EXHIBIT 10.1(i)
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SEVENTH AMENDMENT
TO REVOLVING CREDIT
AND PARTICIPATION AGREEMENT
This SEVENTH AMENDMENT TO REVOLVING CREDIT AND PARTICIPATION AGREEMENT
(this "Amendment") is dated as of March 22, 2002 and entered into by and among
COVANTA ENERGY CORPORATION, a Delaware corporation ("Company"), and THE
SUBSIDIARIES OF COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS
(collectively, Company and such Subsidiaries of Company are "Borrowers" and each
a "Borrower"), THE SUBSIDIARIES OF COMPANY LISTED ON THE SIGNATURE PAGES HEREOF
AS SUBSIDIARY GUARANTORS (collectively, the "Subsidiary Guarantors"), THE
LENDERS PARTY HERETO, BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders ("Administrative Agent"), and DEUTSCHE BANK AG, NEW YORK BRANCH, as
Documentation Agent for the Lenders ("Documentation Agent"), and is made with
reference to that certain Revolving Credit and Participation Agreement dated as
of March 14, 2001 (as amended, restated, supplemented or otherwise modified
prior to the date hereof, the "Credit Agreement"), by and among Borrowers, the
financial institutions parties thereto as Lenders, Administrative Agent and
Documentation Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement (as amended by
this Amendment).
RECITALS
WHEREAS, Borrowers and the undersigned Lenders desire to (i) amend
certain provisions of the Credit Agreement to (a) permit the sales of certain
interests in Thailand and (b) permit Company to guarantee the indemnification
obligations of its Subsidiaries under the relevant sale agreements, and (ii)
make certain other amendments to the Credit Agreement as set forth below, in
each case subject to the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Provisions Relating to Defined Terms.
Subsection 1.1 of the Credit Agreement is hereby amended by inserting
the following new definitions in the appropriate alphabetical order:
"Seventh Amendment" means that certain Seventh Amendment to this
Agreement dated as of March 22, 2002.
"Seventh Amendment Effective Date" has the meaning assigned to that
term in the Seventh Amendment.
"Thai Buyers" means, collectively, Rojana Industrial Park Public
Company Limited, Sumikin Bussan Corporation, Saha Pathana Inter-Holding
Public Company Limited, S&J International Enterprises Public Company
Limited, I.C.C. International Public Company Limited and Saha Pathanapibul
Public Company Limited.
"Thai Companies" means, collectively, (i) Operational Energy Group
Limited, a company incorporated under the laws of Thailand that is in the
business of operating and maintaining electric power and thermal energy
production facilities, (ii) Rojana Power Co. Ltd., a company incorporated
under the laws of Thailand that owns a natural gas fueled cogeneration
power plant in Ayudthaya, Thailand, and (iii) Sahacogen (Chonburi) Co.,
Ltd., a company incorporated under the laws of Thailand that owns a natural
gas fueled cogeneration power plant in Sriracha, Thailand.
"Thai Sale Agreements" means, collectively, (i) the agreements for the
sale of the equity interests of Company and its Subsidiaries in the Thai
Companies to the Thai Buyers and (ii) all principal documents executed by
Company, any of its Subsidiaries or any of the Thai Buyers in connection
with such agreements, in each case in the form delivered to Agents and
Lenders prior to the Seventh Amendment Effective Date, with such
modifications thereto prior to execution and delivery thereof as may be
reasonably satisfactory to Agents (it being understood that such agreements
and documents may not be modified in a manner that would reasonably be
expected to result in a breach of this Agreement or that is material and
would reasonably be expected to be adverse to the interests of Borrowers or
the Lenders, without the prior written consent of the Requisite Lenders,
except that modifications to defer receipt of a portion of the purchase
price shall require only the consent of Agents), and as such agreements and
documents may be amended, supplemented or otherwise modified after the
execution thereof to the extent permitted under this Agreement.
1.2 Provision Relating to Contingent Obligations.
Subsection 7.4 of the Credit Agreement is hereby amended by (1)
deleting the word "and" at the end of clause (ix), (ii) deleting the "." at the
end of clause (x) and substituting "; and" therefor, and (iii) inserting the
following new clause (xi) immediately after clause (x):
"(xi) On and after consummation of the Asset Sale permitted under
subsection 7.7(xv), Covanta Energy Group, Inc. may become and remain liable
with respect to Contingent Obligations consisting of guaranties (under the
Thai Sale Agreements) of the indemnification obligations of its
Subsidiaries to the Thai Buyers."
1.3 Provision Relating to Fundamental Changes.
Subsection 7.7 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (xiii), (ii) deleting the "." at
the end of clause (xiv) and substituting "; and" therefor, and (iii) inserting
the following new clause (xv) immediately after clause (xiv):
"(xv) On or after the Seventh Amendment Effective Date, Subsidiaries
of Company may sell their respective equity interests in the Thai Companies
pursuant to and in accordance with the terms of the Thai Sale Agreements;
provided that the aggregate Net Asset Sale Proceeds from such sales shall
not be less than $33,000,000 and shall, within one Business Day after
receipt thereof (whether received on the date of consummation of such sale
or deferred), be deposited in the Cash Collateral Account (it being
understood that prior to receipt of any such proceeds Company shall have
provided evidence reasonably satisfactory to Agents that Company and its
Subsidiaries have made arrangements to effect such deposit on a timely
basis), except that not more than $2,000,000 of such Net Asset Sale
Proceeds may be deposited in other Collateral Accounts."
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Borrowers represent
and warrant to each Lender that the following statements are true, correct and
complete:
2.1 Corporate Power and Authority. Each Loan Party has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary corporate action on the part
of each Loan Party and the performance of the Amended Agreement has been duly
authorized by all necessary corporate action on the part of each Borrower.
2.3 No Conflict. The execution and delivery by each Loan Party of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Loan Party or any of its Subsidiaries, or the
Certificate or Articles of Incorporation or Certificate of Formation or Bylaws
or Operating Agreement of any Loan Party or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
any Loan Party or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument to which any
Loan Party or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject (each such indenture,
mortgage, deed of trust, credit agreement, loan agreement, material agreement,
contract or instrument, a "Contractual Obligation"), (iii) result in or require
the creation or imposition of any Lien upon any of the properties or assets of
any Loan Party or any of its Subsidiaries (other than Liens created under any of
the Loan Documents in favor of Administrative Agent or Collateral Agent on
behalf of the Banks), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any Loan
Party or any of its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each Loan
Party of this Amendment and the performance by each Borrower of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
2.5 Binding Obligation. This Amendment has been duly executed and
delivered by each Loan Party, and each of this Amendment and the Amended
Agreement is the legally valid and binding obligations of each Loan Party
enforceable against each Loan Party in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Seventh Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement, other than the Designated Payment Defaults (as defined in
subsection 10.27 of the Credit Agreement).
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the date
on which Agents shall have received (i) substantially final drafts of the Thai
Sale Agreements, which shall not contain any provision or contemplate any
transaction prohibited by the Amended Agreement and shall otherwise be in form
and substance reasonably satisfactory to Agents, and (ii) such other documents
and information regarding the Asset Sales contemplated under the Thai Sale
Agreements as Agents or Lenders shall have reasonably requested (such date being
referred to herein as the "Seventh Amendment Effective Date").
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower and Subsidiary Guarantor hereby acknowledges that such
Loan Party 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 such Loan Party is a party shall not be impaired and each of the Loan
Documents to which such Loan Party is a party are, and shall continue to be, in
full force and effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
A. On and after the Seventh Amendment Effective Date, 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 Amended Agreement.
B. 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.
C. The execution, delivery and performance of this Amendment shall not
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.
D. Company agrees that any failure to comply with the covenants in
this Amendment shall be an Event of Default under the Credit Agreement.
5.2 Fees and Expenses. Each Borrower acknowledges that all costs, fees
and expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent, Documentation Agent or the Lenders and their respective
counsel (including, without limitation, O'Melveny & Myers LLP and Ernst & Young
Corporate Finance LLC) with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrowers.
5.3 Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 Applicable Law. 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.
5.5 Counterparts; Effectiveness. 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;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment (other than the provisions of Section 1
hereof, the effectiveness of which is governed by Section 3 hereof) shall become
effective upon (i) the execution of a counterpart hereof by each Borrower, each
Subsidiary Guarantor and Lenders constituting Requisite Lenders, and (ii)
receipt by each Borrower, Administrative Agent and Documentation Agent of
written or telephonic notification of such execution and authorization of
delivery thereof. Section 1 of this Amendment shall become effective only in the
manner set forth in Section 3 of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
COVANTA ENERGY CORPORATION
By:/s/ Jeffrey R. Horowitz
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Name: Jeffrey R. Horowitz
Title: Authorized Officer
Each of the entities named on Schedule A annexed
hereto, as Borrowers
By:/s/ Jeffrey R. Horowitz
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Name: Jeffrey R. Horowitz
Title: Authorized Officer
Each of the entities named on Schedule B annexed
hereto, as Subsidiary Guarantors
By:/s/ William J. Metzger
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Name: William J. Metzger
Title: Authorized Officer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent, Co-Arranger, Co-Book
Runner and as a Lender
By:/s/ Michael R. Heredia
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Name: Michael R. Heredia
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH
As Documentation Agent, Co-Arranger, Co-Book
Runner and as a Lender
By:/s/ Keith C. Braun
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Name: Keith C. Braun
Title: Vice President
By:/s/ Clark G. Peterson
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Name: Clark G. Peterson
Title: Vice President
BANC OF AMERICA SECURITIES LLC, as agent for
BANK OF AMERICA, N.A.
as a Lender
By:/s/ Gregory Ford
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Name: Gregory Ford
Title: Managing Director
By:/s/
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Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By:/s/ Michael Novellino
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Name: Michael Novellino
Title: Associate Director
By:/s/ John W. Sweeney
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Name: John W. Sweeney
Title: Director
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender
By:/s/ Brian T. McDonough
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Name: Brian T. McDonough
Title: Vice-President
By:/s/
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Name:
Title:
CLARICA LIFE INSURANCE COMPANY,
as a Lender
By:/s/ Sara M. Alvarado
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Name: Sara M. Alvarado
Title: Director, Structured Finance
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
as a Lender
By:/s/ Robert J. Donohue
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Name: Robert J. Donohue
Title: Senior Vice President
By:/s/ Peter Doyle
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Name: Peter Doyle
Title: Vice President
HSBC BANK CANADA,
as a Lender
By:/s/ J. S. Brydon
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Name: J. S. Brydon
Title: Senior Manager
By:/s/ B. W. Pittit
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Name: B. W. Pittit
Title: Assistant Vice President
HSBC BANK USA,
as a Lender
By:/s/ Carol A. Kraus
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Name: Carol A. Kraus
Title: Vice President
THE BANK OF NEW YORK,
as a Lender
By:/s/ Peter W. Helt
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Name: Peter W. Helt
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Lender
By:/s/ Joseph J. Farricielli, Jr.
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Name: Joseph J. Farricielli, Jr.
Title: Director
THE SUMITOMO TRUST & BANKING CO., LTD.
NY BRANCH,
as a Lender
By:/s/ Elizabeth A. Quirk
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Name: Elizabeth A. Quirk
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
(formerly known as Firstar Bank, N.A.),
as a Lender
By:/s/ Alan R. Milster
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Name: Alan R. Milster
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as a Lender
By:/s/ Alan S. Bookspan
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Name: Alan S. Bookspan
Title: Director
By:/s/ Walter T. Duffy, III
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Name: Walter T. Duffy, III
Title: Associate Director