>\n
61<\/p>\n
(e) Deposits or pledges made in connection with, or to secure
\n payment of, workmen’s compensation, unemployment insurance, old age
\n pensions or other social security obligations;<\/p>\n
(f) Liens in respect of judgments or awards which have been in
\n force for less than the applicable period for taking an appeal so long
\n as execution is not levied thereunder or in respect of which the
\n Borrower (or any Subsidiary) shall at the time in good faith be
\n prosecuting an appeal or proceedings for review and in respect of which
\n a stay of execution shall have been obtained pending such appeal or
\n review and in respect of which the Borrower maintains adequate
\n reserves;<\/p>\n
(g) Liens of carriers, warehousemen, mechanics and
\n materialmen, and other like liens, in existence less than 120 days from
\n the date of creation thereof in respect of obligations not overdue,
\n provided that such liens may continue to exist for a period of more
\n than 120 days if the validity or amount thereof shall currently be
\n contested by the Borrower (or any Subsidiary) in good faith by
\n appropriate proceedings and if the Borrower shall have set aside on its
\n books adequate reserves with respect thereto as required by GAAP and
\n provided further that the Borrower (or any Subsidiary) will pay any
\n such claim forthwith upon commencement of proceedings to foreclose any
\n such lien; and<\/p>\n
(h) Encumbrances consisting of easements, rights of way,
\n zoning restrictions, restrictions on the use of real property and
\n defects and irregularities in the title thereto, landlord’s or lessor’s
\n liens under leases to which the Borrower or any Subsidiary is a party,
\n and other minor liens or encumbrances none of which in the opinion of
\n the Borrower interferes materially with the use of the property
\n affected in the ordinary conduct of the business of the Borrower or any
\n of its Subsidiaries, which defects do not individually or in the
\n aggregate have a material adverse effect on the business of the
\n Borrower or any Subsidiary individually or of the Borrower and its
\n Subsidiaries on a consolidated basis.<\/p>\n
The Borrower and the Guarantor covenant and agree that if
\n either of them or any of their Subsidiaries shall create or assume any
\n lien upon any of their respective properties or assets, whether now
\n owned or hereafter acquired, other than Permitted Liens (unless prior
\n written consent shall have been obtained from the Banks), the Borrower
\n and the Guarantor will make or cause to be made effective provision
\n whereby the Obligations and the Guaranteed Obligations will be secured
\n by such lien equally and ratably with any and all other Indebtedness
\n thereby secured so long as such other Indebtedness shall be so secured;
\n provided, that the covenants of the Borrower and the Guarantor
\n contained in this sentence shall only be in effect for so long as the
\n Borrower or the Guarantor shall be similarly obligated under any other
\n Indebtedness; provided, further, that an Event of Default shall occur
\n for so long as such other Indebtedness becomes secured notwithstanding
\n any actions taken by the Borrower or the Guarantor to ratably secure
\n the Obligations and the Guaranteed Obligations hereunder.<\/p>\n
SECTION 9.3. RESTRICTIONS ON INVESTMENTS. Except to the extent provided
\nin Section 9.4, neither the Borrower nor any Subsidiary may make or permit to
\nexist or to remain outstanding any <\/p>\n
62<\/p>\n
Investment, unless both before and after giving effect thereto (i) the Borrower
\nand its Subsidiaries are in compliance with the covenants set forth in Sections
\n8, 9 and 10 hereof; (ii) there does not exist a Default or Event of Default and
\nno Default or Event of Default would be created by the making of such
\nInvestment; and (iii) the aggregate amount of all Investments (excluding
\nInvestments in (A) direct obligations of the United States of America or any
\nagency thereof having maturities of less than one (1) year, (B) certificates of
\ndeposit having maturities of less than one (1) year, issued by commercial banks
\nin the United States or Canada having capital and surplus of not less than
\n$100,000,000, and (C) wholly owned Subsidiaries) does not exceed 10% of
\nConsolidated Tangible Assets; provided, that the ability of the Borrower and its
\nSubsidiaries to incur any Indebtedness in connection with any Investment
\npermitted by this Section 9.3 shall be governed by Section 9.1.<\/p>\n
SECTION 9.4. MERGERS, CONSOLIDATIONS, SALES. <\/p>\n
(a) Neither the Borrower nor any Subsidiary shall be a party
\n to any merger, consolidation or exchange of stock unless the Borrower
\n shall be the surviving entity with respect to any such transaction to
\n which the Borrower is a party and the Guarantor shall be the survivor
\n of any merger with any other Subsidiary or a Subsidiary shall be the
\n surviving entity (and continue to be a Subsidiary) with respect to any
\n such transactions to which one or more Subsidiaries is a party (and the
\n conditions set forth below are satisfied), or purchase or otherwise
\n acquire all or substantially all of the assets or stock of any class
\n of, or any partnership, membership or joint venture or other interest
\n in, any other Person except as otherwise provided in Section 9.3 or
\n this Section 9.4. Notwithstanding the foregoing, the Borrower and its
\n Subsidiaries may purchase or otherwise acquire all or substantially all
\n of the assets or stock of any class of, or joint venture or other
\n interest in, any Person if the following conditions have been met: (i)
\n the proposed transaction will not otherwise create a Default or an
\n Event of Default hereunder; (ii) the business to be acquired
\n predominantly involves (A) the collection, transfer, hauling, disposal
\n or recycling of solid waste (excluding hazardous waste as that term is
\n defined in RCRA) or thermal soil remediation, or (B) other lines of
\n businesses currently engaged in, including (1) on-site portable
\n sanitation services, (2) industrial cleaning services, (3) chemical
\n waste treatment, storage, disposal and related services, (4) on-site
\n integrated hazardous waste management services, including hazardous
\n waste identification, packaging, removal, and recycling services, (5)
\n radioactive waste management services, (6) development and operation of
\n waste-to-energy facilities and related services, (7) the treatment and
\n management of biosolids, (8) design and installation of air pollution
\n control systems and equipment, or (9) environmental and infrastructure
\n consulting and related services, provided that revenues from operations
\n with respect to items (3), (4) and (5) shall not exceed ten percent
\n (10%) of consolidated revenues without the consent of the Majority
\n Banks; (iii) the business to be acquired operates predominantly (A) in
\n North America or (B) outside North America, provided, that the
\n aggregate amount of such acquisitions under this clause (B) does not
\n exceed fifteen percent (15%) of Consolidated Tangible Assets; and (iv)
\n the board of directors and (if required by applicable law) the
\n shareholders, or the equivalent thereof, of the business to be acquired
\n has approved such acquisition. Notwithstanding anything herein to the
\n contrary, the ability of the Borrower <\/p>\n
63<\/p>\n
and its Subsidiaries to incur any Indebtedness in connection with any
\n transaction permitted pursuant to this Section 9.4 shall be governed by
\n Section 9.1.<\/p>\n
(b) Neither the Borrower nor any Subsidiary shall sell,
\n transfer, convey or lease any assets or group of assets including the
\n sale or transfer of any property owned by the Borrower or any
\n Subsidiary in order then or thereafter to lease such property or lease
\n other property which the Borrower or such Subsidiary intends to use for
\n substantially the same purpose as the property being sold or
\n transferred (except (1) transfers of real or personal property among
\n Subsidiaries of the Borrower which are wholly owned by the Borrower,
\n (2) Regulatory Dispositions, (3) Strategic Dispositions, (4) Allied
\n Waste Transactions, and (5) so long as no Default or Event of Default
\n has occurred and is continuing, or would result therefrom, sales of
\n assets in the ordinary course of business in any calendar year with an
\n aggregate value not greater than $50,000,000), or sell or assign, with
\n or without recourse, any receivables (except accounts receivable (and
\n contract rights, general intangibles or chattel paper related thereto)
\n more than sixty (60) days past due sold or assigned in the ordinary
\n course of collecting past due accounts, or pursuant to a Permitted
\n Receivables Transaction).<\/p>\n
(c) Commencing with the Effective Date, at any time when the
\n aggregate Net Cash Proceeds from all Domestic Strategic Dispositions
\n not previously applied or set aside for application under this Section
\n 9.4(c) exceeds $25,000,000 in the aggregate, then all such Net Cash
\n Proceeds (including the first $25,000,000) received by the Borrower or
\n any Subsidiary from Domestic Strategic Dispositions shall be applied
\n within five (5) Business Days to pay down the Existing Domestic Bank
\n Debt on a pro rata basis as set forth in the following table (with
\n concurrent permanent reduction in the lenders commitments to advance
\n funds or provide credit hereunder and thereunder of not less than
\n eighty percent (80%) of the amount of such pay down), with the
\n remainder of such Net Cash Proceeds to be available for share
\n repurchases (subject to Section 9.5 below), and for other general
\n corporate purposes (including acquisitions):<\/p>\n
\n\n————————————————————————————————————————–
\n Cumulative Net Cash Proceeds % Required to Repay % Available for Share
\n Existing Domestic Bank Repurchase
\n Debt
\n————————————————————————————————————————–
\n
\n Tier I Greater than or equal to $0 and less than or 100% 0%
\n equal to $1,500,000,000
\n————————————————————————————————————————–
\n Tier II Greater than $1,500,000,000 and less than or 50% 50%
\n equal to $2,500,000,000
\n————————————————————————————————————————–
\n Tier III Greater than $2,500,000,000 and less than or 0% 100%
\n equal to $5,000,000,000
\n————————————————————————————————————————–
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n 64<\/p>\n
provided that in the event that the Senior Public Debt Rating is rated
\n less than BBB- by Standard & Poor’s AND less than Baa3 by Moody’s, Tier
\n III shall be adjusted such that 20% of Net Cash Proceeds are required
\n to repay Existing Domestic Bank Debt and 80% of Net Cash Proceeds will
\n be available for share repurchases. The Borrower shall promptly provide
\n a monthly report to the Administrative Agent in the form of Exhibit M
\n hereto (the “Form of Net Cash Proceeds Certificate”) of Net Cash
\n Proceeds from all Domestic Strategic Dispositions for the month, and
\n demonstrating compliance with the conditions set forth above.<\/p>\n
(d) Net Cash Proceeds from any European Strategic Dispositions
\n shall be used first to permanently pay down the European Credit
\n Facilities (and concurrent permanent reduction of the commitments of
\n the lenders to advance funds or provide credit thereunder by the amount
\n of such pay down), with any surplus to be treated as if such surplus
\n were Net Cash Proceeds from a Domestic Strategic Disposition in
\n accordance with subsection (c) above. The Borrower shall promptly
\n provide a monthly report to the Administrative Agent in the form of
\n Exhibit M hereto of Net Cash Proceeds from all European Strategic
\n Dispositions for the month, and demonstrating compliance with the
\n conditions set forth above.<\/p>\n
SECTION 9.5. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. Neither the
\nBorrower nor any of its Subsidiaries will (a) declare or pay any Distributions,
\nor (b) redeem, convert, retire or otherwise acquire shares of any class of its
\ncapital stock (other than in connection with a merger permitted by Section 9.4
\nhereof or conversion into another form of equity of any preferred shares of the
\nBorrower existing as of the Effective Date pursuant to the terms thereof);
\nprovided that, so long as no Default or Event of Default exists or would be
\ncreated hereunder, the Borrower and its Subsidiaries may (i) pay cash dividends
\nand redeem stock in an aggregate amount not to exceed Net Cash Proceeds from
\nStrategic Dispositions available for share repurchase in accordance with the
\ntable set forth above in Section 9.4(c), provided further that, giving effect to
\nthe proposed share repurchase on a proforma basis as if the transaction occurred
\nas of the last day of the prior fiscal quarter, the Borrower (x) shall have cash
\nequivalents plus Existing Domestic Bank Debt Availability of at least
\n$1,000,000,000, (y) the ratio of Total Debt to EBITDA for the most recently
\nended period of four fiscal quarters shall not exceed 2.75:1 and (z) the
\nEuropean Credit Facilities shall have been paid in full; and (ii) pay common
\ndividends in an amount not to exceed $25,000,000 per year. Notwithstanding the
\nabove, any Subsidiary may make Distributions to the Borrower and the Borrower
\nagrees that neither the Borrower nor any Material Subsidiary will enter into any
\nagreement restricting Distributions from such Material Subsidiary to the
\nBorrower.<\/p>\n
SECTION 9.6. EMPLOYEE BENEFIT PLANS. None of the Borrower, any of its
\nSubsidiaries, or any ERISA Affiliate will:<\/p>\n
(a) engage in any “prohibited transaction” within the meaning
\n of Section 406 of ERISA or Section 4975 of the Code which could result
\n in a material liability for the Borrower on a consolidated basis; or<\/p>\n
65<\/p>\n
(b) permit any Guaranteed Pension Plan to incur an
\n “accumulated funding deficiency”, as such term is defined in Section
\n 302 of ERISA, whether or not such deficiency is or may be waived; or<\/p>\n
(c) fail to contribute to any Guaranteed Pension Plan to an
\n extent which, or terminate any Guaranteed Pension Plan in a manner
\n which, could result in the imposition of a lien or encumbrance on the
\n assets of the Borrower or the Guarantor pursuant to Section 302(f) or
\n Section 4068 of ERISA; or<\/p>\n
(d) permit or take any action which would result in the
\n aggregate benefit liabilities (within the meaning of Section 4001 of
\n ERISA), other than with respect to the Terminated Plans, of all
\n Guaranteed Pension Plans exceeding the value of the aggregate assets of
\n such Plans, disregarding for this purpose the benefit liabilities and
\n assets of any such Plan with assets in excess of benefit liabilities;
\n or<\/p>\n
(e) take any action referred to in paragraph (a), (b), (c) or
\n (d) above that would violate any provisions of Applicable Canadian
\n Pension Legislation.<\/p>\n
The Borrower and its Subsidiaries will (i) promptly upon the request of
\nany Bank or the Administrative Agent, furnish to the Banks a copy of the most
\nrecent actuarial statement required to be submitted under Section 103(d) of
\nERISA and Annual Report, Form 5500, with all required attachments, in respect of
\neach Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch, furnish
\nto the Banks any notice, report or demand sent or received in respect of a
\nGuaranteed Pension Plan under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066
\nand 4068 of ERISA, or in respect of a Multiemployer Plan, under Sections 4041A,
\n4202, 4219, 4242 or 4245 of ERISA.<\/p>\n
SECTION 10. FINANCIAL COVENANTS OF THE BORROWER. The Borrower agrees
\nthat, so long as any Obligation or Letter of Credit is outstanding or the Banks
\nhave any obligation to make Loans, or any Issuing Bank has any obligation to
\nissue, extend or renew any Letter of Credit hereunder, or the Banks have any
\nobligation to reimburse any Issuing Bank for drawings honored under any Letter
\nof Credit, it shall, and shall cause its Subsidiaries to, comply with the
\nfollowing covenants:<\/p>\n
SECTION 10.1. INTEREST COVERAGE RATIO. As of the end of any fiscal
\nquarter of the Borrower, the Borrower will not permit the ratio of (a) EBIT for
\nthe four fiscal quarters then ending to (b) Consolidated Total Interest Expense
\nfor such period to be less than the applicable ratio set forth in the table
\nbelow:<\/p>\n
\n\n ———————————————————————————
\n FISCAL QUARTERS ENDING: RATIO:
\n ———————————————————————————
\n
\n December 31, 1999 – September 30, 2000 2.75:1.00
\n ———————————————————————————
\n December 31, 2000 and thereafter 3.00:1.00
\n ———————————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n 66<\/p>\n
SECTION 10.2. TOTAL DEBT TO EBITDA. As of the end of any fiscal quarter
\nof the Borrower, the Borrower will not permit the ratio of (a) Total Debt to (b)
\nEBITDA for the four fiscal quarters then ending to exceed the applicable ratio
\nset forth in the table below:<\/p>\n
\n\n ———————————————————————————
\n FISCAL QUARTERS ENDING: RATIO:
\n ———————————————————————————
\n
\n December 31, 1999 – June 30, 2000 3.25:1.00
\n ———————————————————————————
\n September 30, 2000 and thereafter 3.00:1.00
\n ———————————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n SECTION 10.3. MINIMUM NET WORTH. The Borrower will not permit
\nConsolidated Net Worth at any time to be less than $3,500,000,000, plus 75% of
\ncumulative positive Consolidated Net Income for each fiscal quarter, beginning
\nwith the fourth fiscal quarter of 1999, minus any share repurchases permitted
\npursuant to Section 9.5 hereof.<\/p>\n
SECTION 11. CONDITIONS PRECEDENT.<\/p>\n
SECTION 11.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
\nAgreement and the obligations of the Banks to make any Loans and of any Issuing
\nBank to issue Letters of Credit and of the Banks to participate in Letters of
\nCredit and otherwise be bound by the terms of this Agreement shall be subject to
\nthe satisfaction of each of the following conditions precedent:<\/p>\n
SECTION 11.1.1. CORPORATE ACTION. All corporate action
\n necessary for the valid execution, delivery and performance by the
\n Borrower and the Guarantor of the Loan Documents shall have been duly
\n and effectively taken, and evidence thereof certified by authorized
\n officers of the Borrower and the Guarantor and satisfactory to the
\n Banks shall have been provided to the Banks.<\/p>\n
SECTION 11.1.2. LOAN DOCUMENTS, ETC. Each of the Loan
\n Documents and other documents listed on the closing agenda shall have
\n been duly and properly authorized, executed and delivered by the
\n respective parties thereto and shall be in full force and effect in a
\n form satisfactory to the Majority Banks.<\/p>\n
SECTION 11.1.3. CERTIFIED COPIES OF CHARTER DOCUMENTS. The
\n Banks shall have received from each of the Borrower and the Guarantor a
\n certificate, certified by a duly authorized officer of such Person to
\n be true and complete on the Effective Date, of (a) no changes (other
\n than those attached thereto) to its charter or other incorporation
\n documents since last delivered to the Administrative Agent, and (b) no
\n changes to its by-laws (other than those attached thereto) since last
\n delivered to the Administrative Agent.<\/p>\n
SECTION 11.1.4. INCUMBENCY CERTIFICATE. The Banks shall have
\n received an incumbency certificate, dated as of the Effective Date,
\n signed by duly authorized officers of the Borrower and the Guarantor
\n giving the name and bearing a specimen signature of each individual who
\n shall be authorized: (a) to sign the Loan Documents on behalf of the
\n Borrower and the Guarantor; (b) to make Syndicated Loan Requests and
\n Letter of Credit <\/p>\n
67<\/p>\n
Requests; (c) to make Competitive Bid Quote Requests; and (d) to give
\n notices and to take other action on the Borrower’s or the Guarantor’s
\n behalf under the Loan Documents.<\/p>\n
SECTION 11.1.5. CERTIFICATES OF INSURANCE. The Banks shall
\n have received (i) a certificate of insurance from an independent
\n insurance broker dated as of the Effective Date, or within 15 days
\n prior thereto, identifying insurers, types of insurance, insurance
\n limits, and policy terms, and otherwise describing the insurance
\n obtained in accordance with the provisions of the Loan Documents and
\n (ii) copies of all policies evidencing such insurance (or certificates
\n therefor signed by the insurer or an agent authorized to bind the
\n insurer).<\/p>\n
SECTION 11.1.6. OPINION OF COUNSEL. The Banks shall have
\n received a favorable legal opinion from outside counsel to the Borrower
\n and the Guarantor addressed to the Banks, dated the Effective Date, in
\n form and substance satisfactory to the Administrative Agent.<\/p>\n
SECTION 11.1.7. SATISFACTORY FINANCIAL CONDITION. Other than
\n as disclosed in the Disclosure Documents, no material adverse change,
\n in the judgment of the Majority Banks, shall have occurred in the
\n financial condition, results of operations, business, properties or
\n prospects of the Borrower and its Subsidiaries, taken as a whole, since
\n the Interim Balance Sheet Date.<\/p>\n
SECTION 11.1.8. PAYMENT OF AMENDMENT FEES. For each Bank which
\n executed and delivered its facsimile signature pages by 5:00 p.m. on
\n December 15, 1999, the Borrower shall have paid the agreed upon
\n amendment fee of 0.125% on each such Bank’s Commitment to the
\n Administrative Agent for the account of such Banks.<\/p>\n
SECTION 11.1.9. AMENDMENTS TO EXISTING DEBT. The
\n Administrative Agent shall have received evidence, in form and
\n substance satisfactory to the Administrative Agent, that the Revolving
\n Credit Facility is concurrently becoming effective in a form and
\n substance satisfactory to the Administrative Agent, MGT and the Joint
\n Lead Arrangers and Joint Book Managers, and no “Event of Default”,
\n “Default” (each as defined in such agreement) or prepayment event shall
\n exist under such agreement and no liens shall be created under such
\n agreement as a result of the transactions contemplated hereby.<\/p>\n
SECTION 12. CONDITIONS TO ALL LOANS. The obligations of the Banks to
\nmake any Loan and the obligation of any Issuing Bank to issue, extend, or renew
\nany Letter of Credit at the time of and subsequent to the Effective Date is
\nsubject to the following conditions precedent:<\/p>\n
SECTION 12.1. REPRESENTATIONS TRUE. Each of the representations and
\nwarranties of the Borrower and the Guarantor (as applicable) contained in this
\nAgreement or in any document or instrument delivered pursuant to or in
\nconnection with this Agreement shall be true as of the date as of which they
\nwere made and shall also be true at and as of the time of the making of such
\nLoan or the issuance, extension, or renewal of any Letter of Credit, as
\napplicable, with the same effect as if made at and as of that time (except to
\nthe extent of changes resulting from transactions contemplated or permitted by
\nthis Agreement and changes occurring in the ordinary course of business which
\nsingly or in the aggregate are not materially adverse to the business, <\/p>\n
68<\/p>\n
assets or financial condition of the Borrower and its Subsidiaries as a whole,
\nand to the extent that such representations and warranties relate expressly and
\nsolely to an earlier date).<\/p>\n
SECTION 12.2. PERFORMANCE; NO EVENT OF DEFAULT. The Borrower shall have
\nperformed and complied with all terms and conditions herein required to be
\nperformed or complied with by it prior to or at the time of the making of any
\nLoan the issuance, extension or renewal of any Letter of Credit, and at the time
\nof the making of any Loan or the issuance, renewal or extension of any Letter of
\nCredit, there shall exist no Default or Event of Default or condition which
\nwould result in a Default or an Event of Default upon consummation of such Loan
\nor issuance, extension, or renewal of any Letter of Credit, as applicable. Each
\nrequest for a Loan, or for issuance, extension or renewal of a Letter of Credit
\nshall constitute certification by the Borrower that the conditions specified in
\nSections 12.1 and 12.2 will be duly satisfied on the date of such Loan or Letter
\nof Credit issuance, extension or renewal.<\/p>\n
SECTION 12.3. NO LEGAL IMPEDIMENT. No change shall have occurred in any
\nlaw or regulations thereunder or interpretations thereof which in the reasonable
\nopinion of the Banks would make it illegal for the Banks to make Loans, for any
\nIssuing Bank to issue, extend or renew, or the Banks to participate in, Letters
\nof Credit hereunder.<\/p>\n
SECTION 12.4. GOVERNMENTAL REGULATION. The Banks shall have received
\nfrom the Borrower and its Subsidiaries such statements in substance and form
\nreasonably satisfactory to the Banks as they shall require for the purpose of
\ncompliance with any applicable regulations of the Comptroller of the Currency or
\nthe Board of Governors of the Federal Reserve System or the Office of the
\nSuperintendent of Financial Institutions.<\/p>\n
SECTION 12.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
\nwith the transactions contemplated by this Agreement and all documents incident
\nthereto shall have been delivered to the Banks as of the date of the making of
\nany extension of credit in substance and in form satisfactory to the Banks,
\nincluding without limitation a Syndicated Loan Request in the form attached
\nhereto as Exhibit D or a Letter of Credit Request in the form of Exhibit E and
\nthe Banks shall have received all information and such counterpart originals or
\ncertified or other copies of such documents as the Banks may reasonably request.<\/p>\n
SECTION 13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.<\/p>\n
SECTION 13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the
\nfollowing events (“Events of Default” or, if the giving of notice or the lapse
\nof time or both is required, then, prior to such notice and\/or lapse of time,
\n“Defaults”) shall occur:<\/p>\n
(a) if the Borrower shall fail to pay any principal of the
\n Loans when the same shall become due and payable, whether at the stated
\n date of maturity or any accelerated date of maturity or at any other
\n date fixed for payment;<\/p>\n
(b) if the Borrower shall fail to pay any interest or fees or
\n other amounts owing hereunder (other than those specified in subsection
\n (a) above) within five (5) Business Days after the same shall become
\n due and payable whether at the Revolving <\/p>\n
69<\/p>\n
Credit Maturity Date, Term Loan Maturity Date or any accelerated date
\n of maturity or at any other date fixed for payment;<\/p>\n
(c) if the Borrower shall fail to comply with any of the
\n covenants contained in Sections 8, 9 and 10 hereof;<\/p>\n
(d) if the Borrower shall fail to perform any term, covenant
\n or agreement contained herein or in any of the other Loan Documents
\n (other than those specified in subsections (a), (b), and (c) above) and
\n such failure shall not be remedied within 30 days after written notice
\n of such failure shall have been given to the Borrower by the
\n Administrative Agent or any of the Banks;<\/p>\n
(e) if any representation or warranty contained in this
\n Agreement or in any document or instrument delivered pursuant to or in
\n connection with this Agreement shall prove to have been false in any
\n material respect upon the date when made or repeated;<\/p>\n
(f) if the Borrower or any of its Subsidiaries shall fail to
\n pay when due, or within any applicable period of grace, any
\n Indebtedness in an aggregate amount greater than $50,000,000, or fail
\n to observe or perform any material term, covenant or agreement
\n contained in any one or more agreements by which it is bound,
\n evidencing or securing any Indebtedness in an aggregate amount greater
\n than $50,000,000 for such period of time as would permit, or would have
\n permitted (assuming the giving of appropriate notice if required), the
\n holder or holders thereof or of any obligations issued thereunder to
\n accelerate the maturity thereof or terminate its commitment with
\n respect thereto;<\/p>\n
(g) if the Borrower, the Guarantor or any Material Subsidiary
\n makes an assignment for the benefit of creditors, or admits in writing
\n its inability to pay or generally fails to pay its debts as they mature
\n or become due, or petitions or applies for the appointment of a trustee
\n or other custodian, liquidator or receiver of the Borrower, the
\n Guarantor or any Material Subsidiary, or of any substantial part of the
\n assets of the Borrower, the Guarantor or any Material Subsidiary or
\n commences any case or other proceeding relating to the Borrower, the
\n Guarantor or any Material Subsidiary under any bankruptcy,
\n reorganization, arrangement, insolvency, readjustment of debt,
\n dissolution or liquidation or similar law of any jurisdiction, now or
\n hereafter in effect, or takes any action to authorize or in furtherance
\n of any of the foregoing, or if any such petition or application is
\n filed or any such case or other proceeding is commenced against the
\n Borrower, the Guarantor or any Material Subsidiary or the Borrower, the
\n Guarantor or any Material Subsidiary indicates its approval thereof,
\n consent thereto or acquiescence therein;<\/p>\n
(h) if a decree or order is entered appointing any such
\n trustee, custodian, liquidator or receiver or adjudicating the Borrower
\n or the Guarantor or any Material Subsidiary bankrupt or insolvent, or
\n approving a petition in any such case or other proceeding, or a decree
\n or order for relief is entered in respect of the Borrower or the
\n Guarantor or any Material Subsidiary in an involuntary case under
\n federal bankruptcy laws of any jurisdiction as now or hereafter
\n constituted, and such decree or order remains in effect for more than
\n 30 days, whether or not consecutive;<\/p>\n
70<\/p>\n
(i) if there shall remain in force, undischarged, unsatisfied
\n and unstayed, for more than thirty days, whether or not consecutive,
\n any final judgment against the Borrower or any Subsidiary which, with
\n other outstanding final judgments against the Borrower and its
\n Subsidiaries exceeds in the aggregate $25,000,000 after taking into
\n account any undisputed insurance coverage;<\/p>\n
(j) if, with respect to any Guaranteed Pension Plan (or any
\n corresponding plan described in any Applicable Canadian Pension
\n Legislation), an ERISA Reportable Event or similar event under
\n Applicable Canadian Pension Legislation shall have occurred and the
\n Banks shall have determined in their reasonable discretion that such
\n event reasonably could be expected to result in liability of the
\n Borrower or any Subsidiary to the PBGC or similar Canadian authorities
\n or the Plan in an aggregate amount exceeding $25,000,000 and such event
\n in the circumstances occurring reasonably could constitute grounds for
\n the partial or complete termination of such Plan by the PBGC or similar
\n Canadian authorities or for the appointment by the appropriate United
\n States District Court or Canadian Court of a trustee to administer such
\n Plan; or a trustee shall have been appointed by the appropriate United
\n States District Court or Canadian Court to administer such Plan; or the
\n PBGC or similar Canadian authorities shall have instituted proceedings
\n to terminate such Plan;<\/p>\n
(k) if any of the Loan Documents shall be cancelled,
\n terminated, revoked or rescinded otherwise than in accordance with the
\n terms thereof or with the express prior written agreement, consent or
\n approval of the Banks, or any action at law, suit or in equity or other
\n legal proceeding to cancel, revoke or rescind any of the Loan Documents
\n shall be commenced by or on behalf of the Borrower, the Guarantor, or
\n any of their respective stockholders, or any court or any other
\n governmental or regulatory authority or agency of competent
\n jurisdiction shall make a determination that, or issue a judgment,
\n order, decree or ruling to the effect that, any one or more of the Loan
\n Documents is illegal, invalid or unenforceable in accordance with the
\n terms thereof; or<\/p>\n
(l) if any person or group of persons (within the meaning of
\n Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
\n shall have acquired beneficial ownership (within the meaning of Rule
\n 13d-3 promulgated by the Securities and Exchange Commission under said
\n Act) of 25% or more of the outstanding shares of common voting stock of
\n the Borrower; or during any period of twelve consecutive calendar
\n months, individuals who were directors of the Borrower on the first day
\n of such period shall cease to constitute a majority of the board of
\n directors of the Borrower;<\/p>\n
then, and in any such event, so long as the same may be continuing, the
\nAdministrative Agent may, and upon the request of the Majority Banks shall, by
\nnotice in writing to the Borrower, declare all amounts owing with respect to
\nthis Agreement, the Notes and the other Loan Documents and all Reimbursement
\nObligations to be, and they shall thereupon forthwith become, immediately due
\nand payable without presentment, demand, protest, notice of intent to
\naccelerate, notice of acceleration to the extent permitted by law or other
\nnotice of any kind, all of which are hereby expressly waived by the Borrower;
\nprovided that in the event of any Event of Default specified in Section 13.1(g)
\nor 13.1(h), all such amounts shall become immediately due and<\/p>\n
71<\/p>\n
payable automatically and without any requirement of notice from the
\nAdministrative Agent or any Bank. Upon demand by the Majority Banks after the
\noccurrence of any Event of Default, the Borrower shall immediately provide to
\nthe Administrative Agent cash in an amount equal to the aggregate Maximum
\nDrawing Amount to be held by the Administrative Agent as collateral security for
\nthe Reimbursement Obligations.<\/p>\n
SECTION 13.2. TERMINATION OF COMMITMENTS. If any Event of Default
\npursuant to Sections 13.1(g) or 13.1(h) hereof shall occur, any unused
\nportion of the Total Commitment hereunder shall forthwith terminate and the
\nBanks and the Issuing Banks shall be relieved of all obligations to make Loans
\nor to issue, extend or renew Letters of Credit hereunder; or if any other Event
\nof Default shall occur, the Majority Banks may by notice to the Borrower
\nterminate the unused portion of the Total Commitment hereunder, and, upon such
\nnotice being given, such unused portion of the Total Commitment hereunder shall
\nterminate immediately and the Banks and the Issuing Banks shall be relieved of
\nall further obligations to make Loans or to issue, extend or renew Letters of
\nCredit hereunder. No termination of any portion of the Total Commitment
\nhereunder shall relieve the Borrower of any of its existing Obligations to the
\nBanks, the Issuing Banks or the Administrative Agent hereunder or elsewhere.<\/p>\n
SECTION 13.3. REMEDIES. In case any one or more of the Events of
\nDefault shall have occurred and be continuing, and whether or not the Banks
\nshall have accelerated the maturity of the Loans and other Obligations pursuant
\nto Section 13.1, each Bank, upon notice to the other Banks, if owed any amount
\nwith respect to the Loans or the Reimbursement Obligations, may proceed to
\nprotect and enforce its rights by suit in equity, action at law or other
\nappropriate proceeding, whether for the specific performance of any covenant or
\nagreement contained in this Agreement and the other Loan Documents or any
\ninstrument pursuant to which the Obligations to such Bank are evidenced,
\nincluding, without limitation, as permitted by applicable law the obtaining of
\nthe ex parte appointment of a receiver, and, if such amount shall have become
\ndue, by declaration or otherwise, proceed to enforce the payment thereof or any
\nlegal or equitable right of such Bank, any recovery being subject to the terms
\nof Section 30 hereof. No remedy herein conferred upon any Bank or the
\nAdministrative Agent or the holder of any Note is intended to be exclusive of
\nany other remedy and each and every remedy shall be cumulative and shall be in
\naddition to every other remedy given hereunder or now or hereafter existing at
\nlaw or in equity or by statute or any other provision of law.<\/p>\n
SECTION 14. SETOFF. Regardless of the adequacy of any collateral,
\nduring the continuance of an Event of Default, any deposits or other sums
\ncredited by or due from any Bank to the Borrower and any securities or other
\nproperty of the Borrower in the possession of such Bank may be applied to or set
\noff against the payment of Obligations and any and all other liabilities,
\ndirect, or indirect, absolute or contingent, due or to become due, now existing
\nor hereafter arising, of the Borrower to the Banks or the Administrative Agent.
\nAny amounts set off pursuant to this Section 14 shall be distributed ratably in
\naccordance with Section 30 among all of the Banks by the Bank setting off such
\namounts. If any Bank fails to share such setoff ratably, the Administrative
\nAgent shall have the right to withhold such Bank’s share of the Borrower’s
\npayments until each of the Banks shall have, in the aggregate, received a pro
\nrata repayment.<\/p>\n
72<\/p>\n
SECTION 15. EXPENSES. Whether or not the transactions contemplated
\nherein shall be consummated, the Borrower hereby promises to reimburse the
\nAdministrative Agent for all reasonable out-of-pocket fees and disbursements
\n(including all reasonable attorneys’ fees) incurred or expended in connection
\nwith the syndication, preparation, filing or recording, or interpretation of
\nthis Agreement, the other Loan Documents, or any amendment, modification,
\napproval, consent or waiver hereof or thereof. The Borrower further promises to
\nreimburse the Administrative Agent and the Banks for all reasonable
\nout-of-pocket fees and disbursements (including all reasonable legal fees and
\nthe allocable cost of in-house attorneys’ fees) incurred or expended in
\nconnection with the enforcement of any Obligations or the satisfaction of any
\nindebtedness of the Borrower hereunder or under any other Loan Document, or in
\nconnection with any litigation, proceeding or dispute hereunder in any way
\nrelated to the credit hereunder. The Borrower also promises to pay the
\nAdministrative Agent all reasonable out-of-pocket fees and disbursements,
\nincurred or expended in connection with the Competitive Bid Loan procedure under
\nSection 4 hereof.<\/p>\n
SECTION 16. THE AGENTS. <\/p>\n
SECTION 16.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby
\nirrevocably appoints and authorizes BKB to act as Administrative Agent,
\nprovided, however, the Administrative Agent is hereby authorized to serve only
\nas administrative and documentation agent for the Banks and to exercise such
\npowers as are reasonably incidental thereto and as are set forth in this
\nAgreement and the other Loan Documents. The Administrative Agent hereby
\nacknowledges that it does not have the authority to negotiate any agreement
\nwhich would bind the Banks or agree to any amendment, waiver or modification of
\nany of the Loan Documents or bind the Banks except as set forth in this
\nAgreement or the Loan Documents. Except as provided in this Agreement, and in
\nthe other Loan Documents, the Administrative Agent shall take action or refrain
\nfrom acting only upon instructions of the Banks. It is agreed that the duties,
\nrights, privileges and immunities of the Issuing Banks, in their capacity as
\nissuers of Letters of Credit hereunder, shall be identical to the duties,
\nrights, privileges and immunities of the Administrative Agent as provided in
\nthis Section 16. The Administrative Agent shall not have any duties or
\nresponsibilities or any fiduciary relationship with any Bank except those
\nexpressly set forth in this Agreement and the other Loan Documents. Neither the
\nAdministrative Agent nor any of its affiliates shall be responsible to the Banks
\nfor any recitals, statements, representations or warranties made by the Borrower
\nor any other Person whether contained herein or otherwise or for the value,
\nvalidity, effectiveness, genuineness, enforceability or sufficiency of this
\nAgreement, the other Loan Documents or any other document referred to or
\nprovided for herein or therein or for any failure by the Borrower or any other
\nPerson to perform its obligations hereunder or thereunder or in respect of the
\nNotes. The Administrative Agent may employ agents and attorneys-in-fact and
\nshall not be responsible for the negligence or misconduct of any such agents or
\nattorneys-in-fact selected by it with reasonable care. The Administrative Agent,
\nthe Agents and any of their directors, officers, employees or agents shall not
\nbe responsible for any action taken or omitted to be taken by it or them
\nhereunder or in connection herewith, except for its or their own gross
\nnegligence or willful misconduct. The Administrative Agent in its separate
\ncapacity as a Bank shall have the same rights and powers hereunder as any other
\nBank. The Documentation Agent and the Syndication Agents shall not have any
\nright, power, obligation, liability, responsibility or <\/p>\n
73<\/p>\n
duty under this Credit Agreement in such capacity, other than with respect to
\nthe Documentation Agent, those applicable to all Banks as Banks.<\/p>\n
SECTION 16.2. ACTIONS BY ADMINISTRATIVE AGENT. The Administrative Agent
\nshall be fully justified in failing or refusing to take any action under this
\nAgreement as reasonably deemed appropriate unless it shall first have received
\nthe consent of the Majority Banks (or, when expressly required hereby, all of
\nthe Banks), and shall be indemnified to its reasonable satisfaction by the Banks
\nagainst any and all liability and expense which may be incurred by it by reason
\nof taking or continuing to take any such action. The Administrative Agent shall
\nin all cases be fully protected in acting, or in refraining from acting, under
\nthis Agreement or any of the Loan Documents in accordance with the instruction
\nof the Majority Banks (or, when expressly required hereby or thereby, all of the
\nBanks), and such instruction and any action taken or failure to act pursuant
\nthereto shall be binding upon the Banks and all future holders of the Notes or
\nany Letter of Credit Participation.<\/p>\n
SECTION 16.3. INDEMNIFICATION. Without limiting the obligations of the
\nBorrower hereunder or under any other Loan Document, the Banks agree to
\nindemnify the Administrative Agent, its affiliates and its respective directors,
\nofficers, agents and employees (to the extent not reimbursed by the Borrower)
\nratably in accordance with their respective Commitment Percentages for any and
\nall liabilities, obligations, losses, damages, penalties, actions, judgments,
\nsuits, costs, expenses or disbursements of any kind or nature whatsoever which
\nmay at any time be imposed on, incurred by or asserted against the
\nAdministrative Agent in any way relating to or arising out of this Agreement or
\nany other Loan Document or any documents contemplated by or referred to herein
\nor therein or the transactions contemplated hereby or thereby or the enforcement
\nof any of the terms hereof or thereof or of any such other documents; provided,
\nthat no Bank shall be liable for any of the foregoing to the extent they arise
\nfrom the gross negligence or willful misconduct of the Administrative Agent (or
\nany agent thereof) and provided further that no Bank shall be liable with
\nrespect to acts of Section 20 Subsidiaries of other Banks, IT BEING THE INTENT
\nOF THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR
\nTHEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.<\/p>\n
SECTION 16.4. REIMBURSEMENT. Without limiting the provisions of
\nSections 6.1(a), 6.12, and 14, the Administrative Agent shall not be obliged to
\nmake available to any Person any sum which the Administrative Agent is expecting
\nto receive for the account of that Person until the Administrative Agent has
\ndetermined that it has received that sum. The Administrative Agent may, however,
\ndisburse funds prior to determining that the sums which the Administrative Agent
\nexpects to receive have been finally and unconditionally paid to the
\nAdministrative Agent, if the Administrative Agent wishes to do so. If and to the
\nextent that the Administrative Agent does disburse funds and it later becomes
\napparent that the Administrative Agent did not then receive a payment in an
\namount equal to the sum paid out, then any Person to whom the Administrative
\nAgent made the funds available shall, on demand from the Administrative Agent,
\nrefund to the Administrative Agent the sum paid to that Person. If, in the
\nopinion of the Administrative Agent, the distribution of any amount received by
\nit in such capacity hereunder or under the other Loan Documents might involve it
\nin liability, it may refrain from making distribution until its right to make
\ndistribution shall have been adjudicated by a court of competent jurisdiction.
\nIf <\/p>\n
74<\/p>\n
a court of competent jurisdiction shall adjudge that any amount received and
\ndistributed by the Administrative Agent is to be repaid, each Person to whom any
\nsuch distribution shall have been made shall either repay to the Administrative
\nAgent its proportionate share of the amount so adjudged to be repaid or shall
\npay over the same in such manner and to such Persons as shall be determined by
\nsuch court.<\/p>\n
SECTION 16.5. DOCUMENTS. The Administrative Agent will forward to each
\nBank, promptly after receipt thereof, a copy of each notice or other document
\nfurnished to the Administrative Agent for such Bank hereunder; provided,
\nhowever, that, notwithstanding the foregoing, the Administrative Agent may
\nfurnish to the Banks a monthly summary with respect to Letters of Credit issued
\nhereunder in lieu of copies of the related Letter of Credit Applications.<\/p>\n
SECTION 16.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.
\nEach Bank represents that it has, independently and without reliance on the
\nAdministrative Agent, the Agents or any other Bank, and based on such documents
\nand information as it has deemed appropriate, made its own appraisal of the
\nfinancial condition and affairs of the Borrower and the Guarantor and the
\ndecision to enter into this Agreement and the other Loan Documents and agrees
\nthat it will, independently and without reliance upon the Administrative Agent,
\nthe Agents or any other Bank, and based on such documents and information as it
\nshall deem appropriate at the time, continue to make its own appraisals and
\ndecisions in taking or not taking action under this Agreement or any other Loan
\nDocument. Except as herein expressly provided to the contrary, the
\nAdministrative Agent shall not be required to keep informed as to the
\nperformance or observance by the Borrower and the Guarantor of this Agreement,
\nthe other Loan Documents or any other document referred to or provided for
\nherein or therein or by any other Person of any other agreement or to make
\ninquiry of, or to inspect the properties or books of, any Person. Except for
\nnotices, reports and other documents and information expressly required to be
\nfurnished to the Banks by the Administrative Agent hereunder, the Administrative
\nAgent shall not have any duty or responsibility to provide any Bank with any
\ncredit or other information concerning any person which may come into the
\npossession of the Administrative Agent or any of their affiliates. Each Bank
\nshall have access to all documents relating to the Administrative Agent’s
\nperformance of their duties hereunder at such Bank’s request. Unless any Bank
\nshall promptly object to any action taken by the Administrative Agent hereunder
\nof which such Bank has actual knowledge (other than actions which require the
\nprior consent of such Bank in accordance with the terms hereof or to which the
\nprovisions of Section 16.8 are applicable and other than actions which
\nconstitute gross negligence or willful misconduct by the Administrative Agent),
\nsuch Bank shall be presumed to have approved the same.<\/p>\n
SECTION 16.7. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative
\nAgent may resign at any time by giving 60 days’ prior written notice thereof to
\nthe Banks and the Borrower. Upon any such resignation, the Banks (other than the
\nresigning Administrative Agent) shall have the right to appoint a successor
\nAdministrative Agent from among the Banks. If no successor to the Administrative
\nAgent shall have been so appointed by the Banks and shall have accepted such
\nappointment within 30 days after the retiring Administrative Agent’s giving of
\nnotice of resignation, then the retiring Administrative Agent may, on behalf of
\nthe Banks, appoint a successor Administrative Agent from among the remaining
\nBanks, which shall be a financial institution having a combined capital and
\nsurplus in excess of $1,000,000,000. Upon the <\/p>\n
75<\/p>\n
acceptance of any appointment as the Administrative Agent hereunder by a
\nsuccessor Administrative Agent, such successor Administrative Agent shall
\nthereupon succeed to and become vested with all the rights, powers, privileges
\nand duties of the retiring Administrative Agent, and the retiring Administrative
\nAgent shall be discharged from its duties and obligations hereunder. After the
\nretiring Administrative Agent’s resignation, the provisions of this Agreement
\nshall continue in effect for its benefit in respect of any actions taken or
\nomitted to be taken by it while it was acting as the Administrative Agent. Any
\nnew Issuing Bank appointed pursuant to this Section 16.7 shall immediately issue
\nnew Letters of Credit in place of Letters of Credit previously issued or, if
\nacceptable to the resigning Issuing Bank, issue letters of credit in favor of
\nthe resigning Issuing Bank as security for the outstanding Letters of Credit and
\nshall in due course replace all Letters of Credit previously issued by the
\nresigning Issuing Bank.<\/p>\n
SECTION 16.8. ACTION BY THE BANKS, CONSENTS, AMENDMENTS, WAIVERS, ETC.
\nAny action to be taken (including the giving of notice) may be taken, any
\nconsent or approval required or permitted by this Agreement or any other Loan
\nDocument to be given by the Banks may be given, any term of this Agreement, any
\nother Loan Document or any other instrument, document or agreement related to
\nthis Agreement or the other Loan Documents or mentioned therein may be amended,
\nand the performance or observance by the Borrower or any other Person of any of
\nthe terms thereof and any Default or Event of Default (as defined in any of the
\nabove-referenced documents or instruments) may be waived (either generally or in
\na particular instance and either retroactively or prospectively), only with the
\nwritten consent of the Majority Banks; provided, however, that no such consent
\nor amendment which affects the rights, duties or liabilities of the
\nAdministrative Agent or any Issuing Bank shall be effective without the written
\nconsent of the Administrative Agent or such Issuing Bank, as the case may be.
\nNotwithstanding the foregoing, no amendment, waiver or consent shall do any of
\nthe following unless in writing and signed by ALL of the Banks (a) increase the
\nprincipal amount of the Total Commitment (or subject any Bank to any additional
\nobligations), (b) reduce the principal of or interest on the Notes (including,
\nwithout limitation, interest on overdue amounts) or any fees payable hereunder,
\n(c) postpone any date fixed for any payment in respect of principal or interest
\n(including, without limitation, interest on overdue amounts) on the Notes or any
\nfee hereunder (except pursuant to Section 2.10); (d) change the definition of
\n“Majority Banks” or number of Banks which shall be required for the Banks or any
\nof them to take any action under the Loan Documents; (e) amend this Section
\n16.8; (f) change the Commitment Percentage of any Bank, except as permitted
\nunder Section 21 and Section 2.10 hereof, (g) change the Total Commitment
\nPercentage of any Bank, or (h) release the Borrower or the Guarantor from its
\nobligations hereunder (except as expressly set forth herein).<\/p>\n
SECTION 17. INDEMNIFICATION. The Borrower agrees to indemnify and hold
\nharmless the Banks, the Agents, the Issuing Banks, the Joint Lead Arrangers and
\nJoint Book Managers and the Administrative Agent and their affiliates, as well
\nas the Banks’ and the Administrative Agent’s and their affiliates’ shareholders,
\ndirectors, agents, officers, subsidiaries and affiliates, from and against all
\ndamages, losses, settlement payments, obligations, liabilities, claims, suits,
\npenalties, assessments, citations, directives, demands, judgments, actions or
\ncauses of action, whether statutorily created or under the common law, and
\nreasonable costs and expenses incurred, suffered, sustained or required to be
\npaid by an indemnified party by reason of or resulting from the transactions
\ncontemplated hereby, except any of the foregoing which result from the gross
\nnegligence or willful misconduct of any indemnified party. In any investigation,<\/p>\n
76<\/p>\n
enforcement matter, proceeding or litigation, or the preparation therefor, the
\nBanks and the Administrative Agent shall be entitled to select their own counsel
\nand, in addition to the foregoing indemnity, the Borrower agrees to pay promptly
\nthe reasonable fees and expenses of such counsel (including the non-duplicative
\nallocated cost of internal counsel), and settlement costs. In the event of the
\ncommencement of any such proceeding or litigation against the Banks or
\nAdministrative Agent by third parties, the Borrower shall be entitled to
\nparticipate in such proceeding or litigation with counsel of their choice at
\ntheir expense, provided that such counsel shall be reasonably satisfactory to
\nthe Banks or Administrative Agent. The covenants of this Section 17 shall
\nsurvive payment or satisfaction of payment of amounts owing with respect to any
\nNote or any other Loan Document and satisfaction of all the Obligations
\nhereunder, IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED
\nPARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.<\/p>\n
SECTION 18. WITHHOLDING TAXES. The Borrower hereby agrees that:<\/p>\n
(a) Any and all payments made by the Borrower hereunder shall
\n be made free and clear of, and without deduction for, any and all
\n present or future taxes, levies, fees, duties, imposts, deductions,
\n charges or withholdings of any nature whatsoever, excluding, in the
\n case of the Administrative Agent or the Banks or any holder of the
\n Notes, (i) taxes imposed on, or measured by, its net income or profits,
\n (ii) franchise taxes imposed on it, (iii) taxes imposed by any
\n jurisdiction as a direct consequence of it, or any of its affiliates,
\n having a present or former connection with such jurisdiction,
\n including, without limitation, being organized, existing or qualified
\n to do business, doing business or maintaining a permanent establishment
\n or office in such jurisdiction, and (iv) taxes imposed by reason of its
\n failure to comply with any applicable certification, identification,
\n information, documentation or other reporting requirement (all such
\n non-excluded taxes being hereinafter referred to as “Indemnifiable
\n Taxes”). In the event that any withholding or deduction from any
\n payment to be made by the Borrower hereunder is required in respect of
\n any Indemnifiable Taxes pursuant to any applicable law, or governmental
\n rule or regulation, then the Borrower will (i) direct to the relevant
\n taxing authority the full amount required to be so withheld or
\n deducted, (ii) forward to the Administrative Agent for delivery to the
\n applicable Bank an official receipt or other documentation satisfactory
\n to the Administrative Agent and the applicable Bank evidencing such
\n payment to such taxing authority, and (iii) direct to the
\n Administrative Agent for the account of the relevant Banks such
\n additional amount or amounts as is necessary to ensure that the net
\n amount actually received by each relevant Bank will equal the full
\n amount such Bank would have received had no such withholding or
\n deduction (including any Indemnifiable Taxes on such additional
\n amounts) been required. Moreover, if any Indemnifiable Taxes are
\n directly asserted against the Administrative Agent or any Bank with
\n respect to any payment received by the Administrative Agent or such
\n Bank by reason of the Borrower’s failure to properly deduct and
\n withhold such Indemnifiable Taxes from such payment, the Administrative
\n Agent or such Bank may pay such Indemnifiable Taxes and the Borrower
\n will promptly pay all such additional amounts (including any penalties,
\n interest or reasonable expenses) as is necessary in order that the net
\n amount received by such Person after the payment of<\/p>\n
77<\/p>\n
such Indemnifiable Taxes (including any Indemnifiable Taxes on such
\n additional amount) shall equal the amount such Person would have
\n received had not such Indemnifiable Taxes been asserted. Any such
\n payment shall be made promptly after the receipt by the Borrower from
\n the Administrative Agent or such Bank, as the case may be, of a written
\n statement setting forth in reasonable detail the amount of the
\n Indemnifiable Taxes and the basis of the claim.<\/p>\n
(b) The Borrower shall pay any present or future stamp or
\n documentary taxes or any other excise or any other similar levies which
\n arise from any payment made hereunder or from the execution, delivery
\n or registration of, or otherwise with respect to, this Agreement or any
\n other Loan Document (“Other Taxes”).<\/p>\n
(c) The Borrower hereby indemnifies and holds harmless the
\n Administrative Agent and each Bank for the full amount of Indemnifiable
\n Taxes or Other Taxes (including, without limitation, any Indemnifiable
\n Taxes or Other Taxes imposed on amounts payable under this Section 18)
\n paid by the Administrative Agent or such Bank, as the case may be, and
\n any liability (including penalties, interest and reasonable expenses)
\n arising therefrom or with respect thereto, by reason of the Borrower’s
\n failure to properly deduct and withhold Indemnifiable Taxes pursuant to
\n paragraph (a) above or to properly pay Other Taxes pursuant to
\n paragraph (b) above. Any indemnification payment from the Borrower
\n under the preceding sentence shall be made promptly after receipt by
\n the Borrower from the Administrative Agent or Bank of a written
\n statement setting forth in reasonable detail the amount of such
\n Indemnifiable Taxes or such Other Taxes, as the case may be, and the
\n basis of the claim.<\/p>\n
(d) If the Borrower pays any amount under this Section 18 to
\n the Administrative Agent or any Bank and such payee knowingly receives
\n a refund of any taxes with respect to which such amount was paid, the
\n Administrative Agent or such Bank, as the case may be, shall pay to the
\n Borrower the amount of such refund promptly following the receipt
\n thereof by such payee.<\/p>\n
(e) In the event any taxing authority notifies the Borrower or
\n the Guarantor that any of them has improperly failed to deduct or
\n withhold any taxes (other than Indemnifiable Taxes) from a payment made
\n hereunder to the Administrative Agent or any Bank, the Borrower shall
\n timely and fully pay such taxes to such taxing authority.<\/p>\n
(f) The Administrative Agent or the Banks shall, upon the
\n request of the Borrower, take reasonable measures to avoid or mitigate
\n the amount of Indemnifiable Taxes required to be deducted or withheld
\n from any payment made hereunder if such measures can be taken without
\n such Person in its sole judgment suffering any legal, regulatory or
\n economic disadvantage.<\/p>\n
(g) Without prejudice to the survival of any other agreement
\n of the parties hereunder, the agreements and obligations of the
\n Borrower contained in this Section 18 shall survive the payment in full
\n of the Obligations.<\/p>\n
78<\/p>\n
SECTION 19. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. <\/p>\n
SECTION 19.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The
\nBorrower acknowledges that from time to time financial advisory, investment
\nbanking and other services may be offered or provided to the Borrower or one or
\nmore of its Subsidiaries, in connection with this Agreement or otherwise, by a
\nSection 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
\nhereby authorizes (a) such Section 20 Subsidiary to share with the
\nAdministrative Agent and each Bank any information delivered to such Section 20
\nSubsidiary by the Borrower or any of its Subsidiaries, and (b) the
\nAdministrative Agent and each Bank to share with such Section 20 Subsidiary any
\ninformation delivered to the Administrative Agent or such Bank by the Borrower
\nor any of its Subsidiaries pursuant to this Agreement, or in connection with the
\ndecision of such Bank to enter into this Agreement; it being understood, in each
\ncase, that any such Section 20 Subsidiary receiving such information shall be
\nbound by the confidentiality provisions of this Agreement. Such authorization
\nshall survive the payment and satisfaction in full of all of Obligations.<\/p>\n
SECTION 19.2. CONFIDENTIALITY. Each of the Banks and the Administrative
\nAgent agrees, on behalf of itself and each of its affiliates, directors,
\nofficers, employees and representatives, to use reasonable precautions to keep
\nconfidential, in accordance with their customary procedures for handling
\nconfidential information of the same nature and in accordance with safe and
\nsound banking practices, any non-public information supplied to it by the
\nBorrower or any of its Subsidiaries pursuant to this Agreement that is
\nidentified by such Person as being confidential at the time the same is
\ndelivered to the Banks or the Administrative Agent, provided that nothing herein
\nshall limit the disclosure of any such information (a) after such information
\nshall have become public other than through a violation of this Section 19, (b)
\nto the extent required by statute, rule, regulation or judicial process, (c) to
\ncounsel for any of the Banks or the Administrative Agent, (d) to bank examiners
\nor any other regulatory authority having jurisdiction over any Bank or the
\nAdministrative Agent, or to auditors or accountants, (e) to the Administrative
\nAgent, any Bank or any Section 20 Subsidiary, (f) in connection with any
\nlitigation to which any one or more of the Banks, the Administrative Agent or
\nany Section 20 Subsidiary is a party, or in connection with the enforcement of
\nrights or remedies hereunder or under any other Loan Document, (g) to a
\nSubsidiary or affiliate of such Bank as provided in Section 19.1 or (h) to any
\nassignee or participant (or prospective assignee or participant) so long as such
\nassignee or participant agrees to be bound by the provisions of Section 21.<\/p>\n
SECTION 19.3. PRIOR NOTIFICATION. Unless specifically prohibited by
\napplicable law or court order, each of the Banks and the Administrative Agent
\nshall, prior to disclosure thereof, notify the Borrower of any request for
\ndisclosure of any such non-public information by any governmental agency or
\nrepresentative thereof (other than any such request in connection with an
\nexamination of the financial condition of such Bank by such governmental agency)
\nor pursuant to legal process.<\/p>\n
SECTION 19.4. OTHER. In no event shall any Bank or the Administrative
\nAgent be obligated or required to return any materials furnished to it or any
\nSection 20 Subsidiary by the Borrower or any of its Subsidiaries. The
\nobligations of each Bank under this Section 19 shall supersede and replace the
\nobligations of such Bank under any confidentiality letter in respect of this
\nfinancing signed and delivered by such Bank to the Borrower prior to the date
\nhereof and shall be binding upon <\/p>\n
79<\/p>\n
any assignee of, or purchaser of any participation in, any interest in any of
\nthe Loans or Reimbursement Obligations from any Bank.<\/p>\n
SECTION 20. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
\nall covenants, agreements, representations and warranties made herein, in the
\nother Loan Documents or in any documents or other papers delivered by or on
\nbehalf of the Borrower or the Guarantor pursuant hereto shall be deemed to have
\nbeen relied upon by the Banks, the Issuing Banks and the Administrative Agent,
\nnotwithstanding any investigation heretofore or hereafter made by them, and
\nshall survive the making by the Banks of the Loans and the issuance, extension
\nor renewal of any Letters of Credit by any Issuing Bank, as herein contemplated,
\nand shall continue in full force and effect so long as any amount due under this
\nAgreement, any Obligation, any Letter of Credit or any Note remains outstanding
\nand unpaid or any Bank has any obligation to make any Loans or any Issuing Bank
\nhas any obligation to issue, extend, or renew any Letters of Credit hereunder.
\nAll statements contained in any certificate or other paper delivered by or on
\nbehalf of the Borrower pursuant hereto or in connection with the transactions
\ncontemplated hereby shall constitute representations and warranties by the
\nBorrower hereunder.<\/p>\n
SECTION 21. ASSIGNMENT AND PARTICIPATION. It is understood and agreed
\nthat each Bank shall have the right to assign at any time all or a portion of
\nits Commitment Percentage and interests in the risk relating to the Loans,
\noutstanding Letters of Credit and its Commitment hereunder in an amount equal to
\nor greater than $5,000,000 (or, if a Bank’s Commitment is less than $5,000,000,
\nin a minimum amount equal to such Bank’s Commitment, provided that prior to any
\nCommitment reductions pursuant to Section 2.3, such Bank’s Commitment was at
\nleast $10,000,000) to additional banks or other financial institutions with the
\nprior written approval of the Administrative Agent and, so long as no Event of
\nDefault has occurred and is continuing, the Borrower, which approvals shall not
\nbe unreasonably withheld. Any Bank may at any time, and from time to time,
\nassign to any branch, lending office, or affiliate or such Bank all or any part
\nof its rights and obligations under the Loan Documents by notice to the
\nAdministrative Agent and the Borrower. It is further agreed that each bank or
\nother financial institution which executes and delivers to the Administrative
\nAgent and the Borrower hereunder an Assignment and Acceptance substantially in
\nthe form of Exhibit G hereto (an “Assignment and Acceptance”) together with an
\nassignment fee in the amount of $3,500 payable by the assigning Bank to the
\nAdministrative Agent, shall, on the date specified in such Assignment and
\nAcceptance, become a party to this Agreement and the other Loan Documents for
\nall purposes of this Agreement and the other Loan Documents, and its portion of
\nthe Commitment, the Loans and Letters of Credit shall be as set forth in such
\nAssignment and Acceptance. The Bank assignor thereunder shall, to the extent
\nthat rights and obligations hereunder have been assigned by it pursuant to such
\nAssignment and Acceptance, relinquish its rights and be released from its
\nobligations under this Agreement and the other Loan Documents. Upon the
\nexecution and delivery of such Assignment and Acceptance, (a) the Borrower shall
\nissue to the assignee bank or other financial institution Notes in the amount of
\nsuch bank’s or other financial institution’s Commitment dated the date of the
\nassignment or such other date as may be specified by the Administrative Agent,
\nand otherwise completed in substantially the form of Exhibits A or B, and to the
\nextent any assigning Bank has retained a portion of its obligations hereunder, a
\nreplacement Syndicated Note, to the assigning Bank reflecting its assignment;
\n(b) to the extent applicable, the Borrower shall issue a Competitive Bid Note in
\nsubstantially the form of Exhibit C (and a replacement<\/p>\n
80<\/p>\n
Competitive Bid Note) or the Administrative Agent shall make appropriate entries
\non the Competitive Bid Loan Accounts to reflect such assignment of Competitive
\nBid Loan(s); (c) the Administrative Agent shall distribute to the Borrower, the
\nBanks and such bank or financial institution a revised Schedule 1 reflecting
\nsuch changes; and (d) this Agreement shall be deemed to be appropriately amended
\nto reflect (i) the status of the bank or financial institution as a party hereto
\nand (ii) the status and rights of the Banks hereunder.<\/p>\n
Each Bank shall also have the right to grant participations to one or
\nmore banks or other financial institutions in its Commitment, the Loans and
\noutstanding Letters of Credit. The documents evidencing any such participation
\nshall limit such participating bank’s or financial institution’s voting rights
\nwith respect to this Agreement to the matters set forth in Section 16.8 which
\nrequire the approval of all Banks.<\/p>\n
Notwithstanding the foregoing, no assignment or participation shall
\noperate to increase the Total Commitment hereunder or otherwise alter the
\nsubstantive terms of this Agreement, and no Bank which retains a Commitment
\nhereunder shall have a Commitment of less than $10,000,000, as such amount may
\nbe reduced upon reductions in the Total Commitment pursuant to Section 2.3
\nhereof.<\/p>\n
Anything contained in this Section 21 to the contrary notwithstanding,
\nany Bank may at any time pledge all or any portion of its interest and rights
\nunder this Agreement (including all or any portion of its Notes) to any of the
\ntwelve Federal Reserve Banks organized under Section 4 of the Federal Reserve
\nAct, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall
\nrelease the pledgor Bank from its obligations hereunder or under any of the
\nother Loan Documents.<\/p>\n
The Borrower agrees that in addition to disclosures made in accordance
\nwith standard and customary banking practices any Bank may disclose information
\nobtained by such Bank pursuant to this Agreement to assignees or participants
\nand potential assignees or participants hereunder; provided that such assignees
\nor participants or potential assignees or participants shall agree to be bound
\nby Section 19 hereof.<\/p>\n
SECTION 22. PARTIES IN INTEREST. All the terms of this Agreement and
\nthe other Loan Documents shall be binding upon and inure to the benefit of and
\nbe enforceable by the respective successors and assigns of the parties hereto
\nand thereto; provided, that the Borrower shall not assign or transfer its rights
\nor obligations hereunder or thereunder without the prior written consent of each
\nof the Banks.<\/p>\n
SECTION 23. NOTICES, ETC. Except as otherwise expressly provided in
\nthis Agreement, all notices and other communications made or required to be
\ngiven pursuant to this Agreement or the other Loan Documents shall be in writing
\nand shall be delivered in hand, mailed by United States first class mail,
\npostage prepaid, or sent by telegraph, telex or facsimile and confirmed by
\nletter, addressed as follows:<\/p>\n
(a) if to the Borrower or the Guarantor, at 1001 Fannin
\n Street, Suite 4000, Houston, Texas 77002, Attention: Ronald H. Jones,
\n facsimile number (713) 209-9710; or<\/p>\n
81<\/p>\n
(b) if to BKB or the Administrative Agent at BankBoston, N.A.,
\n 100 Federal Street, Boston, Massachusetts 02110, Attention: Arthur J.
\n Oberheim, Director, facsimile number (617) 434-2160; or<\/p>\n
(c) if to any Bank, at the last address provided to the
\n Administrative Agent;<\/p>\n
or such other address for notice as shall have last been furnished in writing to
\nthe Person giving the notice.<\/p>\n
Any such notice or demand shall be deemed to have been duly given or
\nmade and to have become effective (a) if delivered by hand to a responsible
\nofficer of the party to which it is directed, at the time of the receipt thereof
\nby such officer, (b) if sent by registered or certified first-class mail,
\npostage prepaid, five Business Days after the posting thereof, and (c) if sent
\nby telex, facsimile, or cable, at the time of the dispatch thereof, if in normal
\nbusiness hours in the country of receipt, or otherwise at the opening of
\nbusiness on the following Business Day.<\/p>\n
SECTION 24. MISCELLANEOUS. The rights and remedies herein expressed are
\ncumulative and not exclusive of any other rights which the Banks, the Issuing
\nBanks or the Administrative Agent would otherwise have. The captions in this
\nAgreement are for convenience of reference only and shall not define or limit
\nthe provisions hereof. This Agreement and any amendment hereof may be executed
\nin several counterparts and by each party on a separate counterpart, each of
\nwhich when so executed and delivered shall be an original, but all of which
\ntogether shall constitute one instrument. In proving this Agreement it shall not
\nbe necessary to produce or account for more than one such counterpart signed by
\nthe party against whom enforcement is sought.<\/p>\n
SECTION 25. CONSENTS, ETC. Neither this Agreement nor any term hereof
\nmay be changed, waived, discharged or terminated, except as provided in this
\nSection 25, subject to the provisions of Section 16.8. No waiver shall extend to
\nor affect any obligation not expressly waived or impair any right consequent
\nthereon. Except as otherwise expressly provided in this Agreement, any consent
\nor approval required or permitted by this Agreement to be given by the Banks may
\nbe given, and any term of this Agreement or of any other instrument related
\nhereto or mentioned herein may be amended, and the performance or observance by
\nthe Borrower of any terms of this Agreement or such other instrument or the
\ncontinuance of any Default or Event of Default may be waived (either generally
\nor in a particular instance and either retroactively or prospectively) with, but
\nonly with, the written consent of the Borrower and the Majority Banks. To the
\nextent permitted by law, no course of dealing or delay or omission on the part
\nof any of the Banks, the Issuing Banks or the Administrative Agent in exercising
\nany right shall operate as a waiver thereof or otherwise be prejudicial thereto.
\nNo notice to or demand upon the Borrower shall entitle the Borrower to other or
\nfurther notice or demand in similar or other circumstances.<\/p>\n
SECTION 26. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
\nLAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
\nJURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
\nCONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
\nANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE <\/p>\n
82<\/p>\n
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE
\nBORROWER AND THE GUARANTOR HEREBY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO
\nCLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
\nSPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
\nOR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A)
\nCERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK, ANY ISSUING
\nBANK, THE ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED, EXPRESSLY OR
\nOTHERWISE, THAT SUCH BANK, SUCH ISSUING BANK, THE ADMINISTRATIVE AGENT OR SUCH
\nAGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
\nWAIVERS AND (B) ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE BANKS, AND THE
\nISSUING BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
\nDOCUMENTS BECAUSE OF, AMONG OTHER THINGS, THE BORROWER’S AND THE GUARANTOR’S
\nWAIVERS AND CERTIFICATIONS CONTAINED HEREIN.<\/p>\n
SECTION 27. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
\nAND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE
\nOF NEW YORK AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
\n5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
\nNEW YORK. THE BORROWER AND THE GUARANTOR CONSENT AND AGREE THAT ANY SUIT FOR THE
\nENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
\nIN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
\nCONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
\nIN ANY SUCH SUIT BEING MADE UPON THE BORROWER IN ACCORDANCE WITH LAW AT THE
\nADDRESS SPECIFIED IN SECTION 23. THE BORROWER AND THE GUARANTOR HEREBY WAIVE ANY
\nOBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR
\nANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.<\/p>\n
SECTION 28. SEVERABILITY. The provisions of this Agreement are
\nseverable and if any one clause or provision hereof shall be held invalid or
\nunenforceable in whole or in part in any jurisdiction, then such invalidity or
\nunenforceability shall affect only such clause or provision, or part thereof, in
\nsuch jurisdiction, and shall not in any manner affect such clause or provision
\nin any other jurisdiction, or any other clause or provision of this Agreement in
\nany jurisdiction.<\/p>\n
SECTION 29. GUARANTY. <\/p>\n
SECTION 29.1. GUARANTY. For value received and hereby acknowledged and
\nas an inducement to the Banks and the Issuing Banks to make the Loans available
\nto the Borrower, and issue, extend or renew Letters of Credit for the account of
\nthe Borrower, the Guarantor hereby unconditionally and irrevocably guarantees
\n(a) the full punctual payment when due, whether at stated maturity,<\/p>\n
83<\/p>\n
by acceleration or otherwise, of all Obligations of the Borrower now or
\nhereafter existing whether for principal, interest, fees, expenses or otherwise,
\nand (b) the strict performance and observance by the Borrower of all agreements,
\nwarranties and covenants applicable to the Borrower in the Loan Documents and
\n(c) the obligations of the Borrower under the Loan Documents (such Obligations
\ncollectively being hereafter referred to as the “Guaranteed Obligations”).<\/p>\n
SECTION 29.2. GUARANTY ABSOLUTE. The Guarantor guarantees that the
\nGuaranteed Obligations will be paid strictly in accordance with the terms
\nhereof, regardless of any law, regulation or order now or hereafter in effect in
\nany jurisdiction affecting any of such terms or the rights of any Bank, any
\nIssuing Bank or the Administrative Agent with respect thereto. The liability of
\nthe Guarantor under the guaranty granted under this Agreement with regard to the
\nGuaranteed Obligations shall be absolute and unconditional irrespective of:<\/p>\n
(a) any change in the time, manner or place of payment of, or
\n in any other term of, all or any of its Guaranteed Obligations or any
\n other amendment or waiver of or any consent to departure from this
\n Agreement or any other Loan Document (with regard to such Guaranteed
\n Obligations);<\/p>\n
(b) any release or amendment or waiver of or consent to
\n departure from any other guaranty for all or any of its Guaranteed
\n Obligations;<\/p>\n
(c) any change in ownership of the Borrower;<\/p>\n
(d) any acceptance of any partial payment(s) from the Borrower
\n or the Guarantor; or<\/p>\n
(e) any other circumstance which might otherwise constitute a
\n defense available to, or a discharge of, the Borrower in respect of its
\n Obligations under any Loan Document.<\/p>\n
The guaranty under this Agreement shall continue to be effective or be
\nreinstated, as the case may be, if at any time any payment of any Guaranteed
\nObligation is rescinded or must otherwise be returned by the Banks, the Issuing
\nBanks or the Administrative Agent upon the insolvency, bankruptcy or
\nreorganization of the Borrower or otherwise, all as though such payment had not
\nbeen made.<\/p>\n
SECTION 29.3. EFFECTIVENESS; ENFORCEMENT. The guaranty under this
\nAgreement shall be effective and shall be deemed to be made with respect to each
\nLoan and each Letter of Credit as of the time it is made, issued or extended, or
\nbecomes a Letter of Credit under this Agreement, as applicable. No invalidity,
\nirregularity or unenforceability by reason of any bankruptcy or similar law, or
\nany law or order of any government or agency thereof purporting to reduce, amend
\nor otherwise affect any liability of the Borrower, and no defect in or
\ninsufficiency or want of powers of the Borrower or irregular or improperly
\nrecorded exercise thereof, shall impair, affect, be a defense to or claim
\nagainst such guaranty. The guaranty under this Agreement is a continuing
\nguaranty and shall (a) survive any termination of this Agreement, and (b) remain
\nin full force and effect until payment in full of, and performance of, all
\nGuaranteed Obligations and <\/p>\n
84<\/p>\n
all other amounts payable under this Agreement. The guaranty under this
\nAgreement is made for the benefit of the Administrative Agent, the Issuing Banks
\nand the Banks and their successors and assigns, and may be enforced from time to
\ntime as often as occasion therefor may arise and without requirement on the part
\nof the Administrative Agent, the Issuing Banks or the Banks first to exercise
\nany rights against the Borrower, or to resort to any other source or means of
\nobtaining payment of any of the said obligations or to elect any other remedy.<\/p>\n
SECTION 29.4. WAIVER. Except as otherwise specifically provided in any
\nof the Loan Documents, the Guarantor hereby waives promptness, diligence,
\nprotest, notice of protest, all suretyship defenses, notice of acceptance and
\nany other notice with respect to any of its Guaranteed Obligations and the
\nguaranty under this Agreement and any requirement that the Banks, the Issuing
\nBanks or the Administrative Agent protect, secure, perfect any security interest
\nor lien or any property subject thereto or exhaust any right or take any action
\nagainst the Borrower or any other Person. The Guarantor also irrevocably waives,
\nto the fullest extent permitted by law, all defenses which at any time may be
\navailable to it in respect of its Guaranteed Obligations by virtue of any
\nstatute of limitations, valuation, stay, moratorium law or other similar law now
\nor hereafter in effect.<\/p>\n
SECTION 29.5. EXPENSES. The Guarantor hereby promises to reimburse (a)
\nthe Administrative Agent for all reasonable out-of-pocket fees and disbursements
\n(including all reasonable attorneys’ fees), incurred or expended in connection
\nwith the preparation, filing or recording, or interpretation of the guaranty
\nunder this Agreement, the other Loan Documents to which the Guarantor is a
\nparty, or any amendment, modification, approval, consent or waiver hereof or
\nthereof, and (b) the Administrative Agent, the Issuing Banks and the Banks and
\ntheir respective affiliates for all reasonable out-of-pocket fees and
\ndisbursements (including reasonable attorneys’ fees), incurred or expended in
\nconnection with the enforcement of its Guaranteed Obligations (whether or not
\nlegal proceedings are instituted). The Guarantor will pay any taxes (including
\nany interest and penalties in respect thereof) other than the Banks’ taxes based
\non overall income or profits, payable on or with respect to the transactions
\ncontemplated by the guaranty under this Agreement, the Guarantor hereby agreeing
\njointly and severally to indemnify each Bank with respect thereto.<\/p>\n
SECTION 29.6. CONCERNING JOINT AND SEVERAL LIABILITY OF THE GUARANTOR.<\/p>\n
(a) The Guarantor hereby irrevocably and unconditionally
\n accepts, not merely as a surety but also as a co-debtor, joint and
\n several liability with the Borrower, with respect to the payment and
\n performance of all of its Guaranteed Obligations (including, without
\n limitation, any Guaranteed Obligations arising under this Section 29),
\n it being the intention of the parties hereto that all such Guaranteed
\n Obligations shall be the joint and several Guaranteed Obligations of
\n the Guarantor and the Borrower without preferences or distinction among
\n them.<\/p>\n
(b) If and to the extent that the Borrower shall fail to make
\n any payment with respect to any of its Obligations as and when due or
\n to perform any of its Guaranteed Obligations in accordance with the
\n terms thereof, then in each such event the applicable Guarantor will
\n make such payment with respect to, or perform, such Guaranteed
\n Obligation.<\/p>\n
85<\/p>\n
(c) The Guaranteed Obligations of the Guarantor under the
\n provisions of this Section 29 constitute full recourse obligations of
\n the Guarantor enforceable against the Guarantor to the full extent of
\n its properties and assets, irrespective of the validity, regularity or
\n enforceability of this Agreement or any other circumstance whatsoever.<\/p>\n
(d) Except as otherwise expressly provided in this Agreement,
\n the Guarantor hereby waives notice of acceptance of its joint and
\n several liability, notice of any Loans made, or Letters of Credit
\n issued under this Agreement, notice of any action at any time taken or
\n omitted by the Administrative Agent, the Issuing Banks or the Banks
\n under or in respect of any of the Guaranteed Obligations, and,
\n generally, to the extent permitted by applicable law, all demands,
\n notices and other formalities of every kind in connection with this
\n Agreement. The Guarantor hereby assents to, and waives notice of, any
\n extension or postponement of the time for the payment of any of the
\n Guaranteed Obligations, the acceptance of any payment of any of the
\n Guaranteed Obligations, the acceptance of any partial payment thereon,
\n any waiver, consent or other action or acquiescence by the
\n Administrative Agent, the Issuing Banks or the Banks at any time or
\n times in respect of any Default or Event of Default by the Borrower or
\n the Guarantor in the performance or satisfaction of any term, covenant,
\n condition or provision of this Agreement or any other Loan Document,
\n any and all other indulgences whatsoever by the Administrative Agent,
\n the Issuing Banks or the Banks in respect of any of the Guaranteed
\n Obligations, and the taking, addition, substitution or release, in
\n whole or in part, at any time or times, of any security for any of the
\n Guaranteed Obligations or the addition, substitution or release, in
\n whole or in part, of the Borrower or the Guarantor. Without limiting
\n the generality of the foregoing, the Guarantor assents to any other
\n action or delay in acting or failure to act on the part of the Banks,
\n the Issuing Banks or the Administrative Agent with respect to the
\n failure by the Borrower or the Guarantor to comply with its respective
\n Obligations or Guaranteed Obligations, including, without limitation,
\n any failure strictly or diligently to assert any right or to pursue any
\n remedy or to comply fully with applicable laws or regulations
\n thereunder, which might, but for the provisions of this Section 29,
\n afford grounds for terminating, discharging or relieving the Guarantor,
\n in whole or in part, from any of the Guaranteed Obligations under this
\n Section 29, it being the intention of the Guarantor that, so long as
\n any of the Guaranteed Obligations hereunder remain unsatisfied, the
\n Guaranteed Obligations of the Guarantor under this Section 29 shall not
\n be discharged except by performance and then only to the extent of such
\n performance. The Guaranteed Obligations of the Guarantor under this
\n Section 29 shall not be diminished or rendered unenforceable by any
\n winding up, reorganization, arrangement, liquidation, reconstruction or
\n similar proceeding with respect to the Borrower or the Guarantor or the
\n Banks, the Issuing Banks or the Administrative Agent. The joint and
\n several liability of the Guarantor hereunder shall continue in full
\n force and effect notwithstanding any absorption, merger, consolidation,
\n amalgamation or any other change whatsoever in the name, membership,
\n constitution or place of formation of the Borrower or the Guarantor,
\n the Banks, the Issuing Banks or the Administrative Agent.<\/p>\n
(e) The Guarantor shall be liable under this Section 29 only
\n for the maximum amount of such liabilities that can be incurred under
\n applicable law without rendering this Section 29 voidable under
\n applicable law relating to fraudulent conveyance and fraudulent<\/p>\n
86<\/p>\n
transfer, and not for any greater amount. Accordingly, if any
\n obligation under any provision under this Section 29 shall be declared
\n to be invalid or unenforceable in any respect or to any extent, it is
\n the stated intention and agreement of the Guarantor, the Administrative
\n Agent, the Issuing Banks and the Banks that any balance of the
\n obligation created by such provision and all other obligations of the
\n Guarantor under this Section 29 to the Banks, the Issuing Banks or the
\n Administrative Agent shall remain valid and enforceable, and that all
\n sums not in excess of those permitted under applicable law shall remain
\n fully collectible by the Banks, the Issuing Banks and the
\n Administrative Agent from the Borrower or the Guarantor, as the case
\n may be.<\/p>\n
(f) The provisions of this Section 29 are made for the benefit
\n of the Administrative Agent, the Issuing Banks and the Banks and their
\n successors and assigns, and may be enforced in good faith by them from
\n time to time against the Guarantor as often as occasion therefor may
\n arise and without requirement on the part of the Administrative Agent,
\n the Issuing Banks or the Banks first to marshal any of their claims or
\n to exercise any of their rights against the Borrower or the Guarantor
\n or to exhaust any remedies available to them against the Borrower or
\n the Guarantor or to resort to any other source or means of obtaining
\n payment of any of the obligations hereunder or to elect any other
\n remedy. The provisions of this Section 29 shall remain in effect until
\n all of the Guaranteed Obligations shall have been paid in full or
\n otherwise fully satisfied and the Commitments have expired and all
\n outstanding Letters of Credit have expired, matured or otherwise been
\n terminated. If at any time, any payment, or any part thereof, made in
\n respect of any of the Guaranteed Obligations, is rescinded or must
\n otherwise be restored or returned by the Banks, the Issuing Banks or
\n the Administrative Agent upon the insolvency, bankruptcy or
\n reorganization of the Borrower or the Guarantor, or otherwise, the
\n provisions of this Section 29 will forthwith be reinstated in effect,
\n as though such payment had not been made.<\/p>\n
SECTION 29.7. WAIVER. Until the final payment and performance in full
\nof all of the Obligations, the Guarantor shall not exercise and the Guarantor
\nhereby waives any rights the Guarantor may have against the Borrower arising as
\na result of payment by the Guarantor hereunder, by way of subrogation,
\nreimbursement, restitution, contribution or otherwise, and will not prove any
\nclaim in competition with the Administrative Agent, the Issuing Banks or any
\nBank in respect of any payment hereunder in any bankruptcy, insolvency or
\nreorganization case or proceedings of any nature; the Guarantor will not claim
\nany setoff, recoupment or counterclaim against the Borrower in respect of any
\nliability of the Borrower to the Guarantor; and the Guarantor waives any benefit
\nof and any right to participate in any collateral security which may be held by
\nthe Administrative Agent, the Issuing Banks or any Bank.<\/p>\n
SECTION 29.8. SUBROGATION; SUBORDINATION. The payment of any amounts
\ndue with respect to any indebtedness of the Borrower for money borrowed or
\ncredit received now or hereafter owed to the Guarantor is hereby subordinated to
\nthe prior payment in full of all of the Obligations. The Guarantor agrees that,
\nafter the occurrence of any default in the payment or performance of any of the
\nObligations, the Guarantor will not demand, sue for or otherwise attempt to
\ncollect any such indebtedness of the Borrower to the Guarantor until all of the
\nObligations shall have been paid in full. If, notwithstanding the foregoing
\nsentence, the Guarantor shall collect, enforce <\/p>\n
87<\/p>\n
or receive any amounts in respect of such indebtedness while any Obligations are
\nstill outstanding, such amounts shall be collected, enforced and received by the
\nGuarantor as trustee for the Banks, the Issuing Banks and the Administrative
\nAgent and be paid over to the Administrative Agent at Default, for the benefit
\nof the Banks, the Issuing Banks, and the Administrative Agent on account of the
\nObligations without affecting in any manner the liability of the Guarantor under
\nthe other provisions hereof.<\/p>\n
SECTION 30. PARI PASSU TREATMENT.<\/p>\n
(a) Notwithstanding anything to the contrary set forth herein,
\n each payment or prepayment of principal and interest received after the
\n occurrence of an Event of Default hereunder shall be distributed pari
\n passu among the Banks, in accordance with the aggregate outstanding
\n principal amount of the Obligations owing to each Bank divided by the
\n aggregate outstanding principal amount of all Obligations.<\/p>\n
(b) Following the occurrence and during the continuance of any
\n Event of Default, each Bank agrees that if it shall, through the
\n exercise of a right of banker’s lien, setoff or counterclaim against
\n any Borrower (pursuant to Section 14 or otherwise), including a secured
\n claim under Section 506 of the Bankruptcy Code or other security or
\n interest arising from or in lieu of, such secured claim, received by
\n such Bank under any applicable bankruptcy, insolvency or other similar
\n law or otherwise, obtain payment (voluntary or involuntary) in respect
\n of the Notes, Loans, Reimbursement Obligations and other Obligations
\n held by it (other than pursuant to Section 6.4, Section 6.5 or Section
\n 6.7) as a result of which the unpaid principal portion of the Notes and
\n the Obligations held by it shall be proportionately less than the
\n unpaid principal portion of the Notes and Obligations held by any other
\n Bank, it shall be deemed to have simultaneously purchased from such
\n other Bank a participation in the Notes and Obligations held by such
\n other Bank, so that the aggregate unpaid principal amount of the Notes,
\n Obligations and participations in Notes and Obligations held by each
\n Bank shall be in the same proportion to the aggregate unpaid principal
\n amount of the Notes and Obligations then outstanding as the principal
\n amount of the Notes and other Obligations held by it prior to such
\n exercise of banker’s lien, setoff or counterclaim was to the principal
\n amount of all Notes and other Obligations outstanding prior to such
\n exercise of banker’s lien, setoff or counterclaim; provided, however,
\n that if any such purchase or purchases or adjustments shall be made
\n pursuant to this Section 30 and the payment giving rise thereto shall
\n thereafter be recovered, such purchase or purchases or adjustments
\n shall be rescinded to the extent of such recovery and the purchase
\n price or prices or adjustments restored without interest. The Borrower
\n expressly consents to the foregoing arrangements and agrees that any
\n Person holding such a participation in the Notes and the Obligations
\n deemed to have been so purchased may exercise any and all rights of
\n banker’s lien, setoff or counterclaim with respect to any and all
\n moneys owing by the Borrower to such Person as fully as if such Person
\n had made a Loan directly to the Borrower in the amount of such
\n participation.<\/p>\n
SECTION 31. TRANSITIONAL ARRANGEMENTS. Upon the Effective Date (a) this
\nAgreement shall supersede the Prior Loan Agreement in its entirety, and (b) the
\nparties acknowledge and agree that the Pricing Table set forth herein shall be
\napplied retroactively to <\/p>\n
88<\/p>\n
October 29, 1999 to the Loans and Letters of Credit outstanding under the Prior
\nLoan Agreement; and the Borrower hereby agrees to pay on December 15, 1999 (i)
\nany facility fees due under the Prior Loan Agreement, (ii) any incremental
\namounts due as the result of such retroactive increase to the extent not paid on
\nor before the Effective Date, and (iii) any other amounts due under the Prior
\nLoan Agreement.<\/p>\n
SECTION 32. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
\nDOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
\nCONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
\nAGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
\nPARTIES.<\/p>\n
89<\/p>\n
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
\nas of the date first set forth above.<\/p>\n
THE BORROWER:<\/p>\n
WASTE MANAGEMENT, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
90<\/p>\n
THE GUARANTOR:<\/p>\n
WASTE MANAGEMENT HOLDINGS, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
91<\/p>\n
THE BANKS AND AGENTS:<\/p>\n
BANKBOSTON, N.A., individually and as
\n Administrative Agent<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANK OF AMERICA, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
CHASE BANK OF TEXAS, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH, individually
\n and as Documentation Agent<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
92<\/p>\n
ABN AMRO BANK N.V.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
ALLFIRST BANK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANCA DI ROMA<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANCA MONTE DEI PASCHI DI SIENA S.P.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANK HAPOALIM<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
93<\/p>\n
BANK OF MONTREAL<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
THE BANK OF NEW YORK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
THE BANK OF NOVA SCOTIA<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANK ONE, TEXAS, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
BANQUE NATIONALE DE PARIS<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
94<\/p>\n
CARIPLO-CASSA DI RISPARMIO DELLE PROVINCIE
\n LOMBARDE SPA<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
CITIBANK, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
COMERICA BANK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
\n BRANCHES<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
CREDIT LYONNAIS NEW YORK BRANCH<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
95<\/p>\n
CREDIT SUISSE FIRST BOSTON<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
DLJ CAPITAL FUNDING, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
FIRST UNION NATIONAL BANK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
FLEET BANK, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
96<\/p>\n
KBC BANK N.V.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
MELLON BANK, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
MICHIGAN NATIONAL BANK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
MORGAN GUARANTY TRUST COMPANY OF NEW YORK<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
\n NEW YORK BRANCH<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
97<\/p>\n
PNC BANK, NATIONAL ASSOCIATION<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
ROYAL BANK OF CANADA<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
SUNTRUST BANK, ATLANTA<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
TORONTO DOMINION (TEXAS), INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
UNICREDITO ITALIANO, S.P.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
WACHOVIA BANK, N.A.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:
\n 98<\/p>\n
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
\n NEW YORK BRANCH<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,9293],"corporate_contracts_industries":[9415,9537],"corporate_contracts_types":[9560,9567],"class_list":["post-41121","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-waste-management-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-utilities__sanitary","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41121","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41121"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41121"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41121"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}