Exhibit 10.1 (t)
SEVENTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT AND LIMITED CONSENT
This SEVENTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT
AGREEMENT AND LIMITED CONSENT (this "Amendment") is dated as of May 23, 2003 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 Debtor-in-Possession Credit Agreement dated
as of April 1, 2002, as amended by that certain First Amendment to
Debtor-in-Possession Credit Agreement and Security Agreement dated as of April
3, 2002, that certain Second Amendment to Debtor-in-Possession Credit Agreement
dated as of May 10, 2002, that certain Third Amendment and Limited Waiver to
Debtor-in-Possession Credit Agreement dated as of October 4, 2002, that certain
Fourth Amendment to Debtor-in-Possession Credit Agreement and Limited Consent
dated as of December 10, 2002, that certain Fifth Amendment to
Debtor-in-Possession Credit Agreement dated as of December 18, 2002, and that
certain Sixth Amendment to Debtor-in-Possession Credit Agreement, Limited
Consent and Amendment to Security Agreement dated as of March 25, 2003 (as so
amended, the "Credit Agreement"), by and among Borrowers, the financial
institutions parties thereto as Lenders, Documentation Agent and Administrative
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 (i) to
amend the Credit Agreement to permit a restructuring of the obligations relating
to the Hennepin Project and to permit amendments to the corresponding Tranche A
Letter of Credit and Tranche B Letters of Credit, and (ii) to make certain other
amendments to the Credit Agreement, 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; LIMITED CONSENT
1.1 Provisions Relating to Defined Terms.
Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Tranche A Letter of Credit Sublimit" in its entirety
and inserting the following new definitions in the appropriate alphabetical
order:
"CHERC" means Covanta Hennepin Energy Resource Co., L.P., a
Borrower.
"GECC" means TIFD III-A Inc., a wholly owned Subsidiary of
General Electric Capital Corporation.
"Hennepin County" means the County of Hennepin, Minnesota.
"Hennepin L/C Amendments" means, collectively, amendments to
the Hennepin Letters of Credit made by the Issuing Lenders thereof
concurrently with the Hennepin Project Restructuring, which amendments
shall, among other things, acknowledge the transfer of such Letters of
Credit by the existing beneficiary thereof to Hennepin County and provide
(i) that the aggregate outstanding face amount of the Hennepin Letters of
Credit shall be automatically and irrevocably reduced (until the effective
date of a plan of reorganization for Company) on a monthly basis by the
amount of "Fee Credits" referred to in clause (i) of the definition of "New
Hennepin Service Agreement" below that are actually applied in the relevant
month (with all such reductions to be applied to the Hennepin Letter of
Credit referred to in clause (iii) of the definition of "Hennepin Letters of
Credit"), (ii) that on the effective date of a plan of reorganization for
Company, the Hennepin Letters of Credit referred to in clauses (ii) and
(iii) of the definition of "Hennepin Letters of Credit" shall automatically
expire and be cancelled and the aggregate outstanding face amount of the
remaining Hennepin Letter of Credit shall be automatically and irrevocably
reduced to $17,000,000, (iii) that thereafter, on July 1, 2010 and on July 1
of each year thereafter the remaining Hennepin Letter of Credit shall be
automatically and irrevocably reduced by $2,500,000 on each such date until
July 1, 2016, on which date the remaining Hennepin Letter of Credit shall
automatically expire and be cancelled, (iv) that the Hennepin Letters of
Credit shall be drawable only upon the termination of the New Hennepin
Service Agreement resulting from a default by CHERC thereunder or, for as
long as the Hennepin Letters of Credit are required to be outstanding, upon
failure to extend or renew the same 20 calendar days prior to the stated
expiration date thereof, and (v) for the terms contained in Annex B attached
to the Seventh Amendment.
"Hennepin Letters of Credit" means, collectively, (i) that
certain Tranche B Letter of Credit issued by Commerzbank and outstanding in
the face amount of $18,880,552 on and as of the Seventh Amendment Effective
Date, (ii) that certain Tranche B Letter of Credit issued by Bank of
America, N.A., and outstanding in the face amount of $4,195,678.12 on and as
of the Seventh Amendment Effective Date, and (iii) that certain Tranche A
Letter of Credit issued by Bank of America, N.A., and outstanding in the
face amount of $2,097,839.06 on and as of the Seventh Amendment Effective
Date, as such Letters of Credit may be amended by the Hennepin L/C
Amendments, and as such Letters of Credit may thereafter be amended,
supplemented, extended, replaced or otherwise modified to the extent
permitted hereunder.
"Hennepin Project" means the resource recovery Project in
Hennepin County, Minnesota.
"Hennepin Project Guaranty" means a guaranty, which guaranty
shall be in form and substance satisfactory to Agents, by Company of CHERC's
obligations under the New Hennepin Service Agreement.
"Hennepin Project Restructuring" means, collectively, (i) the
purchase by Hennepin County of the ownership interest in the resource
recovery facilities for the Hennepin Project, (ii) the termination of the
existing facility lease agreement, service agreement, project guaranty, loan
agreement, ground lease, site lease and other ancillary agreements relating
to the existing lease of the Hennepin Project pursuant to agreement among
CHERC, Company, Hennepin County and GECC, (iii) the execution and delivery
by CHERC and Hennepin County of the New Hennepin Service Agreement, and (iv)
the execution and delivery by Company of the Hennepin Project Guaranty, in
the case of each of clauses (i) through (iv) pursuant to documentation in
form and substance satisfactory to Agents.
"Hennepin Project Restructuring Conditions" means,
collectively, (i) the consummation of the Hennepin Project Restructuring,
(ii) the amendment of the Hennepin Letters of Credit concurrently with the
consummation of the Hennepin Project Restructuring, to reflect the Hennepin
L/C Amendments, (iii) delivery by Company to Agents of an Officer's
Certificate certifying that the requirements of the Hennepin Project
Restructuring set forth in clauses (i) through (iv) of the definition of
"Hennepin Project Restructuring" have been met and that CHERC and Company
have no outstanding or further obligations to GECC under the agreements
described in clause (ii) of such definition (collectively, the "Terminated
Hennepin Agreements") except for indemnity obligations owed by CHERC (and
guarantied by Company) to GECC against third party claims relating to the
operation by CHERC of the Hennepin Project, which obligations expressly
survive the termination of the relevant agreements, (iv) the waiver of all
claims (except claims for indemnity obligations owed by CHERC to GECC
against third party claims relating to the operation by CHERC of the
Hennepin Project) against Company and its Subsidiaries by GECC arising out
of or related to the Terminated Hennepin Agreements, the acknowledgement by
Hennepin County that it has no current claims against CHERC or Company
arising from the termination of the Terminated Hennepin Agreements, and
delivery of written evidence of such waiver and acknowledgement in form and
substance satisfactory to Agents, and (v) delivery to Agents of written
evidence in form and substance satisfactory to Agents that all claims by
Hennepin County against any Borrower under the Hennepin Project Guaranty or
under the New Service Agreement or otherwise arising out of the Hennepin
Project upon or after consummation of the Hennepin Project Restructuring
shall be treated as general unsecured prepetition claims in the Chapter 11
Cases (subject to Hennepin County's right to draw on the Hennepin Letters of
Credit).
"Hennepin Restructuring Liens" means Liens to be granted by
CHERC on certain spare parts and movable equipment maintained or used at the
Hennepin Project, to secure CHERC's obligations under the New Hennepin
Service Agreement.
"New Hennepin Service Agreement" means an operating or service
agreement between CHERC and Hennepin County, Minnesota relating to the
resource recovery facilities for the Hennepin Project, which service or
operating agreement shall be in form and substance satisfactory to Agents
and shall be substantially similar to the existing service agreement between
CHERC and Hennepin County, except that such agreement between CHERC and
Hennepin County shall provide, among other things, that (i) CHERC shall
credit against the monthly service fee payable by Hennepin County to CHERC
under the New Hennepin Service Agreement an amount equal to $202,000 for
each such month as a "Fee Credit", (ii) in the event of termination of the
New Hennepin Service Agreement due to certain defaults by CHERC, Hennepin
County shall be entitled to draw the entire amount of the Hennepin Letters
of Credit and CHERC shall be required to make an additional payment to
Hennepin County equal to the lesser of $5,000,000 and the aggregate amount
of remaining "Fee Credits" referred to above that would have been applied
under the New Hennepin Service Agreement, but for termination, through June
2010, (iii) CHERC shall, effective upon the effective date of a plan of
reorganization for Company, grant the Hennepin Restructuring Liens, (iv) the
requirements relating to the Hennepin Letters of Credit shall be modified as
set forth in the Hennepin L/C Amendments, (v) Company shall enter into the
Hennepin Project Guaranty, (vi) CHERC shall, subject to the approval of the
Federal Energy Regulatory Commission, assign to Hennepin County its interest
in the power purchase agreement with XCEL Energy Corporation (formerly known
as Northern States Power Company) relating to the Hennepin Project, and
(vii) CHERC shall have no option to purchase the Hennepin Project
facilities.
"Seventh Amendment" means the Seventh Amendment to
Debtor-in-Possession Credit Agreement and Limited Consent by and among
Borrowers, Agents and Lenders, dated as of May 23, 2003.
"Seventh Amendment Effective Date" has the meaning assigned to
that term in Section 2 of the Seventh Amendment.
"Tranche A Letter of Credit Sublimit" means (i) prior to the
Sixth Amendment Effective Date, $14,200,000; (ii) on and after the Sixth
Amendment Effective Date but prior to the Seventh Amendment Effective Date,
$12,200,000; (iii) on and after the Seventh Amendment Effective Date,
$12,200,000 minus (x) immediately upon consummation of the Hennepin Project
Restructuring, $2,098,000 and (y) on any date thereafter, the amount of any
permanent reductions that shall have occurred with respect to the
outstanding face amount of the Hennepin Letter of Credit referred to in
clause (iii) of the definition of "Hennepin Letters of Credit", unless a
greater amount shall be approved in writing by Agents and Requisite Class
Lenders of the Class of Tranche A Lenders (which approval shall be at the
sole discretion of such Agents and Lenders and shall be evidenced by an
amendment to this Agreement in form reasonably satisfactory to Agents and
such Lenders) from time to time upon a request from Borrowers to increase
such amount; provided, however, that no such increase shall cause the
Tranche A Letter of Credit Sublimit to exceed the total amount of the
Tranche A Commitments minus the outstanding amount of Tranche A Loans
(excluding Tranche A Loans made pursuant to subsection 3.3B).
1.2 Provisions Relating to Tranche A Commitments.
Subsection 2.1A(i) of the Credit Agreement is hereby further
amended by adding (immediately prior to the ";" immediately preceding the last
proviso to the second sentence thereof) the following new proviso:
"; provided, further, however, that after the Seventh Amendment
Effective Date, the aggregate amount of the Tranche A Commitments shall
be further reduced by the amount of any reduction to the Tranche A
Letter of Credit Sublimit pursuant to clause (iii) of the definition of
"Tranche A Letter of Credit Sublimit", and the Tranche A Commitments of
Lenders shall be ratably reduced to reflect such reduction in the
aggregate amount of the Tranche A Commitments."
1.3 Provisions Relating to Tranche B Letters of Credit.
Subsection 3.1A of the Credit Agreement is hereby amended by
adding at the end thereof the following new paragraph (iii):
"(iii) Hennepin Letters of Credit. Notwithstanding anything
contained herein to the contrary, (1) the Hennepin Letters of Credit
shall be amended in connection with the consummation of the Hennepin
Project Restructuring to reflect the Hennepin L/C Amendments, (2) such
Hennepin Letters of Credit as so amended shall continue to constitute
Tranche A Letters of Credit or Tranche B Letters of Credit, as the case
may be, for all purposes of this Agreement and the Loan Documents, and
(3) any replacement or extension of any such Tranche B Letter of Credit
shall be deemed to satisfy the requirements of subsection 3.1A(ii)(b)
above if such Tranche B Letter of Credit as so extended or replaced is
substantially identical to the relevant Hennepin Letter of Credit as so
amended."
1.4 Provisions Relating to Affirmative Covenants.
Subsection 6.8B of the Credit Agreement is hereby amended by
adding at the end thereof the following sentence:
"Notwithstanding the foregoing, Borrowers shall be deemed in compliance
with this subsection 6.8B with respect to the Subsidiaries of Company
listed on Schedule 6.8B annexed hereto (if and to the extent that each
or any of such Subsidiaries becomes a Borrower in May 2003) even if
Company (x) fails to comply or fails to timely comply with one or more
requirements set forth in clause (i) of the preceding sentence and/or
(y) fails to deliver or fails to timely deliver an opinion of counsel
with respect to one or more of the matters described in clause (iii) of
the preceding sentence, so long as Company exercises best efforts to
comply with all such requirements and each failure to so comply or
deliver or timely comply or deliver described in clause (x) or (y) is
consented to in writing by Agents in their sole discretion."
1.5 Provisions Relating to Negative Covenants.
A. Subsection 7.2A of the Credit Agreement is hereby amended
by (i) deleting the "and" at the end of paragraph (ix) thereof, (ii) deleting
the "." at the end of paragraph (x) thereof and substituting therefor "; and"
and (iii) adding at the end thereof the following new paragraph (xi):
"(xi) Company and CHERC may enter into an agreement to grant
the Hennepin Restructuring Liens effective upon the effective date of a
plan of reorganization for Company, so long as (a) such agreement is
entered into concurrently with the consummation of the Hennepin Project
Restructuring and (b) the Hennepin Project Restructuring Conditions are
satisfied.".
B. Subsection 7.4 of the Credit Agreement is hereby further
amended by (i) deleting the "and" at the end of paragraph (v) thereof, (ii)
deleting the "." at the end of paragraph (vi) thereof and substituting therefor
"; and" and (iii) adding at the end thereof the following new paragraph (vii):
"(vii) Company may become and remain liable with respect to
the Hennepin Project Guaranty concurrently with the consummation of the
Hennepin Project Restructuring, so long as the Hennepin Project
Restructuring Conditions are satisfied."
C. Subsection 7.7 of the Credit Agreement is hereby amended by
adding immediately after the end of the last sentence thereof the following new
sentence:
"Nothing in this subsection 7.7 shall prohibit Borrowers and their
Subsidiaries from consummating the Hennepin Project Restructuring, so
long as the Hennepin Project Restructuring Conditions are satisfied."
D. Subsection 7.14A of the Credit Agreement is hereby amended
by adding at the end thereof the following new sentence:
"Nothing in this subsection 7.14A shall prohibit Company and its
Subsidiaries, after the Seventh Amendment Effective Date, from
consummating the Hennepin Project Restructuring, so long as the
Hennepin Project Restructuring Conditions are satisfied."
1.6 Provisions Relating to Events of Default.
A. Subsection 8.6 of the Credit Agreement is hereby amended by
adding immediately prior to the ";" at the end thereof the following new
parenthetical phrase:
"(provided, however, that neither the consummation of the Hennepin
Project Restructuring nor the filing of any motion, application or
other petition to effect any order or consent to consummate the
Hennepin Project Restructuring shall constitute an Event of Default
under this subsection 8.6 so long as the Hennepin Project Restructuring
Conditions are satisfied)".
B. Subsection 8.15 of the Credit Agreement is hereby amended
by adding immediately prior to the ":" at the end thereof the following new
parenthetical phrase:
"(provided, however, that the consummation of the Hennepin Project
Restructuring shall not constitute an Event of Default under this
subsection 8.15 so long as the Hennepin Project Restructuring
Conditions are satisfied)".
1.7 Provisions Relating to Schedules.
A. The Credit Agreement is hereby amended by adding thereto a
new Schedule 6.8B in the form attached hereto as Annex A.
B. Immediately upon consummation of the Hennepin Project
Restructuring, Schedule 3.1A(i) to the Credit Agreement shall be amended by
deleting the first of the rows referencing the "Hennepin - WTE - Lease Reserve -
2,098 Annual step up requirement" under the heading "I. Additional L/C
Requirements".
1.8 Limited Consent to Hennepin L/C Amendments.
Each of the undersigned Lenders, both in its capacity as a
Lender and as a Prepetition Lender, hereby (i) consents to the Hennepin L/C
Amendments in connection with consummation of the Hennepin Project
Restructuring, and (ii) acknowledges that the Hennepin L/C Amendments shall in
no way diminish or otherwise affect (x) such Lender's irrevocable participations
in the Hennepin Letters of Credit and in any drawings thereunder purchased
pursuant to subsection 3.1C of the Credit Agreement or (y) such Lender's
obligation to fund its participations in any unreimbursed drawings thereunder in
accordance with the terms applicable to Tranche A Letters of Credit or Tranche B
Letters of Credit, as the case may be, under the Credit Agreement, including
subsection 3.3C thereof, and (iii) acknowledges that the Hennepin Letters of
Credit, as amended by the Hennepin L/C Amendments, shall continue to be, for all
purposes of the Credit Agreement and the other Loan Documents, Tranche A Letters
of Credit or Tranche B Letters of Credit, as the case may be. The consent set
forth in this paragraph shall be limited precisely as written, and this consent
does not constitute, nor should it be construed as, a waiver of compliance by
Borrowers or Lenders with respect to (a) subsection 3.1A(i) or 3.1A(ii) of the
Credit Agreement in any other instance, or (b) any other term, provision or
condition of the Credit Agreement or any other instrument or agreement referred
to therein.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall only become effective upon
the first date on which all of the following conditions precedent shall have
been satisfied (the date of satisfaction of such conditions being referred to
herein as the "Seventh Amendment Effective Date"):
2.1 Payment of Expenses. Borrowers shall have paid in full all
outstanding statements for fees and expenses of O'Melveny & Myers LLP and Ernst
& Young Corporate Finance LLC, to the extent submitted to Company prior to 12:00
Noon (New York City time) on May 30, 2003.
2.2 Bankruptcy Court Approval. The Bankruptcy Court shall have approved
the Hennepin Project Restructuring and the Hennepin L/C Amendments pursuant to
one or more orders in form and substance satisfactory to Agents.
SECTION 3. BORROWERS' 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:
3.1 Corporate Power and Authority. Subject to compliance with the Final
Borrowing Order and any applicable provisions of the Bankruptcy Code, 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
(collectively, the "Amended Agreement").
3.2 Authorization of Agreements. The execution and delivery of this
Amendment have 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 Loan
Party.
3.3 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 Company or any of its Subsidiaries, the Organizational
Documents of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other Government Authority binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation
(which Contractual Obligation is enforceable on a post-Petition Date basis) of
Company or any of its Subsidiaries or an applicable order of the Bankruptcy
Court, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Company or any of its Subsidiaries, or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of Company or any of its Subsidiaries.
3.4 Governmental Consents. The execution and delivery by each Loan
Party of this Amendment and the performance by each Loan Party of the Amended
Agreement do not and will not require any Governmental Authorization.
3.5 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.
3.6 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 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.
3.7 Notice to Committee. Notice of this Amendment has been given to and
received by counsel to the official committee of unsecured creditors in the
Chapter 11 Cases and the informal committee of holders of Company's 9.25%
Debentures.
3.8 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.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
4.1 Each Borrower and Subsidiary Guarantor hereby (i) 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, (ii) ratifies and confirms the effectiveness of the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment and the Sixth Amendment in all respects, and (iii) confirms that the
provisions of the First Amendment, the Second Amendment the Third Amendment, the
Fourth Amendment, the Fifth Amendment and the Sixth Amendment are binding on
each of the Borrowers.
4.2 For the avoidance of doubt, each Borrower and Subsidiary Guarantor
hereby further acknowledges that (i) the Hennepin L/C Amendments shall in no way
diminish or otherwise affect Borrowers' obligation to reimburse any drawings
under the Hennepin Letters of Credit and to pay fees with respect thereto in
accordance with the terms applicable to Tranche B Letters of Credit or Tranche A
Letters of Credit, as the case may be, under the Credit Agreement and the other
Loan Documents, (ii) the Hennepin Letters of Credit, as amended by the Hennepin
L/C Amendments, shall continue to be, for all purposes of the Credit Agreement,
the other Loan Documents and the Borrowing Orders, Tranche B Letters of Credit
or Tranche A Letters of Credit, as the case may be, and (iii) without limiting
the generality of the foregoing, the Obligations of Borrowers with respect to
the Hennepin Letters of Credit, as amended by the Hennepin L/C Amendments, shall
continue to have the same superpriority, allowed administrative expense claim
status as all other Obligations of Borrowers with respect to the Tranche A
Letters of Credit and Tranche B Letters of Credit.
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 Credit Agreement as amended by this Amendment.
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.
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 Section 1 hereof, the
effectiveness of which shall be governed by Section 2) shall become effective
upon the first date on which: (i) Borrowers, each Subsidiary Guarantor and all
Lenders (except that Section 1.4 of this Amendment shall require only Requisite
Lenders) shall have each executed a counterpart hereof, and (ii) Company,
Administrative Agent and Documentation Agent shall have received written or
telephonic notification of such execution and authorization of delivery of such
counterparts.
[Remainder of this page intentionally left blank]
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
--------------------------------
Jeffrey R. Horowitz
Authorized Officer
Each of the entities named on Schedule A
annexed hereto, as Borrowers
By: /s/ Jeffrey R. Horowitz
--------------------------------
Jeffrey R. Horowitz
Authorized Officer
Each of the entities named on Schedule B
annexed hereto, as Borrowers
By: /s/ Scott Mackin
--------------------------------
Scott Mackin
Authorized Officer
SUBSIDIARY GUARANTORS:
Each of the entities named on Schedule C
annexed hereto, as Subsidiary Guarantors
By: /s/ Jeffrey R. Horowitz
--------------------------------
Jeffrey R. Horowitz
Authorized Officer
Each of the entities named on Schedule D
annexed hereto, as Subsidiary Guarantors
By: /s/ Scott Mackin
--------------------------------
Scott Mackin
Authorized Officer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Administrative Agent and Co-Arranger
and as a Lender
By: /s/ Michael R. Heredia
--------------------------------
Michael R. Heredia
Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent and Co-Arranger
and as a Lender
By: /s/ Clark Peterson
--------------------------------
Clark Peterson
Vice President
By: /s/ Robert Wood
--------------------------------
Robert Wood
Director
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By: /s/ A.W. Seidel
--------------------------------
Name: A.W. Seidel
Title: Managing Director
By: /s/ John W. Sweeney
--------------------------------
Name: John W. Sweeney
Title: Director
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES,
as a Lender
By: /s/ Terrence P. Sweeney
--------------------------------
Name: Terrence P. Sweeney
Title: Senior Vice President
By: /s/ Mary Harold
--------------------------------
Name: Mary Harold
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ James B. Hallock
--------------------------------
Name: James B. Hallock
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Joel Thomas
--------------------------------
Name: Joel Thomas
Title: Director
HSBC BANK USA,
as a Lender
By: /s/ Carol A. Kraus
--------------------------------
Name: Carol A. Kraus
Title: Vice President
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan
Bank), as a Lender
By: /s/ Michael Lancia
--------------------------------
Name: Michael Lancia
Title: Vice President
IIB BANK LTD, IFSC BRANCH,
as a Lender
By: /s/ Brian Dunne
--------------------------------
Name: Brian Dunne
Title:
By: /s/ Niall Murray
--------------------------------
Name: Niall Murray
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Lender
By: /s/ David A. Leech
--------------------------------
Name: David A. Leech
Title: Vice President
By: /s/ Shan Chakraborty
--------------------------------
Name: Shan Chakraborty
Title: Assistant Vice President
BANC OF AMERICA SECURITIES LLC, as
Agent for BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Peter Santry
--------------------------------
Name: Peter Santry
Title:
SUNTRUST BANK,
as a Lender
By: /s/ George A. Ways
--------------------------------
Name: George A. Ways
Title: Managing Director
THE BANK OF NEW YORK,
as a Lender
By: /s/ Peter W. Helt
--------------------------------
Name: Peter W. Helt
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Christopher Usas
--------------------------------
Name: Christopher Usas
Title: Director
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ Kelly Smith
--------------------------------
Name: Kelly Smith
Title: Director
By: /s/ Robert Reuter
--------------------------------
Name: Robert Reuter
Title: Executive Director
U.S. BANK NATIONAL ASSOCIATION
(formerly known as Firstar Bank, N.A.),
as a Lender
By: /s/ Alan R. Milster
--------------------------------
Name: Alan R. Milster
Title: Vice President
WESTLB AG (formerly known as Westdeutsche
Landesbank Girozentrale), NEW YORK BRANCH,
as a Lender
By: /s/ Duncan M. Robertson
----------------------------------
Name: Duncan M. Robertson
Title: Director
By: /s/ Alan S. Bookspan
----------------------------------
Name: Alan S. Bookspan
Title: Director
MERRILL LYNCH, PIERCE & SMITH, INCORPORATED,
as a Lender
By: /s/ Graham Goldsmith
------------------------------------
Name: Graham Goldsmith
Title: Managing Director
SPECIAL SITUATIONS INVESTING GROUP, INC.,
as a Lender
By: /s/ Michael Mansour
---------------------------------
Name: Michael Mansour
Title: Authorized Signatory
BEAR STEARNS & CO. INC.,
as a Lender
By: /s/ John E. McDermott
--------------------------------
Name: John E. McDermott
Title: Senior Managing Director
Schedule A
Other Borrowers
1. AMOR 14 Corp.
2. Covanta Acquisition, Inc.
3. Covanta Alexandria/Arlington, Inc.
4. Covanta Babylon, Inc.
5. Covanta Bessemer, Inc.
6. Covanta Bristol, Inc.
7. Covanta Cunningham Environmental Support, Inc.
8. Covanta Energy Americas, Inc.
9. Covanta Energy Construction, Inc.
10. Covanta Energy Resource Corp.
11. Covanta Energy Sao Jeronimo, Inc.
12. Covanta Energy Services, Inc.
13. Covanta Energy West, Inc.
14. Covanta Engineering Services, Inc.
15. Covanta Fairfax, Inc.
16. Covanta Financial Services, Inc.
17. Covanta Geothermal Operations Holdings, Inc.
18. Covanta Geothermal Operations, Inc.
19. Covanta Heber Field Energy, Inc.
20. Covanta Hennepin Energy Resource Co., L.P.
21. Covanta Hillsborough, Inc.
22. Covanta Honolulu Resource Recovery Venture
23. Covanta Huntington Limited Partnership
24. Covanta Huntington Resource Recovery One Corp.
25. Covanta Huntington Resource Recovery Seven Corp.
26. Covanta Huntington, Inc.
27. Covanta Huntsville, Inc.
28. Covanta Hydro Energy, Inc.
29. Covanta Hydro Operations West, Inc.
30. Covanta Hydro Operations, Inc.
31. Covanta Imperial Power Services, Inc.
32. Covanta Indianapolis, Inc.
33. Covanta Kent, Inc.
34. Covanta Key Largo, Inc.
35. Covanta Lake, Inc.
36. Covanta Lancaster, Inc.
37. Covanta Lee, Inc.
38. Covanta Long Island, Inc.
39. Covanta Marion Land Corp.
40. Covanta Marion, Inc.
41. Covanta Mid-Conn., Inc.
42. Covanta Montgomery, Inc.
43. Covanta New Martinsville Hydro-Operations Corp.
44. Covanta Northwest Puerto Rico, Inc.
45. Covanta Oahu Waste Energy Recovery, Inc.
46. Covanta Oil & Gas, Inc.
47. Covanta Onondaga Five Corp.
48. Covanta Onondaga Four Corp.
49. Covanta Onondaga Limited Partnership
50. Covanta Onondaga Operations, Inc.
51. Covanta Onondaga Three Corp.
52. Covanta Onondaga Two Corp.
53. Covanta Onondaga, Inc.
54. Ogden Services Corporation
55. Covanta Operations of Union LLC
56. Covanta OPW Associates, Inc.
57. Covanta OPWH, Inc.
58. Covanta Pasco, Inc.
59. Covanta Plant Services of New Jersey, Inc.
60. Covanta Power Development of Bolivia, Inc.
61. Covanta Power Development, Inc.
62. Covanta Power Equity Corp.
63. Covanta Projects of Hawaii, Inc.
64. Covanta Projects of Wallingford, LP
65. Covanta RRS Holdings, Inc.
66. Covanta Secure Services USA, Inc.
67. Covanta Secure Services, Inc.
68. Covanta SIGC Energy II, Inc.
69. Covanta SIGC Energy, Inc.
70. Covanta SIGC Geothermal Operations, Inc.
71. Covanta Stanislaus, Inc.
72. Covanta Systems, Inc.
73. Covanta Tampa Bay, Inc.
74. Covanta Tulsa, Inc.
75. Covanta Union, Inc.
76. Covanta Wallingford Associates, Inc.
77. Covanta Warren Energy Resources Co., LP
78. Covanta Waste Solutions, Inc.
79. Covanta Waste to Energy of Italy, Inc.
80. Covanta Waste to Energy, Inc.
81. Covanta Water Holdings, Inc.
82. Covanta Water Systems, Inc.
83. Covanta Water Treatment Services, Inc.
84. DSS Environmental, Inc.
85. ERC Energy II, Inc.
86. ERC Energy, Inc.
87. Heber Field Company
88. Heber Field Energy II, Inc.
89. Heber Geothermal Company
90. Heber Loan Partners
91. J.R. Jacks Construction Corp.
92. Ogden Constructors, Inc.
93. Ogden Environmental & Energy Services Co., Inc.
94. OPI Quezon, Inc.
95. Second Imperial Geothermal Co., L.P.
96. Three Mountain Operations, Inc.
97. Three Mountain Power LLC
Schedule B
Other Borrowers
1. Ogden Facility Management Corporation of Anaheim
2. LaGuardia Fuel Facilities Corp.
3. Lenzar Electro-Optics, Inc.
4. Newark Automotive Fuel Facilities Corporation, Inc.
5. Ogden Allied Abatement & Decontamination Service, Inc.
6. Ogden Allied Maintenance Corp.
7. Ogden Allied Payroll Services, Inc.
8. Ogden Attractions, Inc.
9. Aviation Distributing Corp.
10. Ogden Aviation Fueling Company of Virginia, Inc.
11. Ogden Aviation Service Company of Colorado, Inc.
12. Ogden Aviation Service Company of New Jersey, Inc.
13. Ogden Aviation Service Company of New York, Inc.
14. Ogden Aviation Service Company of Pennsylvania, Inc.
15. Ogden Aviation Service International Corporation
16. Ogden Aviation, Inc.
17. Ogden Cargo Spain, Inc.
18. Ogden Central and South America, Inc.
19. Ogden Facility Holdings, Inc.
20. Ogden Film and Theatre, Inc.
21. Ogden Firehole Entertainment Corp.
22. Ogden International Europe, Inc.
23. Ogden New York Services, Inc.
24. Ogden Support Services, Inc.
25. PA Aviation Fuel Holdings, Inc.
26. Philadelphia Fuel Facilities Corporation
Schedule C
Subsidiary Guarantors
1. Covanta Energy Group, Inc.
2. Covanta Energy International, Inc.
3. Covanta Equity of Stanislaus, Inc.
4. Covanta Haverhill Properties, Inc.
5. Covanta Haverhill, Inc.
6. Covanta Omega Lease, Inc.
7. Covanta Power International Holdings, Inc.
8. Covanta Projects, Inc.
9. Haverhill Power, Inc.
10. LMI, Inc. 11. Michigan Waste Energy, Inc.
12. OFS Equity of Alexandria/Arlington, Inc.
13. OFS Equity of Babylon, Inc.
14. OFS Equity of Delaware, Inc.
15. OFS Equity of Huntington, Inc.
16. OFS Equity of Indianapolis, Inc.
17. OFS Equity of Stanislaus, Inc.
18. Ogden Management Services, Inc.
19. Covanta Equity of Alexandria/Arlington, Inc.
Schedule D
Subsidiary Guarantors
1. Ogden Technology Services Corporation
2. Ogden Transition Corporation
Annex A
Schedule 6.8B
1. Alpine Food Products, Inc.
2. BDC Liquidating Corp.
3. Bouldin Development Corp.
4. Covanta Energy Group, Inc.
5. Covanta Energy International, Inc.
6. Covanta Equity of Alexandria/Arlington, Inc.
7. Covanta Equity of Stanislaus, Inc.
8. Covanta New Martinsville Hydroelectric Corp.
9. Covanta Power International Holdings, Inc.
10. Covanta Projects, Inc.
11. Doggie Diner, Inc.
12. Gulf Coast Catering Company, Inc.
13. Logistics Operations, Inc.
14. Offshore Food Service, Inc.
15. OFS Equity of Alexandria/Arlington, Inc.
16. OFS Equity of Babylon, Inc.
17. OFS Equity of Delaware, Inc.
18. OFS Equity of Huntington, Inc.
19. OFS Equity of Indianapolis, Inc.
20. OFS Equity of Stanislaus, Inc.
21. Ogden Aviation Security Services of Indiana, Inc.
22. Ogden Aviation Terminal Services, Inc.
23. Ogden Cisco, Inc.
24. Ogden Communications, Inc.
25. Ogden Facility Management Corporation of West Virginia
26. Ogden Food Service Corporation of Indiana, Inc.
27. Ogden Food Service Corporation of Milwaukee, Inc.
28. Ogden Leisure, Inc.
29. Ogden Management Services, Inc.
30. Ogden MEI, LLC
31. Ogden Pipeline Service Corporation
32. Ogden Technology Services Corporation
33. Ogden Transition Corporation
Annex B
Form of Hennepin L/C Amendments
See attached.