EXHIBIT 10.1(h)
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SIXTH AMENDMENT TO CREDIT AGREEMENT
Dated as of March 12, 2002
Reference is made to that certain Revolving Credit and Participation
Agreement dated as of March 14, 2001 (said Agreement, as amended to the date
hereof, being the "Credit Agreement", the terms defined therein being used in
this Sixth Amendment (this "Amendment") as therein defined), among Covanta
Energy Corporation ("Company"), the Subsidiaries of Company listed on the
signature pages thereof (collectively, Company and such Subsidiaries are
referred to herein as "Borrowers"), the financial institutions listed on the
signature pages thereof, Administrative Agent and Documentation Agent. Borrowers
and the undersigned Agents and Lenders hereby agree as follows:
Section 10 of the Credit Agreement is hereby amended by adding at the
end thereof the following new subsection 10.27:
"10.27 Cash Withdrawals During Designated Period.
Anything contained in this Agreement to the contrary
notwithstanding, solely during the Designated Period (as defined
below): (i) the conditions precedent set forth in subsection 4.4C(iv)
shall be deemed waived; (ii) the conditions precedent set forth in
subsections 4.4C(ii-iii) and any required representation in subsection
5.8A or any Notice of Withdrawal, to the extent such conditions cannot
be satisfied or such representation cannot be made solely as a result
of the Designated Payment Defaults (as defined below), shall be deemed
waived; (iii) subsection 4.4C shall be deemed modified to give effect
to the waivers described in the preceding clauses (i) and (ii); (iv)
the requirements of subsection 7.16A(e) for the week ending March 15,
2002 shall be deemed waived, provided that the "Ending Cash Balance"
as of March 15, 2002 shall be $23,000,000; (v) the "Ending Cash
Balance" for purposes of subsection 7.16A(e) for the week ending March
22, 2002 shall be $19,000,000; (vi) Borrowers shall be permitted to
deliver a Notice of Withdrawal at any time prior to 4:00 p.m. (New
York City time) on any proposed Withdrawal Date for a withdrawal from
the Cash Collateral Account on such date; and (vii) no Mandatory
Payment shall be required to be made pursuant to the first sentence of
subsection 2.6A(iii)(e). As used herein, the "Designated Period" means
the period from March 12, 2002 through and including March 22, 2002;
provided that such Designated Period shall end at such time as any
Potential Event of Default or Event of Default (other than the
Potential Events of Default and Events of Default arising solely from
Borrowers' (x) failure to reimburse an honored drawing under the
Pooled Letter of Credit issued by Fleet National Bank relating to the
Senators Hockey Club and the resulting acquisition of preference
shares, and (y) failure to pay interest and fees owing during the
Designated Period with respect to the Obligations (collectively, the
"Designated Payment Defaults")) shall have occurred and be
continuing."
On and after the Effective Date (as defined below), each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment. Except as
specifically amended by this Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of any Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents. Each Borrower
and Subsidiary Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of such
Loan Party under each of the Loan Documents to which it is a party shall not be
impaired and each of the Loan Documents to which it is a party are, and shall
continue to be, in full force and effect and are hereby confirmed and ratified
in all respects.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts; each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. This Amendment shall
become effective upon the execution of counterparts hereof by Loan Parties,
Agents and Supermajority Lenders and receipt by Company and Administrative Agent
of written or telephonic notification of such execution and authorization of
delivery thereof (the date of such effectiveness being the "Effective Date").
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the each of the undersigned has caused
this Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
COVANTA ENERGY CORPORATION
By: /s/ Jeffrey R. Horowitz
-----------------------
Name: Jeffrey R. Horowitz
Title: Authorized Officer
Each of the entities named on Schedule A annexed
hereto, as Borrowers
By: /s/ Jeffrey R. Horowitz
-----------------------
Name: Jeffrey R. Horowitz
Title: Authorized Officer
Each of the entities named on Schedule B
annexed hereto, as Subsidiary Guarantors
By: /s/ Scott G. Mackin
-------------------
Name: Scott G. Mackin
Title: Authorized Officer
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
BANK OF AMERICA NA
By: /s/ Michael R. Heredia
----------------------
Name: Michael R. Heredia
Title: Managing Director
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
Deutsche Bank AG, New York Branch
By: /s/ Keith C. Braun
-------------------
Name: Keith C. Braun
Title: Vice President
By: /s/ Clark G. Peterson
---------------------
Name: Clark G. Peterson
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
ABNAMRO BANK N.V.
By: /s/ Neil J. Bivona
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Name: Neil J. Bivona
Title: Group Vice President
By: /s/ William J. Fitzgerald
-------------------------
Name: William J. Fitzgerald
Title: Senior Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
Banc of America Securities
LLC as Agent for Bank of
America, N.A.
By: /s/ Peter T. Santry
-------------------
Name: Peter T. Santry
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
BANK OF MONTREAL
By: /s/ Heather L. Turf
-------------------
Name: Heather L. Turf
Title: Director
IN WITNESS WHEREOF, the undersigned Lender has caused this
Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
BAYERISCHE HYPO-UND VEREINSBANK AG
By: /s/ John W. Sweeney
-------------------
Name: John W. Sweeney
Title: Director
By: /s/ Salvatore Esposito
-----------------------
Name: Salvatore Esposito
Title: Director
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ D.K. Smith
--------------
Name: D.K. Smith
Title: Managing Director
By: /s/ R.M. Callander
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Name: R.M. Callander
Title: Director
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
CLARICA LIFE INSURANCE CO.
By: /s/ Sara M. Alvarado
--------------------
Name: Sara M. Alvarado
Title: Director, Structured Finance
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
Commerzbank AG,
New York and Grand Cayman Branches
By: /s/ Robert Donohue
------------------
Name: Robert Donohue
Title: Senior Vice President
By: /s/ Peter Doyle
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Name: Peter Doyle
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
First Union National Bank
By: /s/ Joel Thomas
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Name: Joel Thomas
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this
Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
FLEET NATIONAL BANK
By: /s/ Michael F. O'Neill
----------------------
Name: Michael F. O'Neill
Title: Senior Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
HSBC BANK CANADA
By: /s/ B.W. Pettit
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Name: B.W. Pettit
Title: Assistant Vice President
By: /s/ R.S. MacKenzie
------------------
Name: R.S. MacKenzie
Title: Assistant Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this
Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
HSBC BANK CANADA
as successor company to
Credit Lyonnais Canada
By: /s/ B.W. Pettit
---------------
Name: B.W. Pettit
Title: Assistant Vice President
By: /s/ R.S. MacKenzie
------------------
Name: R.S. MacKenzie
Title: Assistant Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
HSBC BANK USA
By: /s/ Carol A. Kraus
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Name: Carol A. Kraus
Title: HSBC Bank USA
Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
THE HUNTINGTON NATIONAL BANK
By: /s/ Thomas F. Krusnel
---------------------
Name: Thomas F. Krusnel
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
JP Morgan Chase Bank
By: /s/ Michael Lancia
------------------
Name: Michael Lancia
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
By: /s/ Michael D. Novack
---------------------
Name: Michael D. Novack
Title: VP
By: /s/ David A. Leech
------------------
Name: David A. Leech
Title: Vice President
Corporate Finance Division
Structured Finance Dept.
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
NATIONAL WESTMINSTER BANK plc
By: /s/ Julian Dakin
----------------
Name: Julian Dakin
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
ROYAL BANK OF SCOTLAND plc
By: /s/ Julian Dakin
----------------
Name: Julian Dakin
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
SANPAOLO IMI S.p.A.
By: /s/ Carlo Persico
-----------------
Name: Carlo Persico
Title: G.M.
By: /s/ Robert Wurster
-------------------
Name: Robert Wurster
Title: SVP
IN WITNESS WHEREOF, the undersigned Lender has caused this
Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
THE BANK OF NEW YORK
By: /s/ Julie B. Fellosco
---------------------
Name: Julie B. Fellosco
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
The Bank of Nova Scotia
By: /s/ Joseph J. Farricielli, Jr.
------------------------------
Name: Joseph J. Farricielli, Jr.
Title: Director
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
The Sumitomo Trust & Banking Co., Ltd.,
NY Branch
By: /s/ Elizabeth A. Quirk
----------------------
Name: Elizabeth A. Quirk
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
THE TORONTO DOMINION BANK
By: /s/ Mark A. Baird
-----------------
Name: Mark A. Baird
Title: Mgr. CR Admin.
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
THE TORONTO-DOMINION BANK
By: /s/ L. Godina
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Name: L. Godina
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
U.S. BANK, N.A.
By: /s/ Alan R. Milster
-------------------
Name: Alan R. Milster
Title: Vice President
IN WITNESS WHEREOF, the undersigned Lender has caused this Amendment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
Westdeutsche Landesbank Girozentrale,
New York Branch
By: /s/ Alan S. Bookspan
--------------------
Name: Alan S. Bookspan
Title: Director
By: /s/ Walter T. Duffy III
-----------------------
Name: Walter T. Duffy III
Title: Associate Director
Schedule A
OTHER BORROWERS
1. Covanta Acquisition, Inc.
2. Covanta Bessemer, Inc.
3. Covanta Cunningham Environmental Support, Inc.
4. Covanta Geothermal Operations Holdings, Inc.
5. Covanta Imperial Power Services, Inc.
6. Covanta Oahu Waste Energy Recovery, Inc.
7. Covanta Energy Americas, Inc.
8. Covanta Energy Construction, Inc.
9. Covanta Energy Group, Inc.
10. Covanta Energy Resource Corp.
11. Covanta Energy Sao Jeronimo, Inc.
12. Covanta Energy West, Inc.
13. Covanta Energy International, Inc.
14. Covanta Energy Services, Inc.
15. Covanta Equity of Stanislaus, Inc.
16. Covanta Financial Services, Inc.
17. Covanta Geothermal Operations, Inc.
18. Covanta Haverhill Properties, Inc.
19. Covanta Hydro Energy, Inc.
20. Covanta Hydro Operations West, Inc.
21. Covanta Haverhill, Inc.
22. Covanta Huntington Resource Recovery One Corp.
23. Covanta Huntington Resource Recovery Seven Corp.
24. Covanta Long Island, Inc.
25. Covanta Oil & Gas, Inc.
26. Covanta Omega Lease, Inc.
27. Covanta Onondaga Five Corp.
28. Covanta Onondaga Four Corp.
29. Covanta Onondaga Three Corp.
30. Covanta Onondaga Two Corp.
31. Covanta Onondaga, Inc.
32. Covanta Onondaga Operations, Inc.
33. Covanta OPWH, Inc.
34. Covanta Power Development, Inc.
35. Covanta Power Development of Bolivia, Inc.
36. Covanta Power Equity Corporation
37. Covanta Power International Holdings, Inc.
38. Covanta Projects, Inc.
39. Covanta RRS Holdings Inc.
40. Covanta SIGC Geothermal Operations, Inc.
41. Covanta Stanislaus, Inc.
42. Covanta Systems, Inc.
43. Covanta Waste Solutions, Inc.
44. Covanta Waste to Energy of Italy, Inc.
45. Covanta Waste to Energy, Inc.
46. Covanta Secure Services USA, Inc.
47. Covanta Secure Services, Inc.
48. Covanta Water Holdings, Inc.
49. Covanta Water Systems, Inc.
50. Covanta Water Treatment Services, Inc.
51. DSS Environmental, Inc.
52. Haverhill Power, Inc.
53. Covanta Honolulu Resource Recovery Venture
54. LMI, Inc.
55. Michigan Waste Energy, Inc.
56. Covanta New Martinsville Hydro-Operations Corporation
57. OFS Equity of Alexandria/Arlington, Inc.
58. OFS Equity of Babylon, Inc.
59. OFS Equity of Delaware, Inc.
60. OFS Equity of Huntington, Inc.
61. OFS Equity of Indianapolis, Inc.
62. OFS Equity of Stanislaus, Inc.
63. Covanta Engineering Services, Inc.
64. Ogden Environmental & Energy Services Co., Inc.
65. Covanta Hydro Operations, Inc.
66. Ogden Management Services, Inc.
67. Covanta Marion Land Corp.
68. Covanta Operations of Union LLC
69. Covanta Alexandria/Arlington, Inc.
70. Covanta Bristol, Inc.
71. Covanta Fairfax, Inc.
72. Covanta Hillsborough, Inc.
73. Covanta Huntsville, Inc.
74. Covanta Kent, Inc.
75. Covanta Lancaster, Inc.
76. Covanta Lee, Inc.
77. Covanta Marion, Inc.
78. Covanta Montgomery, Inc.
79. Covanta Northwest Puerto Rico, Inc.
80. Covanta Pasco, Inc.
81. Covanta Plant Services of New Jersey, Inc.
82. Covanta Projects of Hawaii, Inc.
83. Ogden Services Corporation
84. Covanta Wallingford Associates, Inc.
85. Covanta Key Largo, Inc.
86. Covanta Tampa Bay, Inc.
87. Covanta Equity of Alexandria/Arlington, Inc.
88. OPI Quezon Inc.
89. Covanta OPW Associates, Inc.
90. Covanta Mid-Conn., Inc.
91. Three Mountain Operations, Inc.
92. The Metropolitan Entertainment Co., Inc.
93. J.R. Jacks Construction Corporation
94. Ogden Constructors, Inc.
95. Covanta Huntington, Inc.
Schedule B
SUBSIDIARY GUARANTORS
1. LaGuardia Fuel Facilities Corporation
2. Lenzar Electro-Optics, Inc.
3. Newark Automotive Fuel Facilities Corporation
4. Ogden Allied Maintenance Corporation
5. Ogden Allied Payroll Services, Inc.
6. Ogden Attractions, Inc.
7. Ogden Aviation Distributing Corporation
8. Ogden Aviation Fueling Company of Virginia, Inc.
9. Ogden Aviation Service Company of Colorado, Inc.
10. Ogden Aviation Service Company of New Jersey, Inc.
11. Ogden Aviation Service Company of New York, Inc.
12. Ogden Aviation Service Company of Pennsylvania, Inc.
13. Ogden Aviation Service International Corporation
14. Ogden Aviation, Inc.
15. Ogden Cargo Spain, Inc.
16. Ogden Central and South America, Inc.
17. Ogden Facility Holdings, Inc.
18. Ogden Film and Theatre, Inc.
19. Ogden Firehole Entertainment Corp.
20. Ogden International Europe, Inc.
21. Ogden New York Services, Inc.
22. Philadelphia Fuel Facilities Corporation
23. PA Aviation Fuel Holdings, Inc.