REVOLVING CREDIT AGREEMENT
DATED AS OF JUNE 29, 2001
by and among
WASTE MANAGEMENT, INC.
(the "Borrower")
and
WASTE MANAGEMENT HOLDINGS, INC.
(the "Guarantor")
and
FLEET NATIONAL BANK ("Fleet")
BANK OF AMERICA, N.A. ("BOA")
THE CHASE MANHATTAN BANK ("Chase")
DEUTSCHE BANK AG, NEW YORK BRANCH ("Deutsche")
AND THE OTHER FINANCIAL INSTITUTIONS WHICH BECOME
A PARTY TO THIS AGREEMENT
(Collectively, the "Banks")
and
FLEET AS ADMINISTRATIVE AGENT (the "Administrative Agent")
and
DEUTSCHE AND CITIBANK, N.A., AS CO-DOCUMENTATION AGENTS
(the "Co-Documentation Agents")
and
BOA AND J.P. MORGAN SECURITIES INC. ("JPMORGAN") AS CO-SYNDICATION AGENTS
(the "Co-Syndication Agents")
and
JPMORGAN AND BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
(the "Joint Lead Arrangers and Joint Book Managers")
<PAGE> 2
-ii-
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION..................................................1
Section 1.1. Definitions...................................................................1
Section 1.2. Rules of Interpretation.......................................................16
SECTION 2. THE LOAN FACILITIES......................................................................17
Section 2.1. Commitment to Lend............................................................17
Section 2.2. Facility Fee..................................................................17
Section 2.3. Reduction of Total Commitment.................................................18
Section 2.4. The Syndicated Notes..........................................................18
Section 2.5. Interest on Loans.............................................................19
Section 2.6. Requests for Syndicated Loans.................................................19
Section 2.7. Election of Eurodollar Rate; Notice of Election; Interest Periods; Minimum
Amounts.....................................................................................20
Section 2.8. Funds for Syndicated Loans....................................................21
Section 2.9. Maturity of the Loans and Reimbursement Obligations...........................21
Section 2.10. Optional Prepayments or Repayments of Loans..................................22
Section 2.11. Swing Line Loans; Settlements................................................22
SECTION 3. LETTERS OF CREDIT........................................................................24
Section 3.1. Letter of Credit Commitments..................................................24
Section 3.2. Reimbursement Obligation of the Borrower......................................25
Section 3.3. Obligations Absolute..........................................................25
Section 3.4. Reliance by the Issuing Banks.................................................26
Section 3.5. Notice Regarding Letters of Credit............................................26
Section 3.6. Letter of Credit Fee..........................................................26
SECTION 4. COMPETITIVE BID LOANS....................................................................26
Section 4.1. The Competitive Bid Option....................................................26
Section 4.2. Competitive Bid Loan Accounts; Competitive Bid Notes..........................26
Section 4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes..........27
Section 4.4. Alternative Manner of Procedure...............................................28
Section 4.5. Submission and Contents of Competitive Bid Quotes.............................29
Section 4.6. Notice to Borrower............................................................30
Section 4.7. Acceptance and Notice by Borrower and Administrative Agent....................30
Section 4.8. Allocation by Administrative Agent............................................31
Section 4.9. Funding of Competitive Bid Loans..............................................31
Section 4.10. Funding Losses...............................................................31
Section 4.11. Repayment of Competitive Bid Loans; Interest.................................31
SECTION 5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT...................................32
Section 5.1. Payments......................................................................32
Section 5.2. Mandatory Repayments of the Loans.............................................34
Section 5.3. Computations..................................................................34
Section 5.4. Illegality; Inability to Determine Eurodollar Rate............................35
Section 5.5. Additional Costs, Etc.........................................................35
Section 5.6. Capital Adequacy..............................................................36
Section 5.7. Certificate...................................................................37
</TABLE>
<PAGE> 3
-iii-
<TABLE>
<S> <C>
Section 5.8. Eurodollar and Competitive Bid Indemnity......................................37
Section 5.9. Interest on Overdue Amounts...................................................38
Section 5.10. Interest Limitation..........................................................38
Section 5.11. Reasonable Efforts to Mitigate...............................................38
Section 5.12. Replacement of Banks.........................................................38
Section 5.13. Advances by Administrative Agent.............................................39
SECTION 6. REPRESENTATIONS AND WARRANTIES...........................................................40
Section 6.1. Corporate Authority...........................................................40
Section 6.2. Governmental and Other Approvals..............................................41
Section 6.3. Title to Properties; Leases...................................................41
Section 6.4. Financial Statements; Solvency................................................41
Section 6.5. No Material Changes, Etc......................................................42
Section 6.6. Franchises, Patents, Copyrights, Etc..........................................42
Section 6.7. Litigation....................................................................42
Section 6.8. No Materially Adverse Contracts, Etc..........................................42
Section 6.9. Compliance With Other Instruments, Laws, Etc..................................42
Section 6.10. Tax Status...................................................................42
Section 6.11. No Event of Default..........................................................43
Section 6.12. Holding Company and Investment Company Acts..................................43
Section 6.13. Absence of Financing Statements, Etc.........................................43
Section 6.14. Employee Benefit Plans.......................................................43
Section 6.14.1. In General........................................................43
Section 6.14.2. Terminability of Welfare Plans....................................43
Section 6.14.3. Guaranteed Pension Plans..........................................44
Section 6.14.4. Multiemployer Plans...............................................44
Section 6.15. Environmental Compliance.....................................................44
Section 6.16. Disclosure...................................................................46
Section 6.17. Permits and Governmental Authority...........................................46
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER....................................................46
Section 7.1. Punctual Payment..............................................................46
Section 7.2. Maintenance of U.S. Office....................................................46
Section 7.3. Records and Accounts..........................................................46
Section 7.4. Financial Statements, Certificates and Information............................47
Section 7.5. Existence and Conduct of Business.............................................48
Section 7.6. Maintenance of Properties.....................................................48
Section 7.7. Insurance.....................................................................49
Section 7.8. Taxes.........................................................................49
Section 7.9. Inspection of Properties, Books and Contracts.................................49
Section 7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of
Material Licenses and Permits...............................................................50
Section 7.11. Environmental Indemnification................................................50
Section 7.12. Further Assurances...........................................................50
Section 7.13. Notice of Potential Claims or Litigation.....................................50
Section 7.14. Notice of Certain Events Concerning Insurance and Environmental Claims.......51
</TABLE>
<PAGE> 4
-iv-
<TABLE>
<S> <C>
Section 7.15. Notice of Default............................................................52
Section 7.16. Use of Proceeds..............................................................52
Section 7.17. Certain Transactions.........................................................52
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...............................................52
Section 8.1. Restrictions on Indebtedness..................................................52
Section 8.2. Restrictions on Liens.........................................................53
Section 8.3. Restrictions on Investments...................................................54
Section 8.4. Mergers, Consolidations, Sales................................................54
Section 8.5. Restricted Distributions and Redemptions......................................55
Section 8.6. Employee Benefit Plans........................................................55
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER......................................................56
Section 9.1. Interest Coverage Ratio.......................................................56
Section 9.2. Total Debt to EBITDA..........................................................56
Section 9.3. Minimum Net Worth.............................................................56
SECTION 10. CONDITIONS PRECEDENT....................................................................57
Section 10.1. Conditions To Effectiveness..................................................57
Section 10.1.1. Corporate Action..................................................57
Section 10.1.2. Loan Documents, Etc...............................................57
Section 10.1.3. Certificate of No Change..........................................57
Section 10.1.4. Incumbency Certificate............................................57
Section 10.1.5. Certificates of Insurance.........................................57
Section 10.1.6. Opinion of Counsel................................................57
Section 10.1.7. Satisfactory Financial Condition..................................57
Section 10.1.8. Payment of Closing Fees...........................................58
Section 10.1.9. Payoff of Existing Debt...........................................58
Section 10.1.10. Closing Certificate..............................................58
SECTION 11. CONDITIONS TO ALL LOANS.................................................................58
Section 11.1. Representations True.........................................................58
Section 11.2. Performance; No Event of Default.............................................58
Section 11.3. No Legal Impediment..........................................................59
Section 11.4. Governmental Regulation......................................................59
Section 11.5. Proceedings and Documents....................................................59
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT..............................59
Section 12.1. Events of Default and Acceleration...........................................59
Section 12.2. Termination of Commitments...................................................61
Section 12.3. Remedies.....................................................................62
SECTION 13. SETOFF..................................................................................62
SECTION 14. EXPENSES................................................................................62
SECTION 15. THE AGENTS..............................................................................63
Section 15.1. Appointment, Powers and Immunities...........................................63
Section 15.2. Actions By Administrative Agent..............................................63
Section 15.3. Indemnification..............................................................64
Section 15.4. Reimbursement................................................................64
Section 15.5. Documents....................................................................65
</TABLE>
<PAGE> 5
-v-
<TABLE>
<S> <C>
Section 15.6. Non-Reliance on Administrative Agent and Other Banks.........................65
Section 15.7. Resignation of Administrative Agent..........................................65
Section 15.8. Action by the Banks, Consents, Amendments, Waivers, Etc. ....................66
SECTION 16. INDEMNIFICATION.........................................................................67
SECTION 17. WITHHOLDING TAXES.......................................................................67
SECTION 18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION...........................................69
Section 18.1. Confidentiality..............................................................69
Section 18.2. Prior Notification...........................................................69
Section 18.3. Other........................................................................70
Section 19. SURVIVAL OF COVENANTS, ETC. ............................................................70
SECTION 20. ASSIGNMENT AND PARTICIPATION............................................................70
SECTION 21. PARTIES IN INTEREST.....................................................................71
SECTION 22. NOTICES, ETC. ..........................................................................72
SECTION 23. MISCELLANEOUS...........................................................................72
SECTION 24. CONSENTS, ETC. .........................................................................72
SECTION 25. WAIVER OF JURY TRIAL....................................................................73
SECTION 26. GOVERNING LAW; SUBMISSION TO JURISDICTION...............................................73
SECTION 27. SEVERABILITY............................................................................74
SECTION 28. GUARANTY................................................................................74
Section 28.1. Guaranty.....................................................................74
Section 28.2. Guaranty Absolute............................................................74
Section 28.3. Effectiveness; Enforcement...................................................75
Section 28.4. Waiver.......................................................................75
Section 28.5. Expenses.....................................................................76
Section 28.6. Concerning Joint and Several Liability of the Guarantor......................76
Section 28.7. Waiver.......................................................................78
Section 28.8. Subrogation; Subordination...................................................78
SECTION 29. PARI PASSU TREATMENT....................................................................78
SECTION 30. FINAL AGREEMENT.........................................................................79
</TABLE>
<PAGE> 6
-vi-
Exhibits
Exhibit A Form of Syndicated Note
Exhibit B Form of Swing Line Note
Exhibit C Form of Competitive Bid Note
Exhibit D Form of Syndicated Loan Request
Exhibit E Form of Letter of Credit Request
Exhibit F Form of Compliance Certificate
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quotes
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Notice of Acceptance/Rejection of
Competitive Bid Quote(s)
Exhibit L Form of Letter of Credit Application
Schedules
Schedule 1 Banks; Commitment Percentages
Schedule 1.1 Existing Liens
Schedule 3.1(a) Existing Letters of Credit
Schedule 6.7 Litigation
Schedule 6.15 Environmental Compliance
Schedule 8.1(e) Existing Indebtedness
<PAGE> 7
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the 29th day of June,
2001, by and among WASTE MANAGEMENT, INC., a Delaware corporation having its
chief executive office at 1001 Fannin Street, Suite 4000, Houston, Texas 77002
(the "Borrower"), WASTE MANAGEMENT HOLDINGS, INC., a wholly-owned Subsidiary of
the Borrower (the "Guarantor"), FLEET NATIONAL BANK, a national banking
association having a place of business at 100 Federal Street, Boston, MA 02110
("Fleet"), BANK OF AMERICA, N.A., a national banking association having a place
of business at 231 South LaSalle Street Chicago, IL 60697 ("BOA"), THE CHASE
MANHATTAN BANK, a national banking association having a place of business at 707
Travis Street, Houston, TX 77002 ("Chase"), DEUTSCHE BANK AG, NEW YORK BRANCH,
the duly licensed New York branch of a German corporation having its principal
place of business at 31 West 52nd Street, New York, NY 10019 ("Deutsche"), and
each of the other financial institutions party hereto (collectively, the
"Banks"), and Fleet as administrative agent (the "Administrative Agent"), J.P.
Morgan Securities Inc. ("JPMorgan") and Banc of America Securities LLC as joint
lead arrangers and joint book managers (the "Joint Lead Arrangers and Joint Book
Managers"), JPMorgan and BOA as co-syndication agents (the "Co-Syndication
Agents", and together with the Administrative Agent and the Joint Lead Arrangers
and Joint Book Managers, the "Agents"), and Deutsche and Citibank, N.A., as
co-documentation agent (the "Co-Documentation Agents").
WHEREAS, the Borrower has requested certain financing arrangements and
the Banks have agreed to provide such financing arrangements on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, this Agreement will take effect on the Effective Date, on the
following terms:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings
set forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Absolute Competitive Bid Loan(s). See Section 4.3(a).
Accountants. See Section 7.4(a).
Administrative Agent. See Preamble.
Affected Bank. See Section 5.12.
<PAGE> 8
-2-
Agents. See Preamble.
Agreement. This Revolving Credit Agreement, including the Schedules and
Exhibits hereto, as from time to time amended and supplemented in accordance
with the terms hereof.
Applicable Base Rate. The applicable rate per annum of interest on the
Base Rate Loans as set forth in the Pricing Table.
Applicable Eurodollar Rate. The applicable rate per annum of interest
on the Eurodollar Loans shall be as set forth in the Pricing Table.
Applicable Facility Rate. The applicable rate per annum with respect to
the Facility Fee shall be as set forth in the Pricing Table.
Applicable L/C Rate. The applicable rate per annum on the Maximum
Drawing Amount shall be as set forth in the Pricing Table.
Applicable Requirements. See Section 7.10.
Applicable Swing Line Rate. The annual rate of interest agreed upon
from time to time by the Administrative Agent and the Borrower with respect to
Swing Line Loans.
Assignment and Acceptance. See Section 20.
Balance Sheet Date. December 31, 2000.
Banks. See Preamble.
Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by the Administrative Agent at its Loan Office as
its "prime rate," such rate being a reference rate and not necessarily
representing the lowest or best rate being charged to any customer by the
Administrative Agent, or (b) one-half of one percent (1/2%) above the Overnight
Federal Funds Effective Rate, as published by the Board of Governors of the
Federal Reserve System, as in effect from time to time. Changes in the Base Rate
resulting from any changes in the Administrative Agent's "prime rate" shall take
place immediately without notice or demand of any kind on the effective day of
such change.
Base Rate Loans. Syndicated Loans bearing interest calculated by
reference to the Base Rate.
BOA. See Preamble.
Borrower. See Preamble.
Business Day. Any day, other than a Saturday, Sunday or any day on
which banking institutions in Boston, Massachusetts or New York, New York are
authorized by law to close, and, when used in connection with a Eurodollar Loan,
a Eurodollar Business Day.
<PAGE> 9
-3-
Capitalized Leases or Capital Leases. Leases under which the Borrower
or any of its Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with GAAP.
CERCLA. See Section 6.15(a).
Certified or certified. With respect to the financial statements of any
Person, such statements as audited by a firm of independent auditors, whose
report expresses the opinion, without qualification, that such financial
statements present fairly, in all material respects, the financial position of
such Person.
CFO or the CAO. See Section 7.4(b).
Chase. See Preamble.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Co-Documentation Agent(s). See Preamble.
Commitment. With respect to each Bank, such Bank's commitment to make
Syndicated Loans to, and to participate in the issuance, extension and renewal
of Letters of Credit for the account of, the Borrower, determined by multiplying
such Bank's Commitment Percentage by the Total Commitment.
Commitment Percentage. With respect to each Bank, the percentage
initially set forth next to such Bank's name on Schedule 1 hereto, as the same
may be adjusted in accordance with Section 20.
Competitive Bid Loan(s). A borrowing hereunder consisting of one or
more loans made by any of the participating Banks whose offer to make a
Competitive Bid Loan as part of such borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 4 hereof.
Competitive Bid Loan Accounts. See Section 4.2(a).
Competitive Bid Margin. See Section 4.5(b)(iv).
Competitive Bid Notes. See Section 4.2(b).
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid
Loan in accordance with Section 4.5 hereof.
Competitive Bid Quote Request. See Section 4.3.
Competitive Bid Rate. See Section 4.5(b)(v).
Compliance Certificate. See Section 7.4(c).
<PAGE> 10
-4-
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes, or EBIT. For any
period, the Consolidated Net Income (or Deficit) of the Borrower and its
Subsidiaries on a consolidated basis plus, without duplication, the sum of (1)
interest expense, (2) income taxes, (3) one-time charges related to expenses in
connection with Terminated Plans not to exceed $80,231,000 for the fiscal
quarter ending September 30, 2000, and not to exceed $28,102,000 for the fiscal
quarter ending December 31, 2000, (4) non-cash extraordinary non-recurring
writedowns or write-offs of assets, including non-cash losses on the sale of
assets outside the ordinary course of business, (5) non-recurring extraordinary
charges for settlement or judgment costs with respect to the shareholder
lawsuits and actions brought against the Borrower or the Guarantor related to,
arising or resulting from, the restatements of financial statements or results,
lowered expected earnings announcements occurring in 1998 and 1999, alleged
misrepresentations, misstatements or omissions contained in, or the adequacy of,
any disclosure documents filed with the Securities and Exchange Commission in
1998 and 1999, as further described in the Borrower's 2000 Annual Report on Form
10-K (collectively, the "Shareholder Suits"), and (6) EBIT of the businesses
acquired by the Borrower or any of its Subsidiaries (through asset purchases or
otherwise) (each an "Acquired Business") or the Subsidiaries acquired or formed
since the beginning of such period (each a "New Subsidiary") provided that (i)
the financial statements of such Acquired Businesses or New Subsidiaries have
been audited for the most recent fiscal year ended of such Acquired Businesses
or New Subsidiaries, or (ii) the Administrative Agent consents to such inclusion
after being furnished with other acceptable financial statements, and, in each
case, a Compliance Certificate and other reasonably appropriate documentation,
in form and substance reasonably satisfactory to the Administrative Agent, with
respect to the historical operating results and balance sheet of such Acquired
Businesses or New Subsidiaries (which information to the knowledge of the
officer executing such certificate is correct in all material respects) are
provided to the Administrative Agent, to the extent that each of items (1)
through (5) was deducted in determining Consolidated Net Income (or Deficit) in
the relevant period, minus non-cash extraordinary gains on the sale of assets
outside the ordinary course of business to the extent included in Consolidated
Net Income (or Deficit).
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense, and
(b) amortization expense to the extent the same would be included in the
calculation of Consolidated Net Income (or Deficit) for such period, determined
in accordance with GAAP.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries on a consolidated basis, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP.
Consolidated Net Worth. The sum of the par value of the capital stock
(excluding treasury stock), capital in excess of par or stated value of shares
of capital stock, retained earnings (minus accumulated deficit) and any other
account which, in accordance with GAAP, constitute stockholders' equity, of the
Borrower and its Subsidiaries determined on a consolidated
<PAGE> 11
-5-
basis, excluding the effect of any foreign currency transactions computed
pursuant to Financial Accounting Standards Board Statement No. 52, as amended,
supplemented or modified from time to time, or otherwise in accordance with
GAAP.
Consolidated Tangible Assets. Consolidated Total Assets less the sum
of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, customer lists, brand
names, copyrights, patents and licenses, and rights with respect to the
foregoing; plus
(b) all amounts representing any write-up in the book value of
any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
Consolidated Total Assets. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest expense required by GAAP to be paid or accrued during such
period on all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, including capitalized interest expense
for such period.
Co-Syndication Agent(s). See Preamble.
364 Day Facility. That certain 364 Day Loan Agreement dated as of June
29, 2001 by and among the Borrower, the Guarantor, Fleet, BOA, Chase, Deutsche
and the other banks party thereto, and Fleet as administrative agent thereunder,
Banc of America Securities LLC and JPMorgan as joint lead arrangers and joint
book managers thereunder, BOA and JPMorgan as co-syndication agents thereunder
and Deutsche and Citibank, N.A., as co-documentation agents thereunder, as
amended from time to time.
Defaulting Bank. See Section 5.12.
Defaults. See Section 12.1.
Deutsche. See Preamble.
Disclosure Documents. The Borrower's financial statements referred to
in Section 6.4 and filings made by the Borrower or the Guarantor with the
Securities and Exchange Commission that were publicly available prior to the
Effective Date which were provided to the Banks.
Disposal. See "Release".
Distribution. The declaration or payment of any dividend or other
return on equity on or in respect of any shares of any class of capital stock,
any partnership interests or any membership
<PAGE> 12
-6-
interests of any Person (other than dividends or other such returns payable
solely in shares of capital stock, partnership interests or membership units of
such Person, as the case may be); the purchase, redemption, or other retirement
of any shares of any class of capital stock, partnership interests or membership
units of such Person, directly or indirectly through a Subsidiary or otherwise;
the return of equity capital by any Person to its shareholders, partners or
members as such; or any other distribution on or in respect of any shares of any
class of capital stock, partnership interest or membership unit of such Person.
Dollars or US$ or $ or U.S. Dollars. Dollars in lawful currency of the
United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, or
any amount is paid by an Issuing Bank under a Letter of Credit.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
Effective Date. The date on which the conditions precedent set forth in
Section 10.1 hereof are satisfied.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.15(a).
EPA. See Section 6.15(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower or any of its Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event within the meaning of
Section 4043 of ERISA and the regulations promulgated thereunder with respect to
a Guaranteed Pension Plan as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Loan, the maximum rate (expressed as a decimal) at which the Administrative
Agent would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
<PAGE> 13
-7-
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Competitive Bid Loan(s). See Section 4.3(a).
Eurodollar Lending Office. Initially, the office of each Bank set forth
in the administrative materials provided to the Administrative Agent;
thereafter, upon notice to the Administrative Agent, such other office of such
Bank that shall be making or maintaining Eurodollar Loans.
Eurodollar Loans. Syndicated Loans bearing interest calculated by
reference to the Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Loan, (a) the rate of interest equal to the rate determined by the
Administrative Agent at which Dollar deposits for such Interest Period are
offered based on information presented on Telerate Page 3750 as of 11:00 a.m.
(London time) two (2) Eurodollar Business Days prior to the first day of such
Interest Period, or (b) if such rate is not shown at such place, the rate of
interest equal to (i) the rate per annum at which the Administrative Agent's
Eurodollar Lending Office is offered Dollar deposits at approximately 10:00 a.m.
(New York time) two (2) Eurodollar Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
operations of such Eurodollar Lending Office are customarily conducted, for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Loan of the Administrative Agent to which such Interest Period applies, divided
by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
Events of Default. See Section 12.1.
Facility Fee. See Section 2.2.
Financial Affiliate. A subsidiary of the bank holding company
controlling any Bank, which subsidiary is engaging in any of the activities
permitted by Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
Section 1843).
Fleet. See Preamble.
generally accepted accounting principles or GAAP. (i) When used in
Section 9, whether directly or indirectly through reference to a capitalized
term used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the
<PAGE> 14
-8-
Borrower adopting the same principles, provided that in each case referred to in
this definition of "generally accepted accounting principles" a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than a qualification
regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Guaranteed Obligations. See Section 28.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
its Subsidiaries or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantor. See Preamble.
Guaranty. Any obligation, contingent or otherwise, of a Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation, or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business.
Hazardous Substances. See Section 6.15(b).
Indebtedness. Collectively, without duplication, whether classified as
Indebtedness, an Investment or otherwise on the obligor's balance sheet, (a) all
indebtedness for borrowed money, (b) all obligations for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business which either (i) are not overdue by more than ninety
(90) days, or (ii) are being disputed in good faith and for which adequate
reserves have been established in accordance with GAAP), (c) all obligations
evidenced by notes, bonds, debentures or other similar debt instruments, (d) all
obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations, liabilities and indebtedness under Capitalized Leases, (f) all
obligations, liabilities or indebtedness (contingent or otherwise) under surety,
performance bonds, or any other bonding arrangement, (g) Guaranties with respect
to all Indebtedness of others referred to in clauses (a) through (f) above, and
(h) all Indebtedness of others referred to in clauses (a) through (f) above
secured or supported by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured or
<PAGE> 15
-9-
supported by) any Lien on the property or assets of the Borrower or any
Subsidiary, even though the owner of the property has not assumed or become
liable, contractually or otherwise, for the payment of such Indebtedness;
provided that if a Permitted Receivables Transaction is outstanding and is
accounted for as a sale of accounts receivable under generally accepted
accounting principles, Indebtedness shall also include the additional
Indebtedness, determined on a consolidated basis, which would have been
outstanding had such Permitted Receivables Transaction been accounted for as a
borrowing.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in accordance with
this Agreement (i) for any Base Rate Loan or Swing Line Loan, the first day of
the month; (ii) for any Eurodollar Loan, 1, 2, 3, or 6 months; (iii) for any
Absolute Competitive Bid Loan, from 7 through 180 days; and (iv) for any
Eurodollar Competitive Bid Loan, 1, 2, 3, 4, 5, or 6 months; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in accordance with this Agreement or if
such period has no numerically corresponding day, on the last Business Day of
such period; provided that any Interest Period which would otherwise end on a
day which is not a Business Day shall be deemed to end on the next succeeding
Business Day; provided further that for any Interest Period for any Eurodollar
Loan or Eurodollar Competitive Bid Loan, if such next succeeding Business Day
falls in the next succeeding calendar month, such Interest Period shall be
deemed to end on the next preceding Business Day; and provided further that no
Interest Period shall extend beyond the Maturity Date.
Interim Balance Sheet Date. March 31, 2001.
Investments. All expenditures made by a Person and all liabilities
incurred (contingently or otherwise) by a Person for the acquisition of stock
(other than the stock of Subsidiaries), or Indebtedness of, or for loans,
advances, capital contributions or transfers of property to, or in respect of
any Guaranties or other commitments as described under Indebtedness, or
obligations of, any other Person, including without limitation, the funding of
any captive insurance company (other than loans, advances, capital contributions
or transfers of property to any Subsidiaries or Guaranties with respect to
Indebtedness of any Subsidiary, limited to such Person's pro rata equity
interest in such Subsidiary). In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
by a Guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
<PAGE> 16
-10-
Issuance Fee. See Section 3.6.
Issuing Banks. The Bank(s) issuing Letters of Credit, which shall be
(a) Morgan Guaranty Trust Company, Chase, BOA, Fleet, Bank One, N.A., BNP
Paribas, Wachovia Bank, N.A. and Westdeutsche Landesbank Girozentrale, New York
Branch and (b) such other Banks as agreed to by the Borrower and the
Administrative Agent.
Joint Lead Arrangers and Joint Book Managers. See Preamble.
JPMorgan. See Preamble.
Letter of Credit Applications. Letter of credit applications in the
form attached hereto as Exhibit L, unless otherwise agreed upon by the Borrower
and the Issuing Bank from time to time which are entered into pursuant to
Section 3 hereof, as such Letter of Credit Applications are amended, varied or
supplemented from time to time; provided, however, in the event of any conflict
or inconsistency between the terms of any Letter of Credit Application and this
Agreement, the terms of this Agreement shall control.
Letter of Credit Fee. See Section 3.6.
Letter of Credit Participation. See Section 3.1(b).
Letter of Credit Request. See Section 11.5.
Letters of Credit. Letters of credit issued or to be issued by the
Issuing Banks under Section 3 hereof for the account of the Borrower.
Lien. With respect to any asset, (a) any mortgage, deed of trust, lien
(statutory or otherwise), pledge, hypothecation, encumbrance, charge, security
interest, assignment, deposit arrangement or other restriction in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
Loan Documents. This Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and any documents, instruments or agreements
executed in connection with any of the foregoing, each as amended, modified,
supplemented, or replaced from time to time.
Loan Office. The Administrative Agent's office located in Boston,
Massachusetts, or at such other location as the Administrative Agent may
designate from time to time.
Loans. Collectively, the Syndicated Loans, the Swing Line Loans and the
Competitive Bid Loans.
Majority Banks. The Banks with greater than fifty percent (50%) of the
Total Commitment; provided that in the event that the Total Commitment has been
terminated, the
<PAGE> 17
-11-
Majority Banks shall be the Banks holding greater than fifty percent (50%) of
the aggregate outstanding principal amount of the Obligations on such date.
Material Adverse Effect. A material adverse effect on (a) the business,
assets, operations, or financial condition of the Borrower and the Subsidiaries
taken as a whole, (b) the ability of the Borrower or the Guarantor to perform
any of its obligations under any Loan Document to which it is a party, or (c)
the rights of, or remedies or benefits available to, the Administrative Agent or
any Bank under any Loan Document.
Material Subsidiary. Any Subsidiary which, at the time such
determination is made, has assets, revenues, or liabilities of at least
$20,000,000 or more.
Maturity Date. June 29, 2006.
Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit.
Moody's. Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, any of its
Subsidiaries, or any ERISA Affiliate.
New Lending Office. See Section 5.1(d).
Non-U.S. Bank. See Section 5.1(c).
Notes. Collectively, the Competitive Bid Notes, the Syndicated Notes,
and the Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Administrative Agent arising or incurred
under this Agreement or any of the other Loan Documents or in respect of any of
the Loans made or Reimbursement Obligations incurred or the Letters of Credit,
the Notes, or any other instrument at any time evidencing any thereof,
individually or collectively, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise.
Overnight Federal Funds Effective Rate. The overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time, or if such rate is not published, the
average of the quotations at approximately 11:00 a.m. New York time for the day
of such transaction(s), received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Any of the following Liens:
<PAGE> 18
-12-
(a) Liens for taxes not yet due or that are being contested in
compliance with Section 7.8;
(b) carriers', warehousemen's, maritime, mechanics, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business that
are being contested in good faith by appropriate proceedings and for which
adequate reserves with respect thereto have been set aside as required by GAAP;
(c) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(d) Liens to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Leases), statutory
obligations, surety and appeal bonds, suretyship, performance and landfill
closure bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) zoning restrictions, easements, rights-of-way, restrictions on use
of property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(f) the Liens on Schedule 1.1 hereto securing the obligations listed on
such Schedule and any replacement Lien securing any renewal, extension or
refunding of such obligations if the amount secured by such renewal, extension
or refunding Lien shall not exceed the amount of the outstanding obligations
secured by the Lien being replaced at the time of such renewal, extension or
refunding (plus transaction costs, including premiums and fees, related to such
renewal, extension or refunding) and if such replacement Lien shall be limited
to the substantially the same property that secured the Lien so replaced;
(g) legal or equitable encumbrances deemed to exist by reason of the
existence of any litigation or other legal proceeding or arising out of a
judgment or award with respect to which an appeal is being prosecuted in good
faith by appropriate action and with respect to which adequate reserves are
being maintained and, in the case of judgment liens, execution thereon is
stayed;
(h) rights reserved or vested in any municipality or governmental,
statutory or public authority to control or regulate any property of the
Borrower or any Subsidiary, or to use such property in a manner that does not
materially impair the use of such property for the purposes for which it is held
by the Borrower or such Subsidiary;
(i) any obligations or duties affecting the property of the Borrower or
any of its Subsidiaries to any municipality, governmental, statutory or public
authority with respect to any franchise, grant, license or permit;
(j) Liens filed in connection with sales of receivables by any of the
Subsidiaries (other than the Guarantor) to a wholly-owned special purpose
financing Subsidiary for purposes of perfecting such sales, provided that no
third party has any rights with respect to such Liens or any assets subject
thereto;
<PAGE> 19
-13-
(k) any interest or title of a lessor under any sale lease-back
transaction entered into by the Borrower or any Subsidiary conveying only the
assets so leased back to the extent the related Indebtedness is permitted under
Section 8.1 hereof;
(l) Liens created or deemed to be created under Permitted Receivables
Transactions at any time provided such Liens do not extend to any property or
assets other than the trade receivables sold pursuant to such Permitted
Receivables Transactions, interests in the goods or products (including returned
goods and products), if any, relating to the sales giving rise to such trade
receivables; any security interests or other Liens and property subject thereto
(other than on any leases or related lease payment rights or receivables between
the Borrower and any of its Subsidiaries, as lessors or sublessors) from time to
time purporting to secure the payment by the obligors of such trade receivables
(together with any financing statements signed by such obligors describing the
collateral securing such trade receivables) pursuant to such Permitted
Receivables Transactions; and
(m) Liens securing other Indebtedness permitted under Sections 8.1(d)
and (e);
provided that the aggregate amount of all Indebtedness and liabilities
secured by all Liens permitted in subsections (k), (l) and (m) shall not exceed
15% of Consolidated Tangible Assets at any time.
Permitted Receivables Transaction. Any sale or sales of, and/or
securitization of, any accounts receivable of the Borrower and/or any of its
Subsidiaries (the "Receivables") pursuant to which (a) the Borrower and its
Subsidiaries realize aggregate net proceeds of not more than $750,000,000 at any
one time outstanding, including, without limitation, any revolving purchase(s)
of Receivables where the maximum aggregate uncollected purchase price (exclusive
of any deferred purchase price) for such Receivables at any time outstanding
does not exceed $750,000,000, and (b) which Receivables shall not be discounted
more than 25%.
Person. Any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or political
subdivision thereof.
<PAGE> 20
-14-
Pricing Table:
<TABLE>
<CAPTION>
APPLICABLE
SENIOR PUBLIC APPLICABLE APPLICABLE APPLICABLE EURODOLLAR
LEVEL DEBT RATING FACILITY RATE L/C RATE BASE RATE RATE
----- ---------------------------- ------------- ---------- ---------- --------------------
<S> <C> <C> <C> <C> <C>
1 Greater than or equal to 0.1250% 0.6250% Base Rate Eurodollar Rate plus
BBB+ by Standard & Poor's or per annum per annum 0.6250%
greater than or equal to per annum
Baa1 by Moody's
2 BBB by Standard & Poor's or 0.1500% 0.8500% Base Rate Eurodollar Rate plus
Baa2 by Moody's per annum per annum 0.8500%
per annum
3 BBB- by Standard & Poor's or 0.2250% 0.9000% Base Rate Eurodollar Rate plus
Baa3 by Moody's per annum per annum 0.9000%
per annum
4 BB+ by Standard & Poor's or 0.3000% 1.2000% Base Rate Eurodollar Rate plus
Ba1 by Moody's per annum per annum 1.2000%
per annum
5 Less than or equal to BB by 0.3500% 1.4000% Base Rate Eurodollar Rate plus
Standard & Poor's or less per annum per annum plus 0.1500% 1.4000%
than or equal to Ba2 by per annum per annum
Moody's
</TABLE>
The applicable rates charged for any day shall be determined by the higher
Senior Public Debt Rating in effect as of that day, provided that if the higher
Senior Public Debt Rating is more than one level higher than the lower Senior
Public Debt Rating, the applicable rate shall be set at one level above the
lower Senior Public Debt Rating.
RCRA. See Section 6.15(a).
Real Property. All real property heretofore, now, or hereafter owned,
operated, or leased by the Borrower or any of its Subsidiaries.
Reimbursement Obligation. The Borrower's obligation to reimburse the
applicable Issuing Bank and the Banks on account of any drawing under any Letter
of Credit, all as provided in Section 3.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall
have the meaning specified in the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Sections 6901 et seq. ("RCRA") and regulations
<PAGE> 21
-15-
promulgated thereunder; provided, that in the event either CERCLA or RCRA is
amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply as of the effective date of such amendment and provided
further, to the extent that the laws of Canada or a state, province, territory
or other political subdivision thereof wherein the property lies establish a
meaning for "Release" or "Disposal" which is broader than specified in either
CERCLA, or RCRA, such broader meaning shall apply to the Borrower's or any of
its Subsidiaries' activities in that state, province, territory or political
subdivision.
Replacement Bank. See Section 5.12.
Replacement Notice. See Section 5.12.
Senior Public Debt Rating. The ratings of the Borrower's public
unsecured long-term senior debt, without third party credit enhancement, issued
by Moody's and Standard & Poor's.
Shareholder Suits. See the definition of "Consolidated Earnings Before
Interest and Taxes, or EBIT".
Standard & Poor's. Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the
outstanding capital stock or other interest entitled to vote generally and whose
financial results are required to be consolidated with the financial results of
the designated parent in accordance with GAAP.
Swap Contracts. All obligations in respect of interest rate, currency
or commodity exchange, forward, swap, or futures contracts or similar
transactions or arrangements entered into to protect or hedge the Borrower and
its Subsidiaries against interest rate, exchange rate or commodity price risks
or exposure, or to lower or diversify their funding costs.
Swap Obligations. The maximum amount of any termination or loss payment
required to be paid by the Borrower or any Subsidiary with respect to any Swap
Contract if such Swap Contract were, at the time of determination, to be
terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, provided that, solely with respect to Swap Contracts which are
either (a) entered into between the Borrower or any of its Subsidiaries with an
investment grade company, or (b) entered into between the Borrower or any of its
Subsidiaries with third parties whose obligations thereunder are secured, such
maximum amount of termination or loss payment shall be net of any termination or
loss payment required to be paid to the Borrower or any Subsidiary by such
counterparty (other than the Borrower or another Subsidiary) with respect to any
Swap Contract if such Swap Contract were, at the time of determination, to be
terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred.
Swing Line Loans. See Section 2.11(a).
<PAGE> 22
-16-
Swing Line Note. See Section 2.11(a).
Swing Line Settlement. The making or receiving of payments, in
immediately available funds, by the Banks to or from the Administrative Agent in
accordance with Section 2.11 hereof to the extent necessary to cause each Bank's
actual share of the outstanding amount of the Syndicated Loans to be equal to
such Bank's Commitment Percentage of the outstanding amount of such Syndicated
Loans, in any case when, prior to such action, the actual share is not so equal.
Swing Line Settlement Amount. See Section 2.11(b).
Swing Line Settlement Date. See Section 2.11(b).
Swing Line Settling Bank. See Section 2.11(b).
Syndicated Loan Request. See Section 2.6(a).
Syndicated Loans. A borrowing hereunder consisting of one or more loans
made by the Banks to the Borrower under the procedure described in Section
2.1(a) and Section 2.11 hereof.
Syndicated Notes. See Section 2.4(a).
Terminated Plans. The Waste Management, Inc. Pension Plan and The Waste
Management of Alameda County, Inc. Retirement Plan.
Total Commitment. Up to $1,750,000,000, as such amount may be reduced
pursuant to Section 2.3 hereof, or, if such Total Commitment has been terminated
pursuant to Section 2.3 or Section 12.2 hereof, zero.
Total Debt. The sum, without duplication, of all (1) Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis under subsections (a)
through (h) of the definition of "Indebtedness" (provided, however, that
Indebtedness (A) under subsection (f) of the definition of "Indebtedness" shall
be included in such calculation only to the extent that a surety has been called
upon to make payment on a bond, and (B) with respect to Permitted Receivables
Transactions shall not be included in such calculation), plus (2) Swap
Obligations, plus (3) non-contingent reimbursement obligations of the Borrower
and its Subsidiaries with respect to drawings under any letters of credit.
SECTION 1.2. RULES OF INTERPRETATION.
(a) Unless otherwise noted, a reference to any document or
agreement (including this Agreement) shall include such document or
agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
<PAGE> 23
-17-
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the
meanings assigned to them therein.
(h) Reference to a particular "Section" refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
SECTION 2. THE LOAN FACILITIES.
SECTION 2.1. COMMITMENT TO LEND.
(a) Subject to the terms and conditions set forth in this
Agreement, each of the Banks severally agrees to lend to the Borrower
and the Borrower may borrow, repay, and reborrow from time to time
between the Effective Date and the Maturity Date, upon notice by the
Borrower to the Administrative Agent given in accordance with this
Section 2, its Commitment Percentage of the Syndicated Loans as are
requested by the Borrower; provided that the sum of the outstanding
principal amount of the Syndicated Loans (including the Swing Line
Loans) and the Maximum Drawing Amount of outstanding Letters of Credit
shall not exceed the Total Commitment minus the aggregate amount of
Competitive Bid Loans outstanding at such time.
(b) On the date of each request for a Loan or Letter of Credit
hereunder, the Borrower shall be deemed to have made a representation
and warranty that the conditions set forth in Section 10 and Section
11, as the case may be, have been satisfied on the date of such
request. Any unpaid Reimbursement Obligation shall be a Base Rate Loan,
as set forth in Section 3.2(a).
SECTION 2.2. FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of the Banks a fee (the "Facility Fee") on
the Total Commitment equal to the Applicable
<PAGE> 24
-18-
Facility Rate multiplied by the Total Commitment. The Facility Fee shall be
payable for the period from and after the Effective Date quarterly in arrears on
the first day of each calendar quarter for the immediately preceding calendar
quarter with the first such payment commencing on October 1, 2001 and with a
final payment on the Maturity Date (or on the date of termination in full of the
Total Commitment, if earlier). The Facility Fee shall be distributed pro rata
among the Banks in accordance with each Bank's Commitment Percentage.
SECTION 2.3. REDUCTION OF TOTAL COMMITMENT.
(a) The Borrower shall have the right at any time and from
time to time upon three (3) Business Days' prior written notice to the
Administrative Agent to reduce by $25,000,000 or a greater amount or
terminate entirely, the Total Commitment, whereupon each Bank's
Commitment shall be reduced pro rata in accordance with such Bank's
Commitment Percentage of the amount specified in such notice or, as the
case may be, terminated provided that at no time may (i) the Total
Commitment be reduced to an amount less than the sum of (A) the Maximum
Drawing Amount of all Letters of Credit, and (B) all Loans then
outstanding.
(b) No reduction or termination of the Total Commitment once
made may be revoked; the portion of the Total Commitment reduced or
terminated may not be reinstated; and amounts in respect of such
reduced or terminated portion may not be reborrowed.
(c) The Administrative Agent will notify the Banks promptly
after receiving any notice delivered by the Borrower pursuant to this
Section 2.3 and will distribute to each Bank a revised Schedule 1 to
this Agreement.
SECTION 2.4. THE SYNDICATED NOTES.
(a) The Syndicated Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A
hereto (each, a "Syndicated Note"), dated as of the Effective Date (or
such later date at which a Bank becomes a party hereto pursuant to
Section 20) and completed with appropriate insertions. One Syndicated
Note shall be payable to the order of each Bank in an amount equal to
its maximum Commitment, and shall represent the obligation of the
Borrower to pay such Bank such principal amount or, if less, the
outstanding principal amount of all Syndicated Loans made by such Bank,
plus interest accrued thereon, as set forth herein.
(b) The Borrower irrevocably authorizes each Bank to make, or
cause to be made, in connection with a Drawdown Date of any Syndicated
Loan and at the time of receipt of any payment of principal on its
Syndicated Note, an appropriate notation on such Bank's records or on
the schedule attached to such Bank's Syndicated Note or a continuation
of such schedule attached thereto reflecting the making of such Loan,
or the
<PAGE> 25
-19-
receipt of such payment (as the case may be) and each Bank may, prior
to any transfer of its Syndicated Note endorse on the reverse side
thereof the outstanding principal amount of such Loans evidenced
thereby. The outstanding amount of the Loans set forth on such Bank's
records shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error
in so recording, any such amount shall not limit or otherwise affect
the obligations of the Borrower hereunder or under such Notes to make
payments of principal of or interest on any such Notes when due.
SECTION 2.5. INTEREST ON LOANS.
(a) The outstanding principal amount of the Syndicated Loans
shall bear interest at the rate per annum equal to (i) the Applicable
Base Rate on Base Rate Loans, (ii) the Applicable Eurodollar Rate on
Eurodollar Loans and (iii) the Applicable Swing Line Rate on Swing Line
Loans.
(b) Interest shall be payable (i) quarterly in arrears on the
first Business Day of each quarter, with the first such payment
commencing October 1, 2001, on Base Rate Loans, (ii) on the last day of
the applicable Interest Period, and if such Interest Period is longer
than three months, also on the last day of each three month period
following the commencement of such Interest Period, on Eurodollar
Loans, and (iii) on the Maturity Date for all Loans.
SECTION 2.6. REQUESTS FOR SYNDICATED LOANS.
(a) The Borrower shall give to the Administrative Agent written notice
in the form of Exhibit D hereto (or telephonic notice confirmed in writing or a
facsimile in the form of Exhibit D hereto) of each Syndicated Loan requested
hereunder (a "Syndicated Loan Request") not later than (a) 11:00 a.m. (New York
time) on the proposed Drawdown Date of any Base Rate Loan, or (b) 11:00 a.m.
(New York time) three (3) Eurodollar Business Days prior to the proposed
Drawdown Date of any Eurodollar Loan. Each such Syndicated Loan Request shall
specify (A) the principal amount of the Syndicated Loan requested, (B) the
proposed Drawdown Date of such Syndicated Loan, (C) whether such Syndicated Loan
requested is to be a Base Rate Loan or a Eurodollar Loan, and (D) the Interest
Period for such Syndicated Loan, if a Eurodollar Loan. Each Syndicated Loan
requested shall be in a minimum amount of $10,000,000. Each such Syndicated Loan
Request shall reflect the Maximum Drawing Amount of all Letters of Credit
outstanding and the amount of all Loans outstanding (including Competitive Bid
Loans and Swing Line Loans). Syndicated Loan Requests made hereunder shall be
irrevocable and binding on the Borrower, and shall obligate the Borrower to
accept the Syndicated Loan requested from the Banks on the proposed Drawdown
Date.
<PAGE> 26
-20-
(b) Each of the representations and warranties made by the Borrower to
the Banks or the Administrative Agent in this Agreement or any other Loan
Document shall be true and correct in all material respects when made and shall,
for all purposes of this Agreement, be deemed to be repeated by the Borrower on
and as of the date of the submission of a Syndicated Loan Request, Competitive
Bid Quote Request, or Letter of Credit Application and on and as of the Drawdown
Date of any Loan or the date of issuance of any Letter of Credit (except to the
extent (i) of changes resulting from transactions contemplated or permitted by
this Agreement and the other Loan Documents, (ii) of changes occurring in the
ordinary course of business that either individually or in the aggregate do not
result in a Material Adverse Effect, or (iii) that such representations and
warranties expressly relate only to an earlier date).
(c) The Administrative Agent shall promptly notify each Bank of each
Syndicated Loan Request received by the Administrative Agent (i) on the proposed
Drawdown Date of any Base Rate Loan, or (ii) three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Loan.
SECTION 2.7. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrower's option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrower may (i)
elect to convert any Base Rate Loan or a portion thereof to a
Eurodollar Loan, (ii) at the time of any Syndicated Loan Request,
specify that such requested Loan shall be a Eurodollar Loan, or (iii)
upon expiration of the applicable Interest Period, elect to maintain an
existing Eurodollar Loan as such, provided that the Borrower give
notice to the Administrative Agent pursuant to Section 2.7(b) hereof.
Upon determining any Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrower and the Banks, and
each such notice to the Borrower shall be considered prima facie
correct and binding, absent manifest error.
(b) Three (3) Eurodollar Business Days prior to the making of
any Eurodollar Loan or the conversion of any Base Rate Loan to a
Eurodollar Loan, or, in the case of an outstanding Eurodollar Loan, the
expiration date of the applicable Interest Period, the Borrower shall
give written, telex or facsimile notice (or telephonic notice promptly
confirmed in a writing or a facsimile) received by the Administrative
Agent not later than 11:00 a.m. (New York time) of its election
pursuant to Section 2.7(a). Each such notice delivered to the
Administrative Agent shall specify the aggregate principal amount of
the Syndicated Loans to be borrowed or maintained as or converted to
Eurodollar Loans and the requested duration of the Interest Period that
will be applicable to such Eurodollar Loan, and shall be irrevocable
and binding upon the Borrower. If the Borrower shall fail to give the
Administrative Agent notice of its election hereunder together with all
of the other information required by this Section 2.7(b) with respect
to any Syndicated Loan, whether at the end of an Interest Period or
otherwise, such Syndicated Loan shall be deemed a Base Rate Loan. The
Administrative Agent shall promptly notify the Banks in writing (or by
telephone confirmed in writing or by facsimile) of such election.
<PAGE> 27
-21-
(c) Notwithstanding anything herein to the contrary, the
Borrower may not specify an Interest Period that would extend beyond
the Maturity Date.
(d) No conversion of Loans pursuant to this Section 2.7 may
result in Eurodollar Loans that are less than $5,000,000. In no event
shall the Borrower have more than ten (10) different Interest Periods
for borrowings of Eurodollar Loans outstanding at any time.
(e) Subject to the terms and conditions of Section 5.8 hereof,
if any Affected Bank demands compensation under Section 5.5(c) or (d)
with respect to any Eurodollar Loan, the Borrower may at any time, upon
at least three (3) Business Days' prior written notice to the
applicable Administrative Agent, elect to convert such Eurodollar Loan
into a Base Rate Loan (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other
Banks). Thereafter, and until such time as the Affected Bank notifies
the Administrative Agent that the circumstances giving rise to the
demand for compensation under Section 5.5(c) or (d) no longer exist,
all requests for Eurodollar Loans from such Affected Bank shall be
deemed to be requests for Base Rate Loans. Once the Affected Bank
notifies the Administrative Agent that such circumstances no longer
exist, the Borrower may elect that the principal amount of each such
Loan converted hereunder shall again bear interest as Eurodollar Loans
beginning on the first day of the next succeeding Interest Period
applicable to the related Eurodollar Loans of the other Banks.
SECTION 2.8. FUNDS FOR SYNDICATED LOANS. Not later than 1:00 p.m. (New
York time) on the proposed Drawdown Date of Syndicated Loans, each of the Banks
will make available to the Administrative Agent at its Loan Office, in
immediately available funds, the amount of its Commitment Percentage of the
amount of the requested Loan. Upon receipt from each Bank of such amount, and
upon receipt of the documents required by Section 10 and Section 11 and the
satisfaction of the other conditions set forth therein, the Administrative Agent
will make available to the Borrower the aggregate amount of such Syndicated
Loans made available by the Banks. The failure or refusal of any Bank to make
available to the Administrative Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested
Syndicated Loan shall not relieve any other Bank from its several obligations
hereunder to make available to the Administrative Agent the amount of such
Bank's Commitment Percentage of the requested Loan.
SECTION 2.9. MATURITY OF THE LOANS AND REIMBURSEMENT OBLIGATIONS. The
Borrower promises to pay on the Maturity Date, and there shall become absolutely
due and payable on the Maturity Date, all of the Loans and unpaid Reimbursement
Obligations outstanding on such date, together with any and all accrued and
unpaid interest thereon and any fees and other amounts owing hereunder.
<PAGE> 28
-22-
SECTION 2.10. OPTIONAL PREPAYMENTS OR REPAYMENTS OF LOANS. Subject to
the terms and conditions of Section 5.8, the Borrower shall have the right, at
its election, to repay or prepay the outstanding amount of the Loans, as a whole
or in part, at any time without penalty or premium. The Borrower shall give the
Administrative Agent no later than 11:00 a.m. (New York time) (a) on the
proposed date of prepayment or repayment of Base Rate Loans, and (b) three (3)
Eurodollar Business Day prior to the proposed date of prepayment or repayment of
all other Loans, written notice (or telephonic notice confirmed in writing or by
facsimile) of any proposed prepayment or repayment pursuant to this Section
2.10, specifying the proposed date of prepayment or repayment of Loans and the
principal amount to be paid. Notwithstanding the foregoing, the Borrower may not
prepay any Competitive Bid Loans without the consent of the applicable Bank. The
Administrative Agent shall promptly notify each Bank by written notice (or
telephonic notice confirmed in writing or by facsimile) of such notice of
payment.
SECTION 2.11. SWING LINE LOANS; SETTLEMENTS.
(a) Notwithstanding the notice and minimum amount requirements
set forth in Section 2.6 but otherwise in accordance with the terms and
conditions of this Agreement, and solely for ease of administration of
the Syndicated Loans, the Administrative Agent may, but shall not be
required to, fund Base Rate Loans made in accordance with the
provisions of this Agreement ("Swing Line Loans"). The Swing Line Loans
shall be evidenced by a promissory note of the Borrower in
substantially the form of Exhibit B hereto (the "Swing Line Note") and,
at the discretion of the Administrative Agent may be in amounts less
than $10,000,000 provided that the outstanding amount of Swing Line
Loans advanced by the Administrative Agent hereunder shall not exceed
$10,000,000 at any time. Each Bank shall remain severally and
unconditionally liable to fund its pro rata share (based upon each
Bank's Commitment Percentage) of such Swing Line Loans on each Swing
Line Settlement Date and, in the event the Administrative Agent chooses
not to fund all Base Rate Loans requested on any date, to fund its
Commitment Percentage of the Base Rate Loans requested, subject to
satisfaction of the provisions hereof relating to the making of Base
Rate Loans. Prior to each Swing Line Settlement, all payments or
repayments of the principal of, and interest on, Swing Line Loans shall
be credited to the account of the Administrative Agent.
(b) The Banks shall effect Swing Line Settlements on (i) the
Business Day immediately following any day which the Administrative
Agent gives written notice to effect a Swing Line Settlement, (ii) the
Business Day immediately following the Administrative Agent's becoming
aware of the existence of any Default or Event of Default and (iii) the
Maturity Date (each such date, a "Swing Line Settlement Date"). One (1)
Business Day prior to each such Swing Line Settlement Date, the
Administrative Agent shall give telephonic notice to the Banks of (A)
the respective outstanding amount of Syndicated Loans made by each Bank
as at the close of business on the prior day, (B) the amount that any
Bank, as applicable (a "Swing Line Settling Bank"), shall pay to
<PAGE> 29
-23-
effect a Swing Line Settlement (a "Swing Line Settlement Amount") and
(C) the portion (if any) of the aggregate Swing Line Settlement Amount
to be paid to each Bank. A statement of the Administrative Agent
submitted to the Banks with respect to any amounts owing hereunder
shall be prima facie evidence of the amount due and owing. Each Swing
Line Settling Bank shall, not later than 1:00 p.m. (New York time) on
each Swing Line Settlement Date, effect a wire transfer of immediately
available funds to the Administrative Agent at its Loan Office in the
amount of such Bank's Swing Line Settlement Amount. The Administrative
Agent shall, as promptly as practicable during normal business hours on
each Swing Line Settlement Date, effect a wire transfer of immediately
available funds to each Bank of the Swing Line Settlement Amount to be
paid to such Bank. All funds advanced by any Bank as a Swing Line
Settling Bank pursuant to this Section 2.11(b) shall for all purposes
be treated as a Base Rate Loan made by such Swing Line Settling Bank to
the Borrower, and all funds received by any Bank pursuant to this
Section 2.11(b) shall for all purposes be treated as repayment of
amounts owed by the Borrower with respect to Base Rate Loans made by
such Bank.
(c) The Administrative Agent may (unless notified to the
contrary by any Swing Line Settling Bank by 12:00 noon (New York time)
one (1) Business Day prior to the Settlement Date) assume that each
Swing Line Settling Bank has made available (or will make available by
the time specified in Section 2.11(b)) to the Administrative Agent its
Swing Line Settlement Amount, and the Administrative Agent may (but
shall not be required to), in reliance upon such assumption, make
available to each applicable Bank its share (if any) of the aggregate
Swing Line Settlement Amount. If the Swing Line Settlement Amount of
such Swing Line Settling Bank is made available to the Administrative
Agent by such Swing Line Settling Bank on a date after such Swing Line
Settlement Date, such Swing Line Settling Bank shall pay the
Administrative Agent on demand an amount equal to the product of (i)
the average, computed for the period referred to in clause (iii) below,
of the weighted average annual interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during
each day included in such period times (ii) such Swing Line Settlement
Amount times (iii) a fraction, the numerator of which is the number of
days that elapse from and including such Swing Line Settlement Date to
but not including the date on which such Swing Line Settlement Amount
shall become immediately available to the Administrative Agent, and the
denominator of which is 365. Upon payment of such amount such Swing
Line Settling Bank shall be deemed to have delivered its Swing Line
Settlement Amount on the Swing Line Settlement Date and shall become
entitled to interest payable by the Borrower with respect to such Swing
Line Settling Bank's Swing Line Settlement Amount as if such share were
delivered on the Swing Line Settlement Date. If such Swing Line
Settlement Amount is not in fact made available to the Administrative
Agent by such Swing Line Settling Bank within three (3) Business Days
of such Swing Line Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower, with interest
thereon at the Applicable Base Rate.
(d) After any Swing Line Settlement Date, any payment by the
Borrower of Swing Line Loans hereunder shall be allocated among the
Banks, in amounts determined so as to provide that after such
application and the related Swing Line Settlement, the
<PAGE> 30
-24-
outstanding amount of Syndicated Loans of each Bank equals, as nearly
as practicable, such Bank's Commitment Percentage of the aggregate
amount of Syndicated Loans.
SECTION 3. LETTERS OF CREDIT.
SECTION 3.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the receipt
of a Letter of Credit Application by an Issuing Bank, with a copy to
the Administrative Agent reflecting the Maximum Drawing Amount of all
Letters of Credit (including the requested Letter of Credit), such
Issuing Bank, on behalf of the Banks and in reliance upon the
representations and warranties of the Borrower contained herein and the
agreement of the Banks contained in Section 3.1(b) hereof, agrees to
issue Letters of Credit for the account of the Borrower (which may,
with such Issuing Bank's consent, incorporate automatic renewals for
periods of up to twelve (12) months), in such form as may be requested
from time to time by the Borrower and agreed to by the Issuing Bank;
provided, however, that, after giving effect to such request, the
aggregate Maximum Drawing Amount of all Letters of Credit issued at any
time shall not exceed the Total Commitment minus the aggregate
outstanding amount of the Loans and provided further, that no Letter of
Credit shall have an expiration date later than the earlier of (i)
eighteen (18) months after the date of issuance (which may incorporate
automatic renewals for periods of up to twelve (12) months), or (ii)
five (5) Business Days prior to the Maturity Date. The letters of
credit listed in Schedule 3.1(a) issued by Issuing Banks under the
Existing Credit Agreement shall be Letters of Credit under this
Agreement.
(b) Each Letter of Credit shall be denominated in Dollars.
Each Bank severally agrees that it shall be absolutely liable, without
regard to the occurrence of any Default or Event of Default, the
termination of the Total Commitment pursuant to Section 12.2, or any
other condition precedent whatsoever, to the extent of such Bank's
Commitment Percentage to reimburse the Issuing Bank on demand for the
amount of each draft paid by the Issuing Bank under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrower
pursuant to Section 3.2 (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank). Each Bank agrees
that its obligation to reimburse the Issuing Bank pursuant to this
Section 3.1(b) shall not be affected in any way by any circumstance
other than the gross negligence or willful misconduct of the Issuing
Bank.
(c) Each such reimbursement payment made by a Bank to the
Issuing Bank shall be treated as the purchase by such Bank of a
participating interest in the applicable Reimbursement Obligation under
Section 3.2 in an amount equal to such payment. Each Bank shall share
in accordance with its participating interest in any interest which
accrues pursuant to Section 3.2.
<PAGE> 31
-25-
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to
induce the Issuing Banks to issue, extend and renew each Letter of Credit, the
Borrower hereby agrees to reimburse or pay to each Issuing Bank, with respect to
each Letter of Credit issued, extended or renewed by such Issuing Bank hereunder
as follows:
(a) if any draft presented under any Letter of Credit is
honored by such Issuing Bank or such Issuing Bank otherwise makes
payment with respect thereto, the sum of (i) the amount paid by such
Issuing Bank under or with respect to such Letter of Credit, and (ii)
the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by such Issuing Bank in connection with any payment
made by such Issuing Bank under, or with respect to, such Letter of
Credit, provided however, if the Borrower does not reimburse such
Issuing Bank on the Drawdown Date, such amount shall, provided that no
Event of Default under Sections 12.1(g) or 12.1(h) has occurred, become
automatically a Syndicated Loan which is a Base Rate Loan advanced
hereunder in an amount equal to such sum; and
(b) upon the Maturity Date or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit shall be paid by the Borrower to the
Administrative Agent to be held as cash collateral for the applicable
Reimbursement Obligations.
SECTION 3.3. OBLIGATIONS ABSOLUTE. The Borrower's respective
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Issuing
Bank, any Bank or any beneficiary of a Letter of Credit, and the Borrower
expressly waives any such rights that it may have with respect thereto. The
Borrower further agrees with each Issuing Bank and the Banks that such Issuing
Bank and the Banks (i) shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.2 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged (unless due to the willful misconduct of
such Issuing Bank or any other Bank), or any dispute between or among the
Borrower and the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee, and (ii) shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit except to the extent of their own willful misconduct. The Borrower agrees
that any action taken or omitted by any Issuing Bank or any Bank in good faith
under or in connection with any Letter of Credit and the related drafts and
documents shall be binding upon the Borrower and shall not result in any
liability on the part of such Issuing Bank or any Bank (or their respective
affiliates) to the Borrower. Nothing herein shall constitute a waiver by the
Borrower of any of its rights against any beneficiary of a Letter of Credit.
<PAGE> 32
-26-
SECTION 3.4. RELIANCE BY THE ISSUING BANKS. To the extent not
inconsistent with Section 3.3, each Issuing Bank shall be entitled to rely, and
shall be fully protected in relying, upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile, telex or teletype message, statement, order or other
document believed by such Issuing Bank in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by such Issuing Bank.
SECTION 3.5. NOTICE REGARDING LETTERS OF CREDIT. One (1) Business Day
prior to the issuance of any Letter of Credit or amendments, extensions or
terminations thereof, the applicable Issuing Bank shall notify the
Administrative Agent of the terms of such Letter of Credit, amendment, extension
or termination. On the day of any drawing under any Letter of Credit, such
Issuing Bank shall notify the Administrative Agent of such drawing under any
Letter of Credit.
SECTION 3.6. LETTER OF CREDIT FEE. The Borrower shall pay a fee (the
"Letter of Credit Fee") equal to the Applicable L/C Rate on the Maximum Drawing
Amount of the Letters of Credit to the Administrative Agent for the account of
the Banks, to be shared pro rata by the Banks in accordance with their
respective Commitment Percentages. The Letter of Credit Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the quarter
just ended, with the first such payment commencing October 1, 2001, and on the
Maturity Date. In addition, an issuing fee (the "Issuance Fee") with respect to
each Letter of Credit to be agreed upon annually between the Borrower and each
Issuing Bank shall be payable by the Borrower to such Issuing Bank for its
account.
SECTION 4. COMPETITIVE BID LOANS.
SECTION 4.1. THE COMPETITIVE BID OPTION. In addition to the Syndicated
Loans made pursuant to Section 2 hereof, the Borrower may request Competitive
Bid Loans pursuant to the terms of this Section 4. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 4.
Notwithstanding any other provision herein to the contrary, at no time shall the
aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the Total Commitment minus the sum of (a) the aggregate outstanding
principal amount of Syndicated Loans (including the Swing Loans), plus (b) the
Maximum Drawing Amount of Letters of Credit, outstanding at such time.
SECTION 4.2. COMPETITIVE BID LOAN ACCOUNTS; COMPETITIVE BID NOTES.
<PAGE> 33
-27-
(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at
the applicable rate accrued thereon, shall be evidenced by this
Agreement and by individual loan accounts (the "Competitive Bid Loan
Accounts" and individually, a "Competitive Bid Loan Account")
maintained by the Administrative Agent on its books for each of the
Banks, it being the intention of the parties hereto that, except as
provided for in paragraph (b) of this Section 4.2, the Borrower's
obligations with respect to Competitive Bid Loans are to be evidenced
only as stated herein and not by separate promissory notes.
(b) Any Bank may at any time, and from time to time, request
that any Competitive Bid Loans outstanding to such Bank be evidenced by
a promissory note of the Borrower in substantially the form of Exhibit
C hereto (each, a "Competitive Bid Note"), dated as of the Effective
Date and completed with appropriate insertions. One Competitive Bid
Note shall be payable to the order of each Bank in an amount equal to
the Total Commitment, and representing the obligation of the Borrower
to pay such Bank such principal amount or, if less, the outstanding
principal amount of any and all Competitive Bid Loans made by such
Bank, plus interest at the applicable Competitive Bid Rate or
Competitive Bid Margin accrued thereon, as set forth herein. Upon
execution and delivery by the Borrower of a Competitive Bid Note, the
Borrower's obligation to repay any and all Competitive Bid Loans made
to it by such Bank and all interest thereon shall thereafter be
evidenced by such Competitive Bid Note.
(c) The Borrower irrevocably authorizes (i) each Bank to make
or cause to be made, in connection with a Drawdown Date of any
Competitive Bid Loan or at the time of receipt of any payment of
principal on such Bank's Competitive Bid Note in the case of a
Competitive Bid Note, and (ii) the Administrative Agent to make or
cause to be made, in connection with a Drawdown Date of any Competitive
Bid Loan or at the time of receipt of any payment of principal on such
Bank's Competitive Bid Loan Account in the case of a Competitive Bid
Loan Account, an appropriate notation on such Bank's records or on the
schedule attached to such Bank's Competitive Bid Note or a continuation
of such schedule attached thereto, or the Administrative Agent's
records, as applicable, reflecting the making of the Competitive Bid
Loan or the receipt of such payment (as the case may be) and such Bank
may, prior to any transfer of a Competitive Bid Note, endorse on the
reverse side thereof the outstanding principal amount of Competitive
Bid Loans evidenced thereby. The outstanding amount of the Competitive
Bid Loans set forth on such Bank's record or the Administrative Agent's
records, as applicable, shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount shall not limit
or otherwise affect the obligations of the Borrower hereunder to make
payments of principal of or interest on any Competitive Bid Loan when
due.
SECTION 4.3. COMPETITIVE BID QUOTE REQUEST; INVITATION FOR COMPETITIVE
BID QUOTES.
<PAGE> 34
-28-
(a) When the Borrower wishes to request offers to make
Competitive Bid Loans under this Section 4, it shall transmit to the
Administrative Agent by telex or facsimile a Competitive Bid Quote
Request substantially in the form of Exhibit H hereto (a "Competitive
Bid Quote Request") so as to be received no later than 1:00 p.m. (New
York time) (x) five (5) Eurodollar Business Days prior to the requested
Drawdown Date in the case of a Eurodollar Competitive Bid Loan (a
"Eurodollar Competitive Bid Loan") or (y) one (1) Business Day prior to
the requested Drawdown Date in the case of an Absolute Competitive Bid
Loan (an "Absolute Competitive Bid Loan"), specifying:
(i) the requested Drawdown Date (which must be a
Eurodollar Business Day in the case of a Eurodollar
Competitive Bid Loan or a Business Day in the case of an
Absolute Competitive Bid Loan);
(ii) the aggregate amount of such Competitive Bid
Loans, which shall be $10,000,000 or larger multiple of
$1,000,000;
(iii) the duration of the Interest Period(s)
applicable thereto, subject to the provisions of the
definition of Interest Period; and
(iv) whether the Competitive Bid Quotes requested are
for Eurodollar Competitive Bid Loans or Absolute Competitive
Bid Loans.
The Borrower may request offers to make Competitive Bid Loans for more
than one Interest Period in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until the Borrower has
notified the Administrative Agent of its acceptance or non-acceptance
of the Competitive Bid Quotes relating to any outstanding Competitive
Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request,
the Administrative Agent shall send to the Banks by telecopy or
facsimile transmission an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit I hereto, which shall constitute
an invitation by the Borrower to each Bank to submit Competitive Bid
Quotes in accordance with this Section 4.
SECTION 4.4. ALTERNATIVE MANNER OF PROCEDURE. If, after receipt by the
Administrative Agent and each of the Banks of a Competitive Bid Quote Request
from the Borrower in accordance with Section 4.3, the Administrative Agent or
any Bank shall be unable to complete any procedure of the auction process
described in Sections 4.5 through 4.6 (inclusive) due to the inability of such
Person to transmit or receive communications through the means specified
therein, such Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such Person shall rely on
telephone transmission or receipt, any communication made by telephone shall, as
soon as possible thereafter, be followed by written confirmation thereof.
<PAGE> 35
-29-
SECTION 4.5. SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(a) Each Bank may, but shall be under no obligation to, submit
a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the requirements of this
Section 4.5 and must be submitted to the Administrative Agent by telex
or facsimile transmission at its offices as specified in or pursuant to
Section 22 not later than (x) 2:00 p.m. (New York time) on the fourth
Eurodollar Business Day prior to the proposed Drawdown Date, in the
case of a Eurodollar Competitive Bid Loan or (y) 10:00 a.m. (New York
time) on the proposed Drawdown Date, in the case of an Absolute
Competitive Bid Loan, provided that Competitive Bid Quotes may be
submitted by the Administrative Agent in its capacity as a Bank only if
it submits its Competitive Bid Quote to the Borrower not later than (x)
one hour prior to the deadline for the other Banks, in the case of a
Eurodollar Competitive Bid Loan or (y) 15 minutes prior to the deadline
for the other Banks, in the case of an Absolute Competitive Bid Loan.
Subject to the provisions of Sections 10 and 11 hereof, any Competitive
Bid Quote so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the
form of Exhibit J hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan
for which each proposal is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the aggregate principal amount
of Competitive Bid Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which offers
being made by such quoting Bank may be accepted;
(iii) the Interest Period(s) for which Competitive
Bid Quotes are being submitted;
(iv) in the case of a Eurodollar Competitive Bid
Loan, the margin above or below the applicable Eurodollar Rate
(the "Competitive Bid Margin") offered for each such
Competitive Bid Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or subtracted
from such Eurodollar Rate;
(v) in the case of an Absolute Competitive Bid Loan,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Competitive Bid Rate") offered for
each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Bank.
<PAGE> 36
-30-
A Competitive Bid Quote may include up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bid Quotes; or
(iv) arrives after the time set forth in Section
4.5(a) hereof.
SECTION 4.6. NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Competitive Bid Quote
submitted by a Bank that is in accordance with Section 4.5 and (y) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request, (B) the respective principal amounts and
Competitive Bid Margins or Competitive Bid Rates, as the case may be, so
offered, and the identity of the respective Banks submitting such offers, and
(C) if applicable, limitations on the aggregate principal amount of Competitive
Bid Loans for which offers in any single Competitive Bid Quote may be accepted.
SECTION 4.7. ACCEPTANCE AND NOTICE BY BORROWER AND ADMINISTRATIVE
AGENT. Not later than 11:00 a.m. (New York time) on (x) the third Eurodollar
Business Day prior to the proposed Drawdown Date, in the case of a Eurodollar
Competitive Bid Loan or (y) the proposed Drawdown Date, in the case of an
Absolute Competitive Bid Loan, the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of each Competitive Bid Quote in
substantially the form of Exhibit K hereto. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case
may be, and
<PAGE> 37
-31-
(iii) the Borrower may not accept any offer that is described
in subsection 4.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
The Administrative Agent shall promptly notify each Bank which submitted a
Competitive Bid Quote of the Borrower's acceptance or non-acceptance thereof. At
the request of any Bank which submitted a Competitive Bid Quote and with the
consent of the Borrower, the Administrative Agent will promptly notify all Banks
which submitted Competitive Bid Quotes of (a) the aggregate principal amount of,
and (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the
accepted Competitive Bid Loans for each requested Interest Period.
SECTION 4.8. ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Banks with the same Competitive Bid Margin or Competitive Bid Rate,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not less than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Administrative Agent of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
SECTION 4.9. FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not
terminated in full and if, on such Drawdown Date, the applicable conditions of
Sections 10 and 11 hereof are satisfied, the Bank or Banks whose offers the
Borrower has accepted will fund each Competitive Bid Loan so accepted. Such Bank
or Banks will make such Competitive Bid Loans by crediting the Administrative
Agent for further credit to the Borrower's specified account with the
Administrative Agent, in immediately available funds not later than 1:00 p.m.
(New York time) on such Drawdown Date.
SECTION 4.10. FUNDING LOSSES. If, after acceptance of any Competitive
Bid Quote pursuant to Section 4, the Borrower (i) fails to borrow any
Competitive Bid Loan so accepted on the date specified therefor, or (ii) repays
the outstanding amount of the Competitive Bid Loan prior to the last day of the
Interest Period relating thereto, the Borrower shall indemnify the Bank making
such Competitive Bid Quote or funding such Competitive Bid Loan against any loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such unborrowed
Competitive Bid Loans, including, without limitation compensation as provided in
Section 5.8.
SECTION 4.11. REPAYMENT OF COMPETITIVE BID LOANS; INTEREST. The
principal of each Competitive Bid Loan shall become absolutely due and payable
by the Borrower on the last day
<PAGE> 38
-32-
of the Interest Period relating thereto, and the Borrower hereby absolutely and
unconditionally promises to pay to the Administrative Agent for the account of
the relevant Banks at or before 1:00 p.m. (New York time) on the last day of the
Interest Periods relating thereto the principal amount of all such Competitive
Bid Loans, plus interest thereon at the applicable rates. The Competitive Bid
Loans shall bear interest at the rate per annum specified in the applicable
Competitive Bid Quotes. Interest on the Competitive Bid Loans shall be payable
(a) on the last day of the applicable Interest Periods, and if any such Interest
Period is longer than three months, also on the last day of the third month
following the commencement of such Interest Period, and (b) on the Maturity Date
for all Loans. Subject to the terms of this Agreement, the Borrower may make
Competitive Bid Quote Requests with respect to new borrowings of any amounts so
repaid prior to the Maturity Date.
SECTION 5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT.
SECTION 5.1. PAYMENTS.
(a) All payments of principal, interest, Reimbursement
Obligations, fees (other than the Issuance Fee) and any other amounts
due hereunder or under any of the other Loan Documents shall be made to
the Administrative Agent at its Loan Office in immediately available
funds by 11:00 a.m. (New York time) on any due date. Subject to the
provisions of Section 29, if a payment is received by the
Administrative Agent at or before 1:00 p.m. (New York time) on any
Business Day, the Administrative Agent shall on the same Business Day
transfer in immediately available funds, as applicable, to (1) each of
the Banks, their pro rata portion of such payment in accordance with
their respective Commitment Percentages, in the case of payments with
respect to Syndicated Loans and Letters of Credit, (2) the
Administrative Agent in the case of payments with respect to Swing Line
Loans, and (3) the appropriate Bank(s), in the case of payments with
respect to Competitive Bid Loans. If such payment is received by the
Administrative Agent after 1:00 p.m. (New York time) on any Business
Day, such transfer shall be made by the Administrative Agent to the
applicable Bank(s) on the next Business Day. In the event that the
Administrative Agent fails to make such transfer to any Bank as set
forth above, the Administrative Agent shall pay to such Bank on demand
an amount equal to the product of (i) the average, computed for the
period referred to in clause (iii) below, of the weighted average
interest rate paid by such Bank for funds acquired by such Bank during
each day included in such period, times (ii) the amount (A) equal to
such Bank's Commitment Percentage of such payment in the case of
pay