Exhibit 10.1(w)
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, herein
called this "AGREEMENT") is dated as of March 10, 2004 and entered into by and
among COVANTA POWER INTERNATIONAL HOLDINGS, INC., a Delaware corporation ("CPIH"
or "COMPANY"), and THE SUBSIDIARIES OF CPIH LISTED ON THE SIGNATURE PAGES HEREOF
AS REVOLVER BORROWERS (together with Company, collectively, "REVOLVER BORROWERS"
and each a "REVOLVER BORROWER") and THE SUBSIDIARIES OF CPIH LISTED ON THE
SIGNATURE PAGES HEREOF AS TERM LOAN BORROWERS (together with Company,
collectively, "TERM LOAN BORROWERS" and each a "TERM LOAN BORROWER"; the
Revolver Borrowers together with the Term Loan Borrowers, collectively,
"BORROWERS" and each a "BORROWER"); COVANTA ENERGY AMERICAS, INC., a Delaware
corporation ("CEA"); THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES
HEREOF AS REVOLVER LENDERS (each, in its capacity as a Revolver Lender, together
with any other Person (this and other capitalized terms used herein without
definition being used as defined in subsection 1.1) that becomes a party hereto
as a Revolver Lender pursuant to subsection 6.1(f), individually referred to
herein as a "REVOLVER LENDER" and collectively as "REVOLVER LENDERS"); THE
PERSONS IDENTIFIED AS TERM LOAN LENDERS ON THE SIGNATURE PAGES HEREOF (each, in
its capacity as a Term Loan Lender, together with any other Person that becomes
a party hereto as a Term Loan Lender pursuant to subsection 6.1(f) or subsection
7.1(c), individually referred to herein as a "TERM LOAN LENDER" and collectively
as "TERM LOAN LENDERS"); BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as
administrative agent for Term Loan Lenders (and any successor, administrative
agent for Term Loan Lenders pursuant to the Term Loan Agreement, in such
capacity "TERM LOAN AGENT"), as Collateral Agent and as Cash Management Bank;
DEUTSCHE BANK SECURITIES, INC., as documentation agent for Term Loan Lenders
(and any successor documentation agent for the Term Loan Lenders pursuant to the
Term Loan Agreement, in such capacity "TERM LOAN DOCUMENTATION AGENT"); DEUTSCHE
BANK AG, NEW YORK BRANCH, as administrative agent for Revolver Lenders (and any
successor administrative agent for Revolver Lenders pursuant to the Revolver
Credit Agreement, in such capacity "REVOLVER AGENT"); U.S. BANK NATIONAL
ASSOCIATION, in its capacity as agent for the holders of the Prepetition
Unsecured Claims Participation Interest pursuant to the Plan of Reorganization
(in such capacity, the "PREPETITION UNSECURED CLAIMS Agent"); THE COMPANIES
LISTED ON THE SIGNATURE PAGES HEREOF AS MANAGEMENT SERVICES AND REIMBURSEMENT
AGREEMENT BENEFICIARIES (the "MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT
BENEFICIARIES"); THE COMPANIES LISTED ON THE SIGNATURE PAGES HEREOF AS
MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT OBLIGORS (the "MANAGEMENT
SERVICES AND REIMBURSEMENT AGREEMENT OBLIGORS") and the other Persons who may
become parties to this Agreement from time to time pursuant to and in accordance
with subsections 6.1(f) of this Agreement; WELLS FARGO BANK, N.A., as Debenture
Disbursing Agent; and U.S. BANK NATIONAL ASSOCIATION, as Allowed Class 6
Disbursing Agent.
R E C I T A L S
WHEREAS, the Borrowers have proposed, their creditors have approved,
and the Bankruptcy Court has confirmed, the Plan of Reorganization;
WHEREAS, in connection with the Plan of Reorganization,
simultaneously herewith the Borrowers have received financing pursuant to the
Term Loan Agreement and Revolver Credit Agreement;
WHEREAS, it is a condition precedent to (i) the obligations of
Revolver Lenders to enter into and extend credit under the Revolver Credit
Agreement, (ii) the obligations of Term Loan Lenders to enter into and extend
credit under the Term Loan Agreement, (iii) the obligations of Management
Services and Reimbursement Agreement Beneficiaries to enter into the Management
Services and Reimbursement Agreement and (iv) the effectiveness of the Plan of
Reorganization, as applicable, that each Party shall have executed and delivered
this Agreement to the Collateral Agent;
WHEREAS, on the date hereof Loan Parties have executed and delivered
to Collateral Agent the Collateral Documents pursuant to which Loan Parties
granted a security interest in the Collateral as security for (i) in the case of
Revolver Borrowers, all Obligations of Revolver Borrowers under and in respect
of the Revolver Credit Agreement and all other Revolver Documents to which
Revolver Borrowers are a party to from time to time, in each case as described
therein, and (ii) in the case of Term Loan Borrowers, all Obligations of Term
Loan Borrowers under and in respect of the Term Loan Agreement and all other
Term Loan Documents to which Term Loan Borrowers are party to from time to time,
in each case as described therein;
WHEREAS, Creditor Parties desire to set forth certain provisions
regarding the appointment, duties and responsibilities of Collateral Agent and
to set forth certain other provisions concerning the obligations of Loan Parties
to Creditor Parties under the agreements referred to in the foregoing recitals;
and
WHEREAS, Creditor Parties wish to set forth their mutual intentions
as to certain matters relating to the exercise of remedies with respect to the
Collateral and payments made by or for the account of the applicable Loan
Parties under the Credit Documents as more fully set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION I
1.1 DEFINITIONS. Terms used in the Agreement have the meanings set
forth in the introduction and recitals hereto. In addition, the following terms
shall have the following meanings:
"ADDITIONAL INTEREST LOANS" means "Additional Interest Loans" as
such term is defined in the Term Loan Agreement.
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"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person (other than exclusively as a result of such Person's
role as a senior executive of that Person or Project manager or operator),
whether through the ownership of voting securities or by contract or otherwise.
"AGENTS" means Collateral Agent, Term Loan Agents and Revolver
Agent.
"AGGREGATE NET SALES PROCEEDS" means (i) Net Asset Sales Proceeds
and (ii) Proceeds received by Collateral Agent in connection with the
foreclosure or other disposition of Collateral in connection with any
Enforcement Action.
"ALLOWED CLASS 6 CLAIMS" means "Allowed Class 6 Claims" as such term
is defined in the Approved Plan of Reorganization.
"ALLOWED CLASS 6 CLOSING DATE" means the date on which the
Bankruptcy Court shall have entered the Allowed Class 6 Disbursing Agent
Authorization Order.
"ALLOWED CLASS 6 DISBURSING AGENT" means U.S. Bank National
Association, in its capacity as disbursing agent for the holders of the Allowed
Class 6 Claims, and each of its successors, under the Approved Plan of
Reorganization, Confirmation Order, the Allowed Class 6 Disbursing Agent
Authorization Order, and the agency agreement relating thereto to be entered
into on or after the Closing Date.
"ALLOWED CLASS 6 DISBURSING AGENT AUTHORIZATION ORDER" means an
order or orders of the Bankruptcy Court authorizing U.S. Bank National
Association to enter into this Agreement as a Term Loan Lender and to serve as
the Allowed Class 6 Disbursing Agent with respect to Term Loans allocable to the
Allowed Class 6 Disbursing Agent as described in the first sentence of
subsection 9.25A(i) of the Term Loan Agreement.
"ALLOWED CLASS 6 INTEREST" means, with respect to any Non-Confirming
Holder, (i) prior to the Closing Date, an Allowed Class 6 Claim of such
Non-Confirming Holder, and (ii) on and after the Closing Date, the interest held
by such Non-Confirming Holder in any Term Loan distributed on the Allowed 6
Closing Date or the Determination Date to the Allowed Class 6 Disbursing Agent.
"APPROVED OPERATING EXPENSES" means, as at any date of
determination, the following operating expenses of Company and its Domestic
Subsidiaries: (i) payments then due and payable by Company to Covanta pursuant
Sections 2, 3, and 4(a) of the Management Services and Reimbursement Agreement,
(ii) amounts then due and payable to DHC pursuant to Section 6 of the DHC Tax
Sharing Agreement, and (iii) fees and expenses then due and payable to senior
executive management of Company (including any success-based fees). "Approved
Operating Expenses" shall not include any Management Services and Reimbursement
Agreement Obligations or operating expenses directly related to any Project
(other than
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operating expenses related to a Project and payable to Management Services and
Reimbursement Agreement Beneficiaries pursuant to the Management Services and
Reimbursement Agreement).
"APPROVED PLAN OF REORGANIZATION" means the Plan of Reorganization
and all amendments, modifications, revisions and restatements thereof, if any,
approved by the creditors of Borrowers in requisite number and percentage, and
confirmed by the Bankruptcy Court pursuant to the Confirmation Order and
delivered to Revolver Agents and Term Loan Agents.
"ASSET SALE" means (A) the sale by CEA of any of the Capital Stock
of Company to any Person or (B) the sale by Company or any of its Subsidiaries
to any Person of (i) any of the Capital Stock of any of Company's Subsidiaries,
(ii) substantially all of the assets of any division or line of business of
Company or any of its Subsidiaries, or (iii) any other assets (whether tangible
or intangible) of Company or any of its Subsidiaries (other than (a) inventory
sold in the ordinary course of business and (b) any such other assets to the
extent that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $250,000 or less and the aggregate
value of all such other assets since the Closing Date is equal to $1,000,000 or
less, in each case so long as not less than 90% of the consideration received
for such assets shall be cash); provided, however, that Asset Sales shall not
include (1) any sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof (provided, that sales and discounts of
not more than $2,000,000 in the aggregate in face value of accounts receivable
may be excluded from Asset Sales pursuant to this clause (1), and the sole
consideration received in connection with any such sale of accounts receivable
shall be cash), (2) any sale or exchange of specific items of equipment, so long
as the purpose of each such sale or exchange is to acquire (and results within
120 days of such sale or exchange in the acquisition of) replacement items of
equipment which are the functional equivalent of the item of equipment so sold
or exchanged (provided, that any cash received in connection with any such sale
or exchange, to the extent in excess of the amounts set forth in clause (b) of
this definition, shall be deemed cash proceeds of an Asset Sale), (3) disposals
of obsolete, worn out or surplus property in the ordinary course of business
(provided, that not less than 75% of the consideration, if any, received in
connection with any such disposal shall be cash, and any such cash received, to
the extent in excess of the amounts set forth in clause (b) of this definition,
shall be deemed cash proceeds of an Asset Sale), or (4) any discount or
compromise of notes or accounts receivable for less than the face value thereof,
to the extent Company deems necessary in order to resolve disputes that occur in
the ordinary course of business or (5) any sale of shares in the Madurai Project
Entity permitted under subsection 6.7(vi) of each Credit Agreement.
"BANK OF AMERICA" shall have the meaning assigned to that term in
the introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for the
Southern District of New York and any other court properly exercising
jurisdiction over any relevant Chapter 11 Case.
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"BANKRUPTCY EVENT" means any of one or more of the following events
regardless of the reason therefor:
(a) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Loan Party in an involuntary
case under the Bankruptcy Code or any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable
federal, or state law; or (ii) an involuntary case shall be commenced
against any Loan Party under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over any Loan Party, or over all or a substantial
part of its property, shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of any Loan
Party for all or a substantial part of its property; or the issuance of a
warrant of attachment, execution or similar process against any
substantial part of the property of any Loan Party, and the continuance of
any such event in clause (ii) for 60 days unless dismissed, bonded or
discharged; or
(b) (i) any Loan Party shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or
a substantial part of its property, or shall make any assignment for the
benefit of creditors; or
(ii) the inability or failure of any Loan Party, or the admission by
any Loan Party in writing of its inability, to pay its debts as such debts
become due; or the Governing Body (or any committee thereof) of any Loan
Party adopts any resolution or otherwise authorizes action to approve any
of the actions referred to in clause (i) or this clause (ii); or
(c) any order, judgment or decree shall be entered against any Loan
Party decreeing the dissolution, winding up or split up of that Loan Party
and such order shall remain undischarged or unstayed for a period in
excess of 30 days.
"BANKRUPTCY PROCEEDING" means any case or proceeding of the type
described in the definition of "Bankruptcy Event" with respect to any Loan
Party.
"BORROWER" and "BORROWERS" shall have the meaning assigned to such
terms in the introduction to this Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York, the State of
Texas or the State of California or is a day on which banking institutions
located in any such state are authorized or required by law or other
governmental action to close.
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"CAPITAL STOCK" means the capital stock or other equity interests of
a Person.
"CASH MANAGEMENT BANK" shall have the meaning assigned to that term
in the definition of "Cash Management System".
"CASH MANAGEMENT OBLIGATIONS" means the obligations of Borrowers to
the Cash Management Bank arising from or relating to the Cash Management System
including any liability of Borrower on any claim arising out of or relating to
the Cash Management System, whether or not the right to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed or
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any bankruptcy, insolvency, reorganization or other similar
proceeding.
"CASH MANAGEMENT SYSTEM" means the cash management system of Company
and its Subsidiaries in the United States maintained with Bank of America (in
such capacity, "CASH MANAGEMENT BANK") as described in Schedule 3.1P annexed to
each Credit Agreement, as such Cash Management System may be modified pursuant
to subsection 5.10 of each Credit Agreement, and any other related services
provided by Cash Management Bank to Company and its Subsidiaries, including
treasury, depositary and cash management services or in connection with
automated clearing house transfers of funds.
"CASH ON HAND" means, as of any date of determination, the aggregate
amounts on deposit in the Cash Management System in the United States as of the
close of business on the preceding Business Day.
"CEA" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CEA STOCK PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered by CEA on the Closing Date, substantially in the form of Exhibit VIII
annexed to the Term Loan Agreement (it being understood that such Pledge
Agreement shall contain a covenant requiring CEA to pay to Collateral Agent any
proceeds received by it from or in connection with the sale of any of the common
stock of Company to any Person), as such Pledge Agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted pursuant to subsection 2.4.
"CLOSING DATE" means March 10, 2004.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) and interests in property now owned or
hereafter acquired by any Loan Party in or upon which a security interest, Lien
or mortgage is granted or purported to be granted to Collateral Agent pursuant
to the Collateral Documents, including Proceeds thereof.
"COLLATERAL AGENT" shall have the meaning assigned to that term in
subsection 2.1.
"COLLATERAL DOCUMENTS" means the Security Agreement, any foreign
pledge agreements, Control Agreements, Mortgages (as defined in the Credit
Agreements), CEA Stock
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Pledge Agreement and all other instruments or documents (pursuant to which a
Lien to secure all or any portion of the Secured Obligations is purported or
intended to be created, granted, evidenced or perfected) delivered from time to
time by any Loan Party pursuant to the Credit Agreements or any other Revolver
Document or Term Loan Document, in each case in order to grant to Collateral
Agent a Lien on any real, personal or mixed property as security for any or all
of the Secured Obligations, as such instruments and documents may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted pursuant to subsection 2.4.
"COMPANY" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CONFIRMATION ORDER" means the Findings of Fact, Conclusions of Law
and Order under 11 U.S.C. Section 1129 and Rule 3020 of the Federal Rules of
Bankruptcy Procedure Confirming Debtors' Second Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code entered by the Bankruptcy Court on March
5, 2004 in the Chapter 11 Cases, without modification, revision or amendment.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL AGREEMENT" means an agreement, satisfactory in form and
substance to Revolver Agent and Term Loan Agent and executed by the financial
institution or securities intermediary at which a Deposit Account or a
Securities Account, as the case may be, is maintained, pursuant to which such
financial institution or securities intermediary confirms and acknowledges
Collateral Agent's security interest in such account, and agrees that the
financial institution or securities intermediary, as the case may be, will
comply with instructions originated by Collateral Agent as to disposition of
funds in such account, without further consent by Company or any Subsidiary, as
such agreement may be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted pursuant to subsection 2.4.
"COVANTA" means Covanta Energy Corporation, a Delaware
corporation.
"CREDIT AGREEMENTS" means the Term Loan Agreement and Revolver
Credit Agreement.
"CREDIT DOCUMENTS" means, collectively, (i) the Term Loan Agreement
and the other Term Loan Documents, (ii) the Revolver Credit Agreement and the
other Revolver Documents, and (iii) the Management Services and Reimbursement
Agreement, in each case as they may be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted thereunder and
pursuant to subsection 2.5.
"CREDITOR OBLIGATIONS" means, collectively, the Approved Operating
Expenses, Revolver Loan Obligations, Term Loan Obligations, Management Services
and Reimbursement Agreement Obligations, Cash Management Obligations, and
Prepetition Unsecured Claims Participation Interest.
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"CREDITOR PARTIES" means Collateral Agent, Revolver Agent, Term Loan
Agents, Revolver Lenders, Term Loan Lenders, Cash Management Bank, Prepetition
Unsecured Claims Agent and Management Services and Reimbursement Agreement
Beneficiaries.
"DEBENTURE CLOSING DATE" means the date on which the Bankruptcy
Court shall have entered the Debenture Disbursing Agent Authorization Order.
"DEBENTURE DISBURSING AGENT" means Wells Fargo Bank, N.A., in its
capacity as disbursing agent for the holders of the 9.25% Debentures, and each
of its successors, under the Approved Plan of Reorganization, the Confirmation
Order, the Debenture Disbursing Agent Authorization Order and the disbursing
agreement relating thereto to be entered into on or after the Closing Date.
"DEBENTURE DISBURSING AGENT AUTHORIZATION ORDER" means an order or
orders of the Bankruptcy Court authorizing Wells Fargo Bank, N.A. to enter into
this Agreement as a Term Loan Lender and to serve as the Debenture Disbursing
Agent with respect to Term Loans allocable to the Debenture Disbursing Agent as
described in the first sentence of subsection 9.25A(i) of the Term Loan
Agreement.
"DEBENTURE INTEREST" means, with respect to any Non-Confirming
Holder, (i) prior to the Debenture Closing Date, the claim in respect of the
9.25% Debentures held by such Non-Confirming Holder, and (ii) on and after the
Debenture Closing Date, the interest held by such Non-Confirming Holder in any
Term Loan distributed on the Debenture Closing Date or the Determination Date to
the Debenture Disbursing Agent; provided, however, that any Debenture Interest
shall cease to be a Debenture Interest at such time that the Non-Confirming
Holder with respect thereto shall become a Lender in accordance with subsection
9.25 of the Term Loan Agreement.
"DETERMINATION DATE" means the "Determination Date" as defined in
the Approved Plan of Reorganization.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or similar
account maintained with a Person engaged in the business of banking, including a
savings bank, savings and loan association, credit union or trust company.
"DHC" means Danielson Holding Corporation, a Delaware corporation.
"DHC TAX SHARING AGREEMENT" means the tax sharing agreement entered
into by DHC, Company and Covanta on the Closing Date, as such agreement may be
amended, restated supplemented or otherwise modified from time to time to the
extent permitted thereunder and pursuant to subsection 2.5(a).
"DISBURSING AGENT" means either Debenture Disbursing Agent or
Allowed Class 6 Disbursing Agent, and "DISBURSING AGENTS" means each of them.
"DISTRIBUTION" means, with respect to any Creditor Obligation, (a)
any payment or distribution by Covanta or any of its Subsidiaries of cash,
securities or other assets and properties of any kind whatsoever, real or
personal, tangible or intangible, or mixed, whether
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now owned or existing or hereafter acquired or arising and wheresoever located,
by set-off or otherwise, on account of such Creditor Obligation, (b) any
redemption, purchase or other acquisition of such Creditor Obligation by Covanta
or any of its Subsidiaries or (c) the granting of any Lien to or for the benefit
of the holders of such Creditor Obligation in or upon any or all assets and
properties of any kind whatsoever, real or personal, tangible or intangible, or
mixed, whether now owned or existing or hereafter acquired or arising and
wheresoever located of Covanta or any of its Subsidiaries.
"DOMESTIC SUBSIDIARY" means any Subsidiary of any Borrower that is
incorporated or organized under the laws of the United States, any state thereof
or in the District of Columbia.
"ENFORCEMENT ACTION" shall mean the exercise by any Secured Party of
any of the enforcement rights and remedies under, and subject to the provisions
of, the Collateral Documents at any time on or after an Event of Default,
including any or all of the following: any motion to vacate any stay on
enforcement of the Liens on the Collateral, solicitation of bids from third
parties to conduct the liquidation of Collateral, the engagement or retention of
third parties for the purposes of marketing, promoting or selling all or any
Collateral, the commencement of any action to foreclose on the Liens on any of
the Collateral, notification of account debtors to make payments to any Secured
Party or its agents, any action to take possession of any Collateral or
otherwise in connection with the preservation or protection of any of the
Collateral, its value or any rights or remedies therein or otherwise or as may
be deemed necessary or appropriate to enhance the likelihood or maximize the
repayment of the Secured Obligations.
"EVENT OF DEFAULT" means a Revolver Event of Default and/or a Term
Loan Event of Default.
"EXISTING IPP INTERNATIONAL PROJECT GUARANTIES" means, collectively,
(i) the existing guaranty by Covanta Energy Group of the obligations of certain
Subsidiaries of Company under certain agreements relating to the Haripur
Project, the Samalpatti Project and the Trezzo Project, (ii) the existing
guaranty by Covanta Projects, Inc. of the obligations of certain Subsidiaries of
Company under certain agreements relating to the Quezon Project, and (iii) the
existing guaranty by Covanta of the obligations certain Subsidiaries of Company
under certain agreements relating to the Balaji/Madurai Project and the LICA
Project, as each such guaranty may be amended, restated, supplemented or
otherwise modified to the extent permitted pursuant to subsection 2.5(a).
"GOVERNING BODY" means the board of directors or other body having
the power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"GROSS RECEIPTS" means, in respect of any Asset Sale, the total cash
payments (including any cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale minus any repayment of debt related to
the assets sold in such Asset Sale which is made in connection with such Asset
Sale and is not prohibited under the Revolver Credit Agreement and Term Loan
Agreement.
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"JUNIOR CREDITOR" shall have the meaning assigned to that term in
subsection 4.2(e).
"LENDERS" means Term Loan Lenders and Revolver Lenders.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN PARTIES" means Company, the other Borrowers, CEA, and
Management Services and Reimbursement Agreement Obligors.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT" means the
management services and reimbursement agreement entered into by Company and
Covanta and certain of their respective Subsidiaries on the Closing Date, in
form and substance satisfactory to Revolver Agent and Term Loan Agents as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time to the extent permitted thereunder and pursuant to subsection 2.5(a).
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT Beneficiaries"
shall have the meaning assigned to that term in the introduction to this
Agreement.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT OBLIGATIONS" means,
as at any date of determination, the obligations of Management Services and
Reimbursement Agreement Obligors then due and payable under Section 4(b) of the
Management Services and Reimbursement Agreement; provided, however, that no such
obligations shall be included in "Management Services and Reimbursement
Agreement Obligations" if such obligation arises as a result of (i) any action
or inaction by Covanta or any of its Subsidiaries (other than Company and its
Subsidiaries), not triggered by a failure to perform by Company or any of its
Subsidiaries or (ii) the failure of any Management Services and Reimbursement
Agreement Beneficiary to renew, replace or extend, or cause the renewal,
replacement or extension of, a Letter of Credit (as defined in the Management
Services and Reimbursement Agreement); provided, however that the letter of
credit dated February 28, 1999 issued by Citibank, N.A. to secure an obligation
of NEPC Consortium Ltd. under certain Haripur project documents, and any
renewal, replacement or extension of such letter of credit, shall in each case
be excluded under this clause (ii) to the extent such letter of credit is not
renewed, replaced or extended as a result of (x) the refusal of the issuer
thereof (or any other proposed issuer acceptable to the beneficiary thereof) to
so renew, replace or extend such letter of credit on an unsecured basis or (y)
the failure of any other account party thereunder to satisfy any condition
precedent imposed by the issuer thereof (or any other proposed issuer acceptable
to the beneficiary thereof) to such renewal, replacement or extension.
"MANAGEMENT SERVICES AND REIMBURSEMENT AGREEMENT OBLIGORS" shall
have the meaning assigned to that term in the introduction to this Agreement.
"MANDATORY PAYMENTS" means any amount described in subsections
2.4A(iii)(a)-(e) of the Revolver Credit Agreement and subsections
2.4A(ii)(a)-(e) of
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the Term Loan Agreement to be applied as a prepayment of the Term Loans and/or
the Revolver Loans and/or a permanent reduction of the Revolver Loan
Commitments.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
Gross Receipts received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable prior to the earlier of (a) the date
which is eighteen months from the date of such Asset Sale and (b) the Maturity
Date as a result of any gain recognized in connection with such Asset Sale, (ii)
additional Taxes actually payable upon the closing of such Asset Sale (including
any transfer Taxes or Taxes on gross receipts), (iii) actual, reasonable and
documented out-of-pocket fees and expenses (including reasonable legal fees,
reasonable fees to advisors and severance costs that are due (pursuant to a
Contractual Obligation of Company or any of its Subsidiaries in effect prior to
such Asset Sale or pursuant to applicable law) and payable immediately upon
consummation of such Asset Sale to employees of Company and its Subsidiaries
that are terminated as a result thereof) paid to Persons other than Company and
its Subsidiaries and their respective Affiliates in connection with such Asset
Sale (including fees necessary to obtain any required consents of such Persons
to such Asset Sale), and (iv) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any indebtedness (other than
Revolver Loans and Term Loans) that is (x) secured by a valid, enforceable and
perfected Lien on the stock or assets in question that is permitted under
subsection 6.2 of each Credit Agreement and (y) required to be repaid under the
terms of such indebtedness as a result of such Asset Sale (without duplication
of amounts deducted in calculating the Gross Receipts from such Asset Sale) and
is permitted to be paid under the Credit Documents.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any cash payments or
Proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of (a)
income taxes reasonably estimated to be actually payable prior to the earlier of
(1) the date which is eighteen months from the date of such receipt and (2)
March 10, 2007 as a result of the receipt of such payments of proceeds and (b)
any actual, reasonable and documented out-of-pocket fees and expenses (including
reasonable legal fees, reasonable fees to advisors and severance costs that are
due (pursuant to a Contractual Obligation, or written employment policy
applicable to terminated employees generally, of Company or any of its
Subsidiaries in effect prior to the event causing or relating to the payment
referred to in clause (i) or (ii) hereof or pursuant to applicable law) and
payable on or prior to the receipt of such payment or proceeds to employees of
Company and its Subsidiaries that have been terminated as a result of the
relevant loss, taking or sale) paid to Persons other than Company and its
Subsidiaries and their respective Affiliates in connection with the relevant
loss, taking or sale or the adjustment or settlement of any claims of Company or
such Subsidiary in respect thereof; provided, however, that Net
Insurance/Condemnation Proceeds shall be reduced in an amount equal to the
amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to Contractual Obligations in effect on the Closing Date, or which were
entered into after the Closing Date with respect to the financing or acquisition
of a Project, to use for purposes other than application pursuant to subsection
4.1(b).
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"9.25% DEBENTURES" means the "9.25% Debenture Claims" as such term
is defined in the Approved Plan of Reorganization.
"NON-CONFIRMING HOLDER" means, on any date of determination, a
Person that holds on such date a Debenture Interest or an Allowed Class 6
Interest in Term Loans initially allocable in accordance with subsection
9.25A(i) of the Term Loan Agreement to the Debenture Disbursing Agent or the
Allowed Class 6 Disbursing Agent, respectively.
"OBLIGATIONS" means all obligations of every nature of Loan Parties
under the Credit Documents, including any liability of such Loan Party on any
claim arising out of or relating to the Credit Documents, whether or not the
right to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed or contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any bankruptcy, insolvency, reorganization or
other similar proceeding. Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Credit Documents include (a) the
obligation to pay principal, interest (including all interest which accrues
after the commencement of any case or proceeding in bankruptcy after the
insolvency of, or for the reorganization of, any Loan Party, whether or not
allowed in such case or proceeding), charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Borrower and any
other Loan Party under any Credit Document and (b) the obligation to reimburse
any amount in respect of any of the foregoing that any Agent or any Lender, in
its sole discretion, may elect to pay or advance on behalf of such Borrower or
other Loan Party; provided, that nothing in this definition shall be construed
as creating any obligations of DHC under the Credit Documents that are not
expressly set forth in such Credit Documents.
"OFFICER'S CERTIFICATE" means, as applied to any Person that is a
corporation, partnership, trust or limited liability company, a certificate
executed on behalf of such Person by one or more Officers of such Person or one
or more Officers of a general partner or a managing member if such general
partner or managing member is a corporation, partnership, trust or limited
liability company.
"PAYMENT IN FULL" and "PAID IN FULL" means (i) as to the Revolver
Loan Obligations, the payment and satisfaction in full in immediately available
funds of all of such Revolver Loan Obligations and, other than for purposes of
subsection 4.2(a), the termination of all Revolver Loan Commitments, (ii) as to
the Term Loan Obligations, the payment and satisfaction in full in immediately
available funds of all of such Term Loan Obligations and the termination of the
Term Loan Commitments, (iii) as to the Approved Operating Expenses, the payment
in full in immediately available funds of all such Approved Operating Expenses
to the extent then due and payable, (iv) as to the Management Services and
Reimbursement Agreement Obligations, the payment and satisfaction in full in
immediately available funds of all of such Management Services and Reimbursement
Agreement Obligations to the extent then due and payable pursuant to the
Management Services and Reimbursement Agreement, (v) as to any amounts payable
hereunder with respect to the Prepetition Unsecured Claims Participation
Interest, the payment to Prepetition Unsecured Claims Agent of 5% of the
aggregate cumulative amount of Aggregate Net Sales Proceeds not to exceed
$4,000,000 and (vi) as to any other Secured Obligations, the payment and
satisfaction in full in immediately available funds of all
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such Secured Obligations then outstanding. If after receipt of any payment of,
or Proceeds of Collateral applied to the payment of, any of the Creditor
Obligations, Collateral Agent or any other Creditor Party, as applicable, is
required to surrender or return such payment or Proceeds to any Person for any
reason, then the Creditor Obligations intended to be satisfied by such payment
or Proceeds shall be reinstated and continue and this Agreement shall continue
in full force and effect as if such payment or Proceeds had not been received by
Collateral Agent or such other Creditor Party, as the case may be.
"PARTIES" means the Loan Parties, Secured Parties and Creditor
Parties from time to time party to this Agreement.
"PERMITTED ENCUMBRANCES" shall have the meaning assigned to that
term in both the Term Loan Agreement and Revolver Credit Agreement as in effect
on the date hereof.
"PERSON" or "PERSONS" means and include natural persons,
corporations, limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies, Joint Ventures
(as defined in the Credit Agreements), associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether or
not legal entities, and governments (whether federal, state or local, domestic
or foreign, and including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
"PETITION DATE" means April 1, 2002.
"PLAN OF REORGANIZATION" means the Debtors' Second Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code as filed with the
Bankruptcy Court on January 14, 2004 (and as revised and amended through March
2, 2004), together with the Reorganization Plan Supplement to Debtors' Second
Joint Plan of Reorganization filed with the Bankruptcy Court on February 18,
2004 in connection therewith.
"PREPETITION UNSECURED CLAIMS" means "Parent and Holding Company
Unsecured Claims" that are "Allowed," as such terms are defined in the Approved
Plan of Reorganization.
"PREPETITION UNSECURED CLAIMS AGENT" shall have the meaning assigned
to that term in the introduction to this Agreement.
"PREPETITION UNSECURED CLAIMS PARTICIPATION INTEREST" means the
right of holders of Allowed Class 6 Claims to receive 5% of the amount of
Aggregate Net Sale Proceeds up to but not exceeding the total sum of $4,000,000
in the aggregate.
"PROCEEDS" means "proceeds", as such term is defined in the UCC and,
in any event, shall include (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to any of the Loan Parties or Collateral
Agent from time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to any of the Loan
Parties from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral, by any
governmental body, authority, bureau or agency (or any person acting under color
of governmental authority),
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and (iii) any and all other consideration (in any form whatsoever) or other
amounts from time to time paid or payable under or in connection with any of the
Collateral upon disposition or otherwise.
"PROJECT" means any waste-to-energy facility, electrical generation
plant, cogeneration plant, water treatment facility or other facility for the
generation of electricity or engaged in another line of business in which
Company and its Subsidiaries are permitted to be engaged hereunder for which a
Subsidiary or Subsidiaries of Company was, is or will be (as the case may be) an
owner, operator, manager or builder, and shall also mean any two or more of such
plants or facilities in which an interest has been acquired in a single
transaction, so long as such interest constitutes an existing Investment on the
Closing Date permitted under this Agreement; provided, however, that a Project
shall cease to be a Project of Company and its Subsidiaries at such time that
Company or any of its Subsidiaries ceases to have any existing or future rights
or obligations (whether direct or indirect, contingent or matured) associated
therewith.
"REQUISITE OBLIGEES" means (i) until Payment in Full of all Revolver
Loan Obligations, Requisite Revolver Lenders; and (ii) from and after Payment in
Full of all Revolver Loan Obligations, Requisite Term Loan Lenders.
"REQUISITE REVOLVER LENDERS" means Lenders having or holding more
than 50% of the aggregate Revolver Loan Exposure of all Revolver Lenders;
provided, however, that prior to the Closing Date, for purposes of this
definition the Revolver Loan Exposure of each Revolver Loan Lender shall equal
the original Revolver Loan Commitment of such Revolver Loan Lender on the
Closing Date.
"REQUISITE TERM LOAN LENDERS" means Lenders having or holding more
than 50% of the aggregate Term Loan Exposure of all Term Loan Lenders; provided,
however, that prior to the Closing Date, for purposes of this definition the
Term Loan Exposure of each Term Loan Lender shall equal the original Term Loan
Commitment of such Term Loan Lender on the Closing Date.
"REVOLVER AGENT" shall have the meaning assigned to that term in the
introduction hereto.
"REVOLVER BORROWER" shall have the meaning assigned to that term in
the introduction hereto.
"REVOLVER CREDIT AGREEMENT" means that (i) certain credit agreement
dated as of the date hereof by and among Company and the other Revolver
Borrowers, Revolver Lenders and Revolver Agent, (ii) any credit agreement
entered into by Revolver Borrowers to refinance, replace, renew or extend, in
whole or in party, the credit agreement referenced in clause (i) and the
indebtedness issued thereunder to the extent permitted pursuant to the Term Loan
Agreement, in the case of clause (i) or (ii), as such credit agreement may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted thereunder and pursuant to subsection 2.5(b).
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"REVOLVER DOCUMENTS" means the "Loan Documents" as such term is
defined in the Revolver Credit Agreement (or any comparable term with respect to
any replacement Revolver Credit Agreement not prohibited hereunder).
"REVOLVER EVENT OF DEFAULT" means an "Event of Default" under and as
defined in the Revolver Credit Agreement.
"REVOLVER LENDER" shall have the meaning assigned to that term in
the introduction to this Agreement.
"REVOLVER LOAN" or "REVOLVER LOANS" means the loans made (or deemed
made) by Revolver Lenders to Revolver Borrowers under the Revolver Credit
Agreement.
"REVOLVER LOAN COMMITMENT" means, as at any date of determination,
the commitment of a Revolver Lender to make Revolver Loans to Revolver Borrowers
pursuant to the Revolver Credit Agreement.
"REVOLVER LOAN EXPOSURE" with respect to any Revolver Lender, means,
as of any date of determination (i) prior to the termination of the Revolver
Loan Commitments, that Revolver Lender's Revolver Loan Commitment, and (ii)
after the termination of the Revolver Loan Commitments, the aggregate
outstanding principal amount of the Revolver Loans of that Revolver Lender.
"REVOLVER LOAN OBLIGATIONS" means any and all Obligations to the
extent arising under or with respect to the Revolver Loan Commitments or the
Revolver Loans, including principal and interest on any Revolver Loans and the
fees and other amounts accruing or otherwise owed with respect to the Revolver
Loan Exposure and all other Obligations of a Loan Party with respect to Revolver
Loans; provided, however, that Obligations of any Loan Party for interest or
commitment fees with respect to any Revolver Loan Document and Revolver Loan
Commitments that accrue or may be incurred under any Revolver Loan Document
after the commencement by or against any Loan Party of a Bankruptcy Proceeding
shall be included in the Revolver Loan Obligations solely to the extent
recoverable from such Loan Party or its estate in such proceeding.
"SECURED PARTIES" means Term Loan Lenders, Revolver Lenders, Term
Loan Agents, Revolver Agent, Cash Management Bank and Collateral Agent.
"SECURED OBLIGATIONS" means all Obligations of Loan Parties from
time to time under the Credit Agreements and the other Revolver Documents and
Term Loan Documents and all obligations owing to Collateral Agent hereunder or
under each Collateral Document, and all Cash Management Obligations.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or
15
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACCOUNT" means an account to which a financial asset is
or may be credited in accordance with an agreement under which the Person
maintaining the account undertakes to treat the Person for whom the account is
maintained as entitled to exercise the rights that comprise the financial asset.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered by Borrowers on the Closing Date pursuant to the Revolver Credit
Agreement and Term Loan Agreement, as such agreement may from time to time
hereafter be amended, restated, supplemented or otherwise modified to the extent
permitted pursuant to subsection 2.4.
"SENIOR AGENT" means, (i) until Payment in Full of all Revolver Loan
Obligations, Revolver Loan Agent and (ii) from and after Payment in Full of all
Revolver Loan Obligations and until Payment in Full of all Term Loan
Obligations, Term Loan Agent.
"SENIOR CREDITOR" shall have the meaning assigned to that term in
subsection 4.2(e).
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, trust, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof.
"SUPERPRIORITY TERM LOAN OBLIGATIONS" means all Term Loan
Obligations in respect of accrued and unpaid interest on the Term Loans
(including, for the avoidance of doubt, accrued and unpaid interest on
Additional Interest Loans; it being understood and agreed that, to the extent
interest on the Term Loans is paid through the issuance of Additional Interest
Loans pursuant to subsection 2.2B(ii) of the Term Loan Agreement, such interest
shall be deemed paid for purposes of this definition).
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 6.1(c).
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto.
"TERM LOAN" or "TERM LOANS" means the loans made (or deemed made) by
Term Loan Lenders to Term Loan Borrowers pursuant to the Term Loan Agreement,
including any Additional Interest Loans (as defined in the Term Loan Agreement)
and loans deemed made after the Closing Date pursuant to subsection 2.1 of the
Term Loan Agreement.
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"TERM LOAN AGENT" shall have the meaning assigned to that term in
the introduction to this Agreement.
"TERM LOAN AGENTS" means Term Loan Agent and Term Loan
Documentation Agent.
"TERM LOAN AGREEMENT" means that (i) certain credit agreement dated
as of the date hereof by and among Company and the other Term Loan Borrowers,
Term Loan Lenders and the Term Loan Agents, (ii) any credit agreement entered
into by the Term Loan Borrowers to refinance, replace, renew or extend, in whole
or in part, the credit agreement referenced in clause (i) and the indebtedness
thereunder to the extent permitted pursuant to the Revolver Credit Agreement, in
the case of clause (i) or (ii), as such credit agreement may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted thereunder and pursuant to subsection 2.5(c).
"TERM LOAN BORROWERS" shall have the meaning assigned to that term
in the introduction to this Agreement.
"TERM LOAN COMMITMENT" means, as at any date of determination, the
commitment of a Term Loan Lender to make Term Loans to Term Loan Borrowers
pursuant to the Term Loan Agreement.
"TERM LOAN DOCUMENTATION AGENT" shall have the meaning assigned to
that term in the introduction to this Agreement.
"TERM LOAN DOCUMENTS" means the "Loan Documents" as such term is
defined in the Term Loan Agreement (or any comparable term with respect to any
replacement Term Loan Agreement not prohibited hereunder).
"TERM LOAN EVENT OF DEFAULT" means an "Event of Default" under and
as defined in the Term Loan Agreement.
"TERM LOAN EXPOSURE" with respect to any Term Loan Lender, means, as
of any date of determination the aggregate outstanding principal amount of the
Term Loans of that Term Loan Lender.
"TERM LOAN LENDER" shall have the meaning assigned to that term in
the introduction to this Agreement.
"TERM LOAN OBLIGATIONS" means any and all Obligations to the extent
arising under or with respect to the Term Loan Commitments or the Term Loans,
including principal and interest on any Terms Loans and fees and other amounts
accruing or otherwise owed with respect to the Term Loan Exposure; provided,
however, that Obligations of any Loan Party for interest with respect to any
Term Loan Document and Term Loan Commitments that accrue or may be incurred
under any Term Loan Document after the commencement by or against any Loan Party
of a Bankruptcy Proceeding shall be included in the Term Loan Obligations solely
to the extent recoverable from such Loan Party or its estate in such proceeding.
17
"THIRD-PARTY GUARANTY" shall have the meaning assigned to that term
in subsection 4.2(h).
"UCC" means the Uniform Commercial Code as the same may, from time
to time, be in effect in the State of New York; provided, however, in the event
that, by reason of mandatory provisions of law, the priority of any Secured
Party's security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New York,
the term "UCC" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such priority and
for purposes of definitions related to such provisions.
"UNITED STATES" means the United States of America.
1.2 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
(a) Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on
the reference.
(b) References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise
specifically provided.
(c) The use of the word "include" or "including", when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or
not nonlimiting language (such as "without limitation" or "but not limited
to" or words of similar import) is used with reference thereto, but rather
shall be deemed to refer to all other items or matters that fall within
the broadest possible scope of such general statement, term or matter.
(d) In the event of any refinancing, replacement or extension of any
Credit Agreement, references in this Agreement to sections or subsections
of such Credit Agreement shall refer to the functionally equivalent
sections or subsections in such refinanced, replaced or extended agreement
as the context requires.
SECTION II
2.1 APPOINTMENT AS COLLATERAL AGENT. Each Secured Party (i) appoints
Bank of America to serve as collateral agent and representative of each such
Secured Party (to the extent applicable) under this Agreement and each of the
Collateral Documents (in such capacity, together with its successors in such
capacity, the "COLLATERAL AGENT") and (ii) irrevocably authorizes Collateral
Agent to act as agent for the Secured Parties for the purpose of executing and
delivering, on behalf of all such Secured Parties, the Collateral Documents and,
subject to the provisions of this Agreement, for the purpose of exercising such
powers, rights and remedies hereunder and under the other Collateral Documents
as are specifically delegated or granted to Collateral Agent by the terms hereof
and thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. For the avoidance of doubt, it is understood and agreed that
the Collateral Agent is the "Secured Party" or, as the case may be, the
"Mortgagee" referred to in the Collateral Documents. Each Secured Party and
Collateral Agent hereby appoints each other
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Secured Party as agent for the purpose of perfecting Collateral Agent's security
interest in Collateral that, in accordance with the UCC, can be perfected by
possession or control.
2.2 DECISIONS RELATING TO ENFORCEMENT ACTIONS AND OTHER MATTERS
VESTED IN REQUISITE OBLIGEES.
(a) Collateral Agent agrees to take such Enforcement Actions and all
such actions with respect to Collateral which is perfected only by control
of such Collateral, in each case as may be directed by Requisite Obligees
(it being understood and agreed that if, at any time Collateral Agent
determines that the requisite percentages constituting Requisite Obligees
shall have been obtained, the Collateral Agent may and shall be fully
authorized, as of such time and without the need for further direction
from any Secured Party, to take or not take such action as the Requisite
Obligees direct); provided, however, that notwithstanding anything in this
Agreement to the contrary, Collateral Agent shall not be required to take
any action that is in its judgment contrary to law or to the terms of this
Agreement or any or all of the Collateral Documents or which would in its
opinion subject it or any of its officers, employees or directors to
liability, and Collateral Agent shall not be required to take any action
under this Agreement or any or all of the Collateral Documents unless and
until Collateral Agent shall be indemnified to its satisfaction by the
relevant Parties against any and all losses, costs, expenses or
liabilities in connection therewith.
(b) Each Secured Party agrees that Collateral Agent may act as
Requisite Obligees may request (regardless of whether any individual Party
or any other Secured Party agrees, disagrees or abstains with respect to
such request), that Collateral Agent shall have no liability for acting in
accordance with such request (provided such action does not conflict with
the express terms of this Agreement) and that no Secured Party shall have
any liability to any other Party for any such request, except, in each
case, liability arising from the gross negligence or willful misconduct of
such Person. Collateral Agent shall give prompt notice to all Secured
Parties of actions taken pursuant to the instructions of Requisite
Obligees; provided, however, that the failure to give any such notice
shall not impair the right of Collateral Agent to take any such action or
the validity or enforceability under this Agreement and the applicable
Collateral Documents of the action so taken.
(c) Collateral Agent may at any time request directions from the
Requisite Obligees with respect to the Collateral Documents as to any
course of action or other matter relating hereto or to the Collateral
Documents. Except as otherwise provided in the Collateral Documents,
directions given by Requisite Obligees to Collateral Agent with respect to
the Collateral and Collateral Documents shall be binding on all Secured
Parties for all purposes (provided such directions do not conflict with
the express terms of this Agreement).
(d) Each Secured Party, by accepting the benefits hereof and of the
Collateral Documents, agrees not to take any Enforcement Action
whatsoever, in each case except through Collateral Agent in accordance
with this Agreement.
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2.3 NET INSURANCE/CONDEMNATION PROCEEDS.
(a) Unless prohibited by contractual or other legal requirement, all
policies of insurance required to be maintained under any Credit Document
shall (a) name Collateral Agent, for the benefit of Secured Parties, as an
additional insured thereunder as its interests may appear and (b) in the
case of each business interruption and casualty insurance policy, contain
a loss payable clause or endorsement, satisfactory in form and substance
to Revolver Loan Agent and Term Loan Agent, that names Collateral Agent
for the benefit of Secured Parties as the loss payee thereunder for any
covered loss in excess of $1,000,000 and provides for at least 30 days
prior written notice to Collateral Agent of any modification or
cancellation of such policy. As soon as practicable after the Closing
Date, Company shall deliver to Agents, a certificate from Borrowers'
insurance broker(s) or other evidence satisfactory to it that all
insurance required to be maintained pursuant to this subsection 2.3 is in
full force and effect and that Collateral Agent on behalf of Secured
Parties has been named as additional insured and/or loss payee thereunder
to the extent required under this subsection 2.3.
(b) Upon receipt by Collateral Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net Insurance/Condemnation
Proceeds (if it had received them directly) pursuant to the Revolver
Credit Agreement (or, if the Revolver Loan Obligations have been Paid in
Full, the Term Loan Agreement), Collateral Agent shall, and Company hereby
authorizes Collateral Agent to, apply such Net Insurance/Condemnation
Proceeds as provided in subsection 4.1(b) or, to the extent applicable,
subsection 4.2, and (b) to the extent the foregoing clause (a) does not
apply, Collateral Agent shall deliver such Net Insurance/Condemnation
Proceeds to Company, and (1) Company and its Subsidiaries may retain and
apply any portion thereof that is business interruption insurance proceeds
for working capital purposes or any other purposes not prohibited under
the Credit Agreements and (2) Company shall, or shall cause one or more of
its Subsidiaries to, promptly apply such Net Insurance/Condemnation
Proceeds that are not business interruption insurance proceeds to the
costs of repairing, restoring, or replacing the assets in respect of which
such Net Insurance/Condemnation Proceeds were received; provided, however
that if at any time Senior Agent reasonably determines (A) that Company or
such Subsidiary is not proceeding diligently with such repair, restoration
or replacement or that such repair, restoration or replacement cannot be
completed within 180 days after the receipt by Collateral Agent of such
Net Insurance/Condemnation Proceeds, Senior Agent may direct Collateral
Agent, and Company hereby authorizes Senior Agent and Collateral Agent to
apply such Net Insurance/Condemnation Proceeds as provided in subsection
4.1(b).
2.4 AMENDMENTS, MODIFICATIONS, WAIVERS AND RELEASES. Notwithstanding
anything in the Credit Agreements, Collateral Documents and other Credit
Documents to the contrary (but subject to subsection 7.1(c)),
(a) except in connection with any Enforcement Action, the release of
the Lien granted in favor of Collateral Agent on all or substantially all
of the Collateral under the Collateral Documents shall require the prior
written consent of each Revolver Lender and
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each Term Loan Lender; (except that such Lien may be released on all or
substantially all Collateral to the extent such release is required in
connection with an Asset Sale or Asset Sales permitted under the Credit
Agreements); provided however, that, if prior to or concurrently with any
such release the Revolver Loan Obligations are Paid in Full, then such
release shall not require any Revolver Lender's consent; and
(b) except as set forth in subsection 2.4(a), any amendment,
modification, termination or waiver of, any Collateral Documents shall
require the prior written consent of (i) until Payment in Full of all
Revolver Loan Obligations, Requisite Revolver Lenders and (ii) until
Payment in Full of all Term Loan Obligations, Requisite Term Loan Lenders.
2.5 AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO CREDIT
DOCUMENTS. Any amendment or modification of, or waiver of compliance with the
terms of any Credit Document, shall (subject to subsection 7.1(c)) be subject to
the following requirements:
(a) Until (i) the termination of the Term Loan Agreement and the
Payment in Full of all Term Loan Obligations, without the prior written
consent of Requisite Term Loan Lenders, and (ii) the termination of the
Revolver Credit Agreement and the Payment in Full of all Revolver Loan
Obligations, without the prior written consent of Requisite Revolver
Lenders, Company shall not, and shall not permit any of its Subsidiaries
to amend, restate, modify or waive (or make any payment consistent with an
amendment, restatement, modification or waiver of) any material provision
of the Management Services and Reimbursement Agreement, the Existing IPP
Project Guaranties, or the DHC Tax Sharing Agreement, in each case if the
effect of such amendment, restatement, modification or waiver, together
with all other amendments, restatements, modifications or waivers made,
(a) is to impose additional material obligations on, or confer additional
material rights to the holders thereof (or to other obligees with respect
thereto) against, Company or any of its Subsidiaries, (b) is otherwise
adverse to the interests of the Term Loan Lenders in a manner deemed
material in the judgment of the Term Loan Agents or Requisite Term Loan
Lenders so notifying Term Loan Agents or Company, or (c) is otherwise
adverse to the interests of the Revolver Lenders in a manner deemed
material in the judgment of the Revolver Agent or Requisite Revolver
Lenders so notifying Revolver Agent or Company.
(b) Subject to the provisions of subsection 2.4, and until the
termination of the Term Loan Agreement and the Payment in Full of all Term
Loan Obligations, without the prior written consent of Requisite Term Loan
Lenders, Revolver Lenders may not amend, restate, modify or waive (or
receive any payment consistent with an amendment, restatement,
modification or waiver of) any material provision of any of the Revolver
Documents, unless (i) the terms of the Revolver Documents as so amended,
restated, modified or waived are not more disadvantageous to Company and
its Subsidiaries and the Term Loan Lenders (in a manner deemed material by
Term Loan Agent or Requisite Term Loan Lenders so notifying Term Loan
Agent or Company) than the Revolver Documents in effect on the Closing
Date (it being understood and agreed that any amendment, restatement,
modification or waiver having the effect of increasing the amount of, or
reducing, delaying or waiving any otherwise required reduction in the
21
amount of, any commitment to extend loans under the Revolver Documents
shall be deemed to be more disadvantageous for purposes of this clause (i)
without further notice or other action by Term Loan Agents or Requisite
Term Loan Lenders), (ii) the aggregate amount of indebtedness and
additional commitments to extend credit, if any, under the Revolver
Documents as so amended, restated, modified or waived, do not exceed the
aggregate amount of the commitments to extend credit in effect under the
Revolver Documents on the Closing Date, (iii) the obligations under (and
the Liens securing) such Revolver Documents as so amended, restated,
modified or waived are subject to this Agreement on terms substantively
identical to the terms applicable to the obligations in effect under the
Revolver Documents on the Closing Date, and (iv) Company provides to Term
Loan Agents reasonable prior advance written notice of such proposed
amendment, restatement, modification or waiver and copies of all material
contracts or other agreements being entered into in connection therewith.
(c) Subject to the provisions of subsection 2.4, and until the
termination of the Revolver Credit Agreement and the Payment in Full of
all Revolver Loan Obligations, without the prior written consent of
Requisite Revolver Lenders, Term Loan Lenders may not amend, restate,
modify or waive (or receive any payment consistent with an amendment,
restatement, modification or waiver of) any material provision of any of
the Term Loan Documents, unless (i) the terms of the Term Loan Documents
as so amended, restated, modified or waived are not more disadvantageous
to Company and its Subsidiaries and the Revolver Lenders (in a manner
deemed material by Revolver Agent or Requisite Revolver Lenders so
notifying Revolver Agent or Company) than the Term Loan Documents in
effect on the Closing Date (it being understood and agreed that any
amendment, restatement, modification or waiver having the effect of
increasing the amount of, or reducing, delaying or waiving any otherwise
required reduction in the amount of, any commitment to extend loans under
the Term Loan Documents shall be deemed to be more disadvantageous for
purposes of this clause (i), without further notice or other action by
Revolver Agent or Requisite Revolver Lenders), (ii) the aggregate amount
of indebtedness and additional commitments to extend credit, if any, under
the Term Loan Documents as so amended, restated, modified or waived, do
not exceed the aggregate amount of the commitments to extend credit in
effect under the Term Loan Documents on the Closing Date plus the amount
of any Additional Interest Loans and other Term Loans deemed made
thereunder from time to time pursuant to subsections 2.2B and 2.1A of the
Term Loan Agreement, respectively, (iii) the obligations under (and the
Liens securing) such Term Loan Documents as so amended, restated, modified
or waived are subject to this Agreement on terms substantively identical
to the terms applicable to the obligations in effect under the Term Loan
Documents on the Closing Date, and (iv) Company provides to Revolver Agent
reasonable prior advance written notice of such proposed amendment,
restatement, modification or waiver and copies of all material contracts
or other agreements being entered into in connection therewith.
(d) Each Lender acknowledges and agrees that Borrowers have agreed
to and are bound by the provisions of subsection 5.12 (Most Favored
Nations Payments) of each Credit Agreement.
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SECTION III
3.1 PRIORITY OF LIENS. Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a security interest in favor of Collateral Agent in any Collateral,
and notwithstanding any conflicting terms or conditions which may be contained
in any of the Credit Documents, the Secured Parties agree that as among the
Secured Parties, the following Lien priorities shall strictly apply in defining
the respective Lien priorities of each Secured Party in the Collateral:
(a) first, the Liens upon the Collateral in favor of Collateral
Agent to the extent securing the Secured Obligations owing from time to
time to the Collateral Agent, in its capacity as Collateral Agent, to the
full extent thereof;
(b) second: the Liens upon the Collateral in favor of Collateral
Agent to the extent securing, on a pari passu basis, the Secured
Obligations owing from time to time to the Term Loan Agents and Revolver
Loan Agent, in their capacities as Term Loan Agents and Revolver Loan
Agent, respectively, to the full extent thereof;
(c) third: the Liens upon the Collateral in favor of Collateral
Agent to the extent securing, on a pari passu basis, (i) the remaining
Revolver Loan Obligations, and (ii) the Cash Management Obligations, in
each case to the full extent thereof; and
(d) fourth: the Liens upon the Collateral in favor of Collateral
Agent to the extent securing the Term Loan Obligations to the full extent
thereof.
3.2 PRIORITIES UNAFFECTED BY ACTION OR INACTION. The Lien priorities
in subsection 3.1 shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, renewal, restatement or refinancing of any
of the Secured Obligations, nor by any action or inaction which Collateral Agent
or any other Secured Party may take or fail to take in respect of the
Collateral.
SECTION IV
4.1 APPLICATION OF MANDATORY PREPAYMENTS UNDER CREDIT AGREEMENTS AND
NET ASSET SALE PROCEEDS. Notwithstanding anything in the Credit Documents to the
contrary but subject in all respects to subsection 4.2, so long as any Creditor
Obligations are outstanding (including any loans or any commitments to lend):
(a) Any Mandatory Payments pursuant to subsection 2.4A(iii)(e) of
the Revolver Credit Agreement and subsection 2.4A(ii)(e) of the Term Loan
Agreement shall, in each case, be applied first, to the payment of any
Approved Operating Expenses then due and payable to Management Services
and Reimbursement Agreement Beneficiaries pursuant to the Management
Services and Reimbursement Agreement; second, to the extent of any excess
amounts remaining after application in clause first, to the payment of
interest then due and payable on the Term Loans pursuant to subsection
2.2B(ii) of the Term Loan Agreement; third, to the extent of any excess
amounts remaining after the application described in clauses first and
second, to repay any
23
Management Services and Reimbursement Agreement Obligations then due and
payable; and fourth to the extent of any excess amounts remaining after
application in clauses first, second and third, to prepay outstanding Term
Loans.
(b) Any Mandatory Payments pursuant to subsections 2.4A(iii)(a) -
(d) of the Revolver Credit Agreement and subsection 2.4A(ii)(a) - (d) of
the Term Loan Agreement shall, in each case, be applied first, to the
payment of any Approved Operating Expenses then due and payable to
Management Services and Reimbursement Agreement Beneficiaries pursuant to
the Management Services and Reimbursement Agreement, second, to the extent
of any excess amounts remaining after the application described in clause
first, (a) to reduce Revolver Loan Exposure in an amount equal to 50% of
such excess amounts with such reduction in Revolver Loan Exposure to occur
by repaying outstanding Revolver Loans to the full extent thereof and
permanently reducing the Revolver Loan Commitments in the full amount of
the portion of such payment so applied to reduce Revolver Loan Exposure
(provided, however, that no such application shall reduce the Revolver
Loan Commitments to the extent that the sum of any Cash On Hand plus the
amount of Revolver Loan Commitments would be less than $10,000,000 after
giving effect to such reduction), with any amounts so applied to Revolver
Loan Exposure but not actually applied to repay Revolver Loans being
retained by Revolver Borrowers, and (b) to repay any Management Services
and Reimbursement Agreement Obligations then due and payable and
outstanding Term Loans in an amount equal to 50% of such excess amounts,
(with such amount being applied first to such Management Services and
Reimbursement Agreement Obligations and then to prepay outstanding Term
Loans); and third, if either (1) no Revolver Loans are outstanding and the
sum of all Cash On Hand plus the amount of Revolver Loan Commitments is
less than $10,000,000, or (2) no Management Services and Reimbursement
Agreement Obligations and no Term Loans are outstanding, but both events
described in clauses (1) and (2) shall not have occurred, to repay and
reduce Revolver Loan Exposure by repaying Revolving Loans and permanently
reducing Revolving Loan Commitment (with any amounts so applied to
Revolver Loan Exposure but not actually applied to repay Revolver Loans
being retained by Borrowers) or Management Services and Reimbursement
Agreement Obligations and Term Loans (with amounts being applied first to
Management Services and Reimbursement Agreement Obligations and then to
Term Loans) to the extent required so that both such events shall occur;
provided that, notwithstanding anything in the foregoing to the contrary,
to the extent that any Mandatory Payment applied to prepay Term Loans
pursuant to this subsection 4.1(b) constitutes Net Asset Sale Proceeds, 5%
of the aggregate amount of such Net Asset Sale Proceeds shall be applied
to the payment of Prepetition Unsecured Claims Participation Interest
(provided, that the aggregate cumulative amount of all Net Asset Sale
Proceeds so applied, when aggregated with all other Aggregate Net Sales
Proceeds paid or distributed in respect of Prepetition Unsecured Claims
Participation Interest, shall not exceed $4,000,000) and 95% of such
amount shall be applied to prepay Term Loans).
(c) In the event that at the time of receipt by Company or any of
its Subsidiaries of any Net Asset Sale Proceeds, the Term Loan Obligations
shall have been Paid in Full and the Prepetition Unsecured Claims
Participation Interest shall not have been Paid in Full at such time, 5%
of the aggregate amount of such Net Asset Sale
24
Proceeds shall be applied to the payment of the Prepetition Unsecured
Claims Participation Interest until such time as the aggregate amount of
such Net Asset Sale Proceeds applied to the payment of the Prepetition
Unsecured Claims Participation Interest when aggregated with all other
Aggregate Net Sale Proceeds paid or distributed in respect of the
Prepetition Unsecured Claims Participation Interest, shall total
$4,000,000.
(d) All payments of Term Loans pursuant to this subsection 4.1 shall
made to the Term Loan Agent for distribution to the Term Loan Lenders and
the Disbursing Agents in accordance with the Term Loan Agreement,
including subsection 9.25 thereof.
4.2 APPLICATION OF PROCEEDS OF COLLATERAL, ETC.
(a) Except as provided in subsection 4.2(b) or 4.2(c) below, upon
the occurrence and during the continuation of an Event of Default or the
termination of the Revolver Loan Commitments (other than as a result of
any voluntary termination of Revolver Loan Commitments by Revolver
Borrowers pursuant to subsection 2.4A(ii) of the Revolver Credit
Agreement), if requested by Requisite Revolver Lenders with respect to any
Revolver Event of Default or termination of Revolver Loan Commitments, or
if requested by Requisite Term Loan Lenders with respect to any Term Loan
Event of Default, (1) all Mandatory Payments or other payments received by
any Agent or other Creditor Party on account of the Creditor Obligations,
whether from any Loan Party or otherwise, shall promptly be delivered to
Collateral Agent and upon receipt by Collateral Agent, applied by
Collateral Agent against the Creditor Obligations and (2) all Proceeds
received by Collateral Agent in respect of any sale of, collection from,
or other realization upon all or any part of the Collateral or other
Enforcement Action may, in the discretion of Senior Agent upon written
direction to Collateral Agent, be held by Collateral Agent as Collateral
for, and/or (then or at any time thereafter) applied in full or in part by
Collateral Agent against, the applicable Creditor Obligations, in each
case under clauses (1) and (2) in the following order of priority:
(i) First, to the payment of the costs and expenses of the
exercise of rights and remedies and such sale, collection or other
realization or Enforcement Action, including reimbursement of all
expenses, liabilities and advances made or incurred by Collateral Agent in
connection therewith (including for reasonable cost, fees and expenses of
counsel and other professionals and agents retained by the Collateral
Agent) and all amounts for which Collateral Agent is entitled to
compensation, reimbursement and indemnification under any Credit Document
and any other amounts then owing to Collateral Agent, in its capacity as
Collateral Agent, pursuant to the Collateral Documents;
(ii) Second, to the extent proceeds remain after application
as described in clause (i) above, pro rata among the following, based on
the amounts outstanding as of any date of determination: all Secured
Obligations owing to Term Loan Agents and Revolver Agent, in their
capacities as Term Loan Agents and Revolver Agent, respectively;
25
(iii) Third, to the extent proceeds remain after application
as described in clauses (i) and (ii) above, to the payment of Approved
Operating Expenses until all Approved Operating Expenses have been Paid in
Full;
(iv) Fourth, to the extent proceeds remain after application
as described in clauses (i) through (iii) above, pro rata among the
following, based on the amounts outstanding as of any date of
determination: (i) all Revolver Loan Obligations (with any payment of the
Revolver Loans resulting in a corresponding permanent reduction in the
Revolver Loan Commitments), and (ii) all Cash Management Obligations,
until all such Revolver Loan Obligations and Cash Management Obligations
have been Paid in Full;
(v) Fifth, to the extent proceeds remain after application as
described in clauses (i) through (iv) above, to the payment of the
Superpriority Term Loan Obligations, until all Superpriority Term Loan
Obligations have been Paid in Full;
(vi) Sixth, to the extent proceeds remain after application as
described in clauses (i) through (v) above, to the payment of the
Management Services and Reimbursement Agreement Obligations then due and
payable, until all Management Services and Reimbursement Agreement
Obligations have been Paid in Full;
(vii) Seventh, to the extent proceeds remain after application
as described in clauses (i) through (vi) above, 5% of any such excess
proceeds constituting Aggregate Net Sales Proceeds to the payment of the
Prepetition Unsecured Claims Participation Interest in an aggregate
cumulative amount which, when added to all other Aggregate Net Sale
Proceeds paid or distributed in respect of the Prepetition Unsecured
Claims Participation Interest, does not exceed $ 4,000,000;
(viii) Eighth, to the extent proceeds remain after application
as described in clauses (i) through (vii) above, to the payment of the
remaining Term Loan Obligations, until all Term Loan Obligations have been
Paid in Full; and
(ix) Ninth, after application as described in clauses (i)
through (viii) above and Payment in Full of all other Secured Obligations
under the Revolver Credit Agreement, Term Loan Agreement, and all Secured
Obligations then due and payable under the Management Services and
Reimbursement Agreement, if any, and the termination of all Revolver Loan
Commitments, to Loan Parties, or, subject to subsection 7.1(c), their
successors or assigns, or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct, of any
surplus then remaining from such Proceeds.
(b) Notwithstanding anything in subsection 4.2(a) to the contrary,
in the event that no Revolver Event of Default has occurred and is
continuing under subsection 7.1 of the Revolver Credit Agreement and no
Bankruptcy Proceeding has been commenced by or against any Loan Party, the
Term Loan Lenders and Term Loan Agents shall be entitled to receive
payments of current interest and fees with respect to the Term Loan
Obligations when due under the Term Loan Agreement.
26
(c) Until Proceeds are applied as set forth in this subsection 4.2,
Collateral Agent shall hold such Proceeds in its custody in accordance
with its regular procedures for handling deposited funds.
(d) Payments by Collateral Agent to the Revolver Lenders in respect
of the Obligations shall be made to the Revolver Agent for distribution to
the Revolver Lenders in accordance with the Revolver Credit Agreement and
this Agreement; payments by Collateral Agent to the Term Loan Lenders in
respect of the Obligations shall be made to the Term Loan Agent for
distribution to the Term Loan Lenders and the Disbursing Agents in
accordance with the Term Loan Agreement (including subsection 9.25 of the
Term Loan Agreement) and this Agreement; any payments in respect of
Approved Operating Expenses shall be made to such Persons as shall be
directed in writing by Company pursuant to an Officer's Certificate
delivered pursuant to subsection 5.1(c); any payments in respect of any
Management Services and Reimbursement Agreement Obligations shall be paid
to Covanta, for distribution to the applicable Management Services and
Reimbursement Agreement Beneficiary; payments in respect of any
Prepetition Unsecured Claims Participation Interest shall be paid to
Prepetition Unsecured Claims Agent for distribution to the holders of the
Prepetition Unsecured Claims Participation Interest; and payments in
respect of the Cash Management Obligations shall be made to Cash
Management Bank for the benefit of Cash Management Bank.
(e) In the event that any Creditor Party shall receive any
Distribution that such Creditor Party is not entitled to receive or retain
under the provisions of this Agreement (in such capacity, each, a "JUNIOR
CREDITOR"), such Junior Creditor shall hold any such Distribution so
received in trust for the benefit of the holders of other Creditor
Obligations with the right to receive such Distribution under the
provisions of this Agreement (in such capacity, each, a "SENIOR CREDITOR")
and shall segregate such Distribution from other assets held by such
Junior Creditor; and shall forthwith turn over such Distribution (without
liability for interest thereon, but with any appropriate endorsements or
assignments, if necessary) to the holders of, or to Collateral Agent for
the benefit of the holders of, such Creditor Obligations in the form
received (with any appropriate endorsement or assignment, if necessary) to
be distributed in accordance with subsection 4.1 or 4.2, as applicable,
and applied to such Creditor Obligations. In the event of a failure of any
Junior Creditor to make any such endorsement or assignment to Collateral
Agent or Senior Creditors, as the case may be, Collateral Agent and such
Senior Creditors are hereby irrevocably authorized on behalf of such
Junior Creditor to make such endorsement or assignment, as applicable. For
the avoidance of doubt, the provisions of this Agreement regarding Junior
Creditors and Senior Creditors apply regardless of whether or not a Junior
Creditor or Senior Creditor is a Secured Party.
(f) No payment or distribution to any Senior Creditor pursuant to
the provisions of this Agreement shall entitle the applicable Junior
Creditor or Junior Creditors to exercise any right of subrogation in
respect thereof until (i) all Creditor Obligations of such Senior
Creditors shall have been indefeasibly Paid in Full, or (ii) all of such
Senior Creditors have consented in writing to the taking of such action.
With respect to any subrogation claims, each Junior Creditor hereby (to
the extent permitted by
27
applicable law) waives, releases and discharges any and all rights,
claims, causes of action, liabilities, claims and demands, in law or
equity, which such Junior Creditor has had, now has, or may in the future
have, arising out of or relating directly or indirectly to the taking or
not taking of any act or proceeding or not proceeding with any action
which the Senior Creditors (or that representatives) may take in an effort
to collect in respect of the Creditor Obligations owed to such Senior
Creditors.
(g) In furtherance of, and without limiting, the priority provisions
set forth in this subsection 4.2, but subject to the applicable voting
provisions set forth in subsection 2.2, each Secured Party agrees that, in
order to enable Collateral Agent to enforce its rights hereunder in any
Bankruptcy Proceeding, Collateral Agent is hereby irrevocably authorized
and empowered in its sole and absolute discretion to receive and collect
any and all dividends or other payments or disbursements made on account
of Collateral Agent's Lien on the Collateral in whatever form the same may
be paid or issued and to apply the same on account of any such Creditor
Obligations in accordance with the provisions of the Credit Documents and
this Agreement. At any time, including but not limited to during any
Bankruptcy Proceeding, Collateral Agent and each other Party will refrain
from taking any action which would contest or challenge in any
administrative, legal or equitable action or otherwise the validity or
enforceability of the terms of this Agreement, including the priority
provisions contained in subsection 4.1 and this subsection 4.2 and the
Lien priority provisions contained in subsection 3.1.
(h) Each Secured Party hereby covenants and agrees that (i) such
Secured Party will not accept from any Person on behalf of the Borrowers
any guarantee (a "THIRD-PARTY GUARANTY") of any Obligations unless such
guarantor simultaneously guarantees the payment of all Secured Obligations
owed to each of the other Secured Parties (or, if such Third-Party
Guaranty guarantees only a portion of the Obligations owing to such
Secured Party, such Secured Party will not accept such Third-Party
Guaranty unless such guarantor simultaneously guarantees the same
proportion of Obligations owing to the other Secured Parties), and (ii)
such Secured Party will not take, accept or obtain any security interest
in, or lien or encumbrance upon, any assets of any of the Borrowers or any
Subsidiary or Affiliate thereof or any other Person to secure the payment
and performance of the Obligations unless the Collateral Agent, for the
benefit of all Secured Parties, is granted a pari passu security interest
in, or lien upon, such assets, in either case, pursuant to documents in
form and substance satisfactory to the Revolver Agent and Term Loan Agent.
(i) Each Junior Creditor hereby waives any rights it may have under
applicable law to assert the doctrine of marshalling or to otherwise
require Collateral Agent or any Senior Creditors to marshal any property
of the Loan Parties or any of their respective Affiliates for the benefit
of such Junior Creditors.
(j) All payments of Term Loan Obligations pursuant to this
subsection 4.2 (including Superpriority Term Loan Obligations) shall be
made to the Term Loan Agent for distribution to the Term Loan Lenders and
the Disbursing Agents in accordance with the Term Loan Agreement,
including subsection 9.25 thereof.
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SECTION V
5.1 INFORMATION. From time to time, upon the request of Collateral
Agent, each of the following Parties agrees to promptly provide to Collateral
Agent the information described below:
(a) Revolver Agent agrees to promptly from time to time to (i)
deliver to Collateral Agent a true, correct and complete copy of any
amendment, waiver or modification of or supplement to any Revolver
Document upon execution and delivery to Revolver Agent thereof by the
relevant parties thereto and (ii) notify Collateral Agent of: (A) the
aggregate amount of principal of and interest on the relevant Obligations
arising under the Revolver Credit Agreement as at such date as Collateral
Agent may specify, (B) the current Revolver Loan Commitment under the
Revolver Credit Agreement, and (C) any payment received by Revolver Agent
to be applied to the principal of or interest on the Obligations and (iii)
the amount of any other fees or expenses outstanding under the Revolver
Credit Agreement (including fees and expenses of Revolver Agent) and, in
each case, Collateral Agent shall be entitled to rely conclusively upon
such information.
(b) Term Loan Agent agrees to promptly from time to time to (i)
deliver to Collateral Agent a true, correct and complete copy of any
amendment, waiver or modification of or supplement to any Term Loan
Document upon execution and delivery to Term Loan Agent thereof by the
relevant parties thereto and (ii) notify Collateral Agent of: (A) the
aggregate amount of principal of and interest on the Obligations under the
Term Loan Agreement as at such date as Collateral Agent may specify, (B)
any payment received by Term Loan Agent to be applied to the principal of
or interest on the Obligations and (C) the amount of any other fees or
expenses outstanding under the Term Loan Agreement (including fees and
expenses of Term Loan Agents) and, in each case, Collateral Agent shall be
entitled to rely conclusively upon such information.
(c) Company agrees promptly from time to time to (i) upon execution
of any amendment, waiver, modification or supplement to the Management
Services and Reimbursement Agreement, deliver to Collateral Agent an
Officer's Certificate certifying that attached thereto is a true, correct
and complete copy of any such amendment, waiver or modification or
supplement and (ii) upon request of Collateral Agent, promptly deliver to
Collateral Agent an Officer's Certificate certifying as to: (A) the
outstanding amount of any claim or demand made against any Loan Party
pursuant to the Management Services and Reimbursement Agreement and any
other amounts owing thereunder, whether for Approved Operating Expenses,
Management Services and Reimbursement Agreement Obligations or otherwise,
at such date as Collateral Agent may specify, (B) the amount of any
payment made pursuant to the Management Services and Reimbursement
Agreement and received by any Management Services and Reimbursement
Agreement Beneficiary and (C) the outstanding amount of, and applicable
recipients of, any Approved Operating Expenses as at any date as
Collateral Agent may specify, and, in each case, Collateral Agent shall be
entitled to rely conclusively upon such certification.
29
SECTION VI
6.1 DISCLAIMERS, SUPPLEMENTAL COLLATERAL AGENT, INDEMNITY, ETC.
(a) Collateral Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Collateral Documents
and Collateral Agent shall not by reason of this Agreement or the
Collateral Documents be a trustee for any Party or have any other
fiduciary obligation to any Party. Collateral Agent shall not be
responsible to any Party for any recitals, statements, representations or
warranties contained in this Agreement or any other Credit Document or in
any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement or any other Credit
Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit
Document or any other document referred to or provided for therein or any
Lien under the Collateral Documents or the perfection or priority of any
such Lien or for any failure by any Loan Party to perform any of its
respective obligations this Agreement or any other Credit Document.
Collateral Agent may exercise such powers, rights and remedies and perform
such duties by or through its Affiliates, agents or employees.
(b) Neither Collateral Agent nor any of its officers, directors,
employees or agents shall be liable to any Parties for any action taken or
omitted by Collateral Agent under or in connection with this Agreement or
any of the Collateral Documents or other Credit Documents except to the
extent caused by Collateral Agent's gross negligence or willful
misconduct. Collateral Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in
connection with this Agreement or any of the Collateral Documents or other
Credit Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until Collateral
Agent shall have received instructions in respect thereof from Requisite
Obligees (or such other Secured Parties as may be required to give such
instructions under subsection 2.4(a)) and, upon receipt of such
instructions from Requisite Obligees (or such other Secured Parties, as
the case may be), Collateral Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Party shall have any right of action
whatsoever against an Agent as a result of Collateral Agent acting or
(where so instructed) refraining from acting under this Agreement or any
of the other Collateral Documents or other Credit Documents in accordance
with the instructions of Requisite Obligees (or such other Secured Parties
as may be required to give such instructions under subsection 2.4(a)).
(c) It is the purpose of this Agreement and the Collateral Documents
and other Credit Documents that there shall be no violation of any law of
any jurisdiction
30
denying or restricting the right of banking corporations or associations
to transact business as agent or trustee in such jurisdiction. It is
recognized that in case of litigation under this Agreement or any of the
Collateral Documents or other Credit Documents, and in particular in case
of the enforcement of any of the Collateral Documents, or in case
Collateral Agent deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Collateral Documents or take any
other action which may be desirable or necessary in connection therewith,
it may be necessary that Collateral Agent appoint an additional individual
or institution as a separate trustee, co-trustee, collateral agent or
collateral co-agent (any such additional individual or institution being
referred to herein individually as a "SUPPLEMENTAL COLLATERAL AGENT" and
collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Collateral Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of
the other Collateral Documents to be exercised by or vested in or conveyed
to Collateral Agent with respect to such Collateral shall be exercisable
by and vest in such Supplemental Collateral Agent to the extent, and only
to the extent, necessary to enable such Supplemental Collateral Agent to
exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and
every covenant and obligation contained in the Collateral Documents and
necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Collateral
Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Agreement that refer to Collateral Agent shall inure to the benefit
of such Supplemental Collateral Agent and all references herein to
Collateral Agent shall be deemed to be references to Collateral Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from any Loan Party be required by
any Supplemental Collateral Agent so appointed by Collateral Agent for
more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, such Loan Party shall execute,
acknowledge and deliver any and all such instruments promptly upon request
by Collateral Agent. In case any Supplemental Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such
Supplemental Collateral Agent, to the extent permitted by law, shall vest
in and be exercised by Collateral Agent until the appointment of a new
Supplemental Collateral Agent.
(d) Each Lender ratably in accordance with the amount of the
Creditor Obligations of such Lenders, severally agrees that it shall
indemnify Collateral Agent and the officers, directors, employees, agents,
attorneys, professional advisors and affiliates of Collateral Agent to the
extent that any such Person is neither reimbursed by any Loan Party under
any Loan Document nor reimbursed out of any Proceeds pursuant to clause
First of subsection 4.2(a), for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements and fees and fees and
disbursements of any advisor engaged by Collateral Agent) or disbursements
of any kind and nature whatsoever which may be imposed on,
31
incurred by or asserted against Collateral Agent or any such Person
exercising the powers, rights and remedies of a Collateral Agent or
performing duties of a Collateral Agent hereunder or under the other
Collateral Documents or in any way relating to or arising out of this
Agreement, any Collateral Document or any other Credit Document or any
other documents contemplated hereby or thereby or referred to therein or
the transactions contemplated hereby or thereby or the enforcement of any
of the terms of any thereof; provided, however, that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Collateral Agent as determined by a
final judgment of a court of competent jurisdiction. No Revolver Agent or
Term Loan Agent shall have any liability to any Party under this
subsection 6.1(d). Obligations of Non-Confirming Holders and Disbursing
Agents pursuant to this subsection 6.1(d) shall be subject to the
provisions of subsection 9.25 of the Term Loan Agreement.
(e) The agency hereby created shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon,
Collateral Agent in its individual capacity as a Revolver Agent, Term Loan
Agent or Term Loan Lender, as the case may be, hereunder or under any
Credit Document. With respect to its participation in the Revolver Loan
Obligations or Term Loan Obligations, Collateral Agent shall have the same
rights and powers hereunder as any other Secured Party and may exercise
the same as though it were not performing the duties and functions
delegated to it hereunder. Collateral Agent and its Affiliates may accept
deposits from, lend money to, acquire equity interests in and generally
engage in any kind of commercial banking, investment banking, trust,
financial advisory or other business with Company or any of its Affiliates
as if it were not performing the duties specified herein, and may accept
fees and other consideration from any Loan Party for services in
connection with this Agreement and otherwise without having to account for
the same to Creditor Parties.
(f) Collateral Agent may deem and treat the payee of any promissory
note or other evidence of indebtedness relating to the Creditor
Obligations as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof, signed by such
payee and in form satisfactory to Collateral Agent, shall have been filed
with Collateral Agent. Any request, authority or consent of any Person who
at the time of making such request or giving such authority or consent is
the holder of any such note or other evidence of indebtedness shall be
conclusive and binding on any subsequent holder, transferee or assignee of
such note or other evidence of indebtedness and of any note or notes or
other evidences of indebtedness issued in exchange therefor.
Notwithstanding anything to the contrary contained in the Term Loan
Documents, the Revolver Documents or Management Services and Reimbursement
Agreement, (i) no assignment or transfer (including, without limitation, a
refinancing or replacement) of any interest of (A) any Revolver Lender in
the Revolver Loan Exposure or Revolver Loans (including pursuant to any
refinancing, restatement, replacement or extension of the Revolver Credit
Agreement not prohibited hereunder), or (B) any interest of any Term Loan
Lender in the Term Loan or the Term Loans (including pursuant to any
refinancing, restatement, replacement or extension of the Term Loan
Agreement not prohibited hereunder), may in any case be made unless the
transferee, assignee or any Person who became a lender pursuant to a
refinancing, restatement, replacement or
32
extension of the Term Loan Agreement or Revolver Credit Agreement, as the
case may be, executes an Assumption Agreement in the form of Annex 1
hereto, (ii) no appointment (A) of any successor Revolver Agent under the
Revolver Credit Agreement (including pursuant to any refinancing,
restatement, replacement or extension of the Revolver Credit Agreement not
prohibited hereunder), (B) any successor Term Loan Agent or Term Loan
Documentation Agent under the Term Loan Agreement (including pursuant to
any refinancing, restatement, replacement or extension of the Term Loan
Agreement not prohibited hereunder), or (C) any successor Prepetition
Unsecured Claims Agent may in any case be made unless the successor
executes an Assumption Agreement in the form of Annex 1 hereto and (iii)
no Management Services and Reimbursement Agreement Beneficiary may assign
or transfer any of its interest in the Management Services and
Reimbursement Agreement without the prior written consent of Requisite
Revolver Lenders and Requisite Term Loan Lenders.
(g) Except as expressly provided herein and in the Collateral
Documents, Collateral Agent shall have no duty to take any affirmative
steps with respect to the collection of amounts payable in respect of the
Collateral. Collateral Agent shall incur no liability to any Party as a
result of any sale of any Collateral at any private sale.
(h) Collateral Agent may resign at any time by giving at least 30
days' notice thereof to the Parties and Collateral Agent may be removed as
Collateral Agent at any time by Requisite Obligees. In the event of such
resignation or removal of Collateral Agent, Requisite Obligees shall
thereupon have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed by Requisite
Obligees within 30 days after the resigning Collateral Agent's giving
notice of its intention to resign, then the resigning Collateral Agent may
appoint, on behalf of Secured Parties, a successor Collateral Agent and
Company hereby agrees to pay to such successor Collateral Agent, in
addition to any other amounts payable to Collateral Agent hereunder and
under the Collateral Documents, such reasonable annual fees in such
amounts and at such times as may be requested by such successor Collateral
Agent.
(i) Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent under
this Agreement and the Collateral Documents. After any retiring or removed
Collateral Agent's resignation or removal hereunder as Collateral Agent,
the provisions of this subsection 6.1 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while
it was acting as Collateral Agent.
(j) In no event shall Collateral Agent or any Secured Party be
liable or responsible for any funds or investments of funds held by any
Loan Party.
(k) Upon the proposed sale or other disposition of any Collateral
that is permitted by the Credit Agreements and is not prohibited by
subsection 2.4(a) or has been consented to by Requisite Obligees in
connection with an Enforcement Action, and for which a Loan Party desires
to obtain a security interest release from Collateral Agent,
33
such Loan Party shall deliver an Officer's Certificate to Collateral
Agent, Revolver Loan Agent and Term Loan Agent (i) stating that the
Collateral or the Capital Stock subject to such disposition is being sold
or otherwise disposed of in compliance with the terms hereof and of the
Credit Agreements and (ii) specifying the Collateral or Capital Stock
being sold or otherwise disposed of in the proposed transaction. Upon the
receipt of such Officer's Certificate, Collateral Agent shall, at Loan
Parties' joint and several expense, so long as Senior Agent has not
informed Collateral Agent that it (a) has reason to believe that the facts
stated in such Officer's Certificate are not true and correct and (b) if
the sale or other disposition of such item of Collateral or Capital Stock
constitutes an Asset Sale (as defined in each Credit Agreement) has not
received evidence satisfactory to it that arrangements satisfactory to it
have been made for delivery of the Net Asset Sale Proceeds (as defined in
each Credit Agreement) if and as required by subsection 2.4 of the
respective Credit Agreement, execute and deliver such releases of its
security interest in such Collateral as may be reasonably requested by
such Loan Party. In the event of any conflict or inconsistency between
this subsection 6.1(k) and the terms of any other Credit Document, the
terms of this Agreement shall prevail.
SECTION VII
7.1 MISCELLANEOUS.
(a) All notices and other communications provided for herein shall
be in writing and may be personally served, or sent by telefacsimile or
United States mail or courier service or electronic mail (as further
provided in this clause (a)) and shall be deemed to have been given (i)
when delivered in person or by courier service, (ii) upon receipt of
telefacsimile in complete and legible form, (iii) three Business Days
after deposit in the United States mail with postage prepaid and properly
addressed, or (iv) in the case of electronic mail to the extent provided
in this clause (a); provided that notices to Collateral Agent shall not be
effective until received. For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided
in this subsection 7.1(a)) shall be as set forth under each party's name
on the signature pages (including acknowledgments) hereof. Notices and
other communications to the Lenders, Revolver Agent and Term Loan Agents
hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to
procedures approved by Collateral Agent. Collateral Agent or any Borrower
may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited
to particular notices or communications.
(b) Subject to Section 7.1(c), no amendment, modification,
termination or waiver of any provision of this Agreement, and no consent
to any departure by any Party therefrom, shall in any event be effective
without the written concurrence of Requisite Revolver Lenders and
Requisite Term Loan Lenders; provided that (i) no such amendment,
modification, termination or waiver shall, without the consent of each
Secured Party with Secured Obligations directly affected thereby, amend,
modify, terminate or waive, or have the effect of amending, modifying,
terminating or waiving, the definition of "Requisite Obligees" or
subsection 3.1, (ii) no such amendment,
34
modification, termination or waiver shall, without the consent of each
Creditor Party (other than Prepetition Unsecured Claims Agent) with
Creditor Obligations directly affected thereby, amend, modify, terminate
or waive, or have the effect of amending, modifying, terminating or
waiving (A) subsection 4.1 or 4.2 or this subsection 7.1(b), or (B) any
other provision of this Agreement in a manner that would impose any
additional material obligations on such Creditor Party or prejudice any
material rights or remedies of such Creditor Party, (iii) no amendment,
modification, termination or waiver of any provision of subsection 2.1 or
2.2 or Section 5 or 6 or of any other provision of this Agreement which,
by its terms, expressly requires the approval or concurrence of Collateral
Agent shall be effective without the written concurrence of Collateral
Agent; and (iv) no such amendment, modification, termination or waiver of
this Agreement shall materially increase or materially adversely affect
obligations of any Loan Party or adversely affect any rights of a Loan
Party under the other Credit Documents in each case without such Loan
Party's prior written consent; provided, further, that, without the prior
written consent of Prepetition Unsecured Claims Agent, no such amendment,
modification, termination or waiver shall (x) modify or otherwise alter in
any manner adverse to the holders of the Prepetition Unsecured Claims
Participation Interest the right of such holders to receive Proceeds in
the amount and order of priority and under the circumstances described in
subsections 4.1(b), 4.1(c) and 4.2(a), as in effect on the date hereof,
(y) impose any additional obligation on Prepetition Unsecured Claims Agent
or (z) amend, modify, terminate or waive, or have the effect of amending,
modifying, terminating or waiving the rights of Prepetition Unsecured
Claims Agent under this subsection 7.1(b). To the extent (if any) the
provisions of this Agreement are inconsistent with the provisions set
forth in any Credit Agreement in any particular circumstance, then the
provisions set forth in this Agreement shall prevail to the extent
necessary to eliminate or avoid such inconsistency in such circumstance;
provided further, however, that no concurrence of any Lender or Lenders
shall be required (I) for any amendment, modification, termination or
waiver of any provision of subsection 7.1(c) or any other section or
provision herein that only affects the rights and obligations of Debenture
Disbursing Agent under this Agreement, so long as Term Loan Agents and
Term Loan Borrowers (and, after execution hereof, the Debenture Disbursing
Agent) approve such amendment, modification, termination or waiver; and
(II) for any amendment, modification, termination or waiver of any
provision of subsection 7.1(c) or any other section or provision that only
affects the rights and obligations of Allowed Class 6 Disbursing Agent
under this Agreement, so long as Term Loan Agents and Term Loan Borrowers
(and, after execution hereof, the Allowed Class 6 Disbursing Agent)
approve such amendment, modification, termination or waiver.
(c) All Term Loans that would otherwise be distributed on the
Allowed Class 6 Closing Date or the Determination Date (if the Allowed
Class 6 Closing Date shall have occurred prior to the Determination Date)
on account of Allowed Class 6 Interests shall be held on such date by the
Allowed Class 6 Disbursing Agent; and all Term Loans that would otherwise
be distributed on the Debenture Closing Date or the Determination Date (if
the Debenture Closing Date shall have occurred prior to the Determination
Date) on account of 9.25% Debentures shall be held on such date by the
Debenture Disbursing Agent. For so long as Debenture Disbursing Agent or
Allowed Class 6 Disbursing Agent holds Term Loans (subject to subsection
9.25 of the Term Loan
35
Agreement) that would otherwise have been Term Loans deemed made directly
by or distributed directly to Non-Confirming Holders, such Disbursing
Agent shall be the Term Loan Lender of record with respect to such Term
Loan Loans held by it (and the corresponding Term Loan Commitments and
Term Loan Exposure), except that no Disbursing Agent shall be deemed a
"Term Loan Lender", "Creditor Party" or "Secured Party" for purposes of
voting on any matters (including the granting of any approvals, consents
or waivers) with respect to this Agreement; provided, however, that this
clause (c) shall not be construed as permitting, without the prior written
consent of the relevant Non-Confirming Holder, (a) modification of the
rights, duties or obligations under the this Agreement (other than with
respect to voting on any matters) of any Disbursing Agent or of the
Non-Confirming Holders for whom such Disbursing Agent serves as record
Term Loan Lender, without concurrent and corresponding modification of the
rights, duties and obligations of Term Loan Lenders other than such
Disbursing Agent, (b) this Agreement to be modified to require that any
Disbursing Agent or Non-Confirming Holder make any loan, advance or other
extension of credit to, or incur any additional obligation to, any
Borrower or any other Person on or after the Closing Date, other than the
Term Loans and monetary obligations pursuant to the provisions of the Term
Loan Documents in effect on the Closing Date, or (c) modification of the
provisions of this clause (c) in a manner that is adverse in any material
respect to the Disbursing Agents or the Non-Confirming Holders. For the
avoidance of any doubt, the Term Loans, Term Loan Commitments and Term
Loan Exposure of each Disbursing Agent shall be excluded in calculating
the number or percentage of Term Loans, Term Loan Commitments, Term Loan
Exposure and/or Term Loan Lenders whose votes are required and obtained
(or not obtained, as the case may be) for purposes of voting on any
matters with respect to this Agreement.
Any Non-Confirming Holder that executes and delivers to Collateral
Agent, in accordance with subsection 9.25 of the Term Loan Agreement, an
acknowledgment and counterpart, in substantially the form of Annex 2
hereto, shall cease to be a Non-Confirming Holder and shall thereupon
become a "Term Loan Lender", "Creditor Party" and "Secured Party" for all
purposes hereunder and such Non-Confirming Holder holding a Term Loan and
Term Loan Commitments in amounts equal to the amounts so confirmed by the
Debenture Disbursing Agent, the Debenture Disbursing Agent shall be deemed
to have assigned such Term Loan and Term Loan Commitment to such Term Loan
Lender on such date for all purposes of this Agreement (without having to
execute an Assumption Agreement in the form of Annex 1 hereto
notwithstanding subsection 6.1(f)).
Nothing in this Agreement, express or implied, shall be construed to
confer upon any Non-Confirming Holder that does not become a Term Loan
Lender any legal or equitable right, remedy or claim under or by reason of
this Agreement; Collateral Agent shall not have, by reason of this
Agreement, a fiduciary relationship in respect of any Disbursing Agent or
any Non-Confirming Holder; and nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon
Collateral Agent any obligations to any Disbursing Agent or any
Non-Confirming Holder in respect of this Agreement except as expressly set
forth herein.
36
Subject to the occurrence of the Debenture Closing Date, the
Debenture Disbursing Agent shall execute and deliver this Agreement and
the Term Loan Agreement as the agent for the Non-Confirming Holders on
account of the 9.25% Debentures under the Approved Plan of Reorganization
and the Confirmation Order. Subject to the occurrence of the Allowed Class
6 Closing Date, the Allowed Class 6 Disbursing Agent shall execute and
deliver this Agreement and the Term Loan Agreement as the agent for the
Non-Confirming Holders on account of the Allowed Class 6 Claims under the
Approved Plan of Reorganization and the Confirmation Order.
(d) Subject to the provisions of subsection 6.1(f), this Agreement
shall be binding upon and inure to the benefit of Collateral Agent and
each other Party and, other than with respect to the Management Services
and Reimbursement Agreement Beneficiaries (except pursuant to a merger of
Covanta otherwise permitted pursuant to the Credit Agreements), their
respective successors and assigns, including successors to Revolver Agents
and Revolver Lenders under the Revolver Loan Documents, Term Agents and
Term Loan Lenders under the Term Loan Documents and Prepetition Unsecured
Claims Agent.
(e) This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument,
and any of the parties hereto may execute this Agreement by signing any
such counterpart.
(f) This Agreement shall become effective on the Closing Date and
upon the execution of this Agreement by each Loan Party, each Term Loan
Lender, each Revolver Lender, each Term Loan Agent, Revolver Agent, each
Management Services and Reimbursement Agreement Beneficiary, Prepetition
Unsecured Claims Agent and Collateral Agent.
(g) The Collateral Agent may deem and treat the Secured Parties as
the "Secured Parties" for all purposes hereof unless and until a notice of
the assignment or transfer of any interest held by such Party shall have
been filed with the Collateral Agent in accordance with subsection 6.1(f).
The Company agrees that it will advise the Collateral Agent of any
transfer by any Secured Party of any Revolver Loan Exposure or Term Loan
Exposure held by such Secured Party and will, from time to time upon
request of the Collateral Agent, deliver a list to the Collateral Agent
(which shall be distributed by the Collateral Agent to each Secured Party)
setting forth, for the Revolver Loan Exposure, Term Loan Exposure and
Management Services and Reimbursement Agreement Obligations, the unpaid
principal amount and holder thereof. The Collateral Agent may rely on such
list unless, after the distribution thereof, the Collateral Agent is
notified by a Secured Party that such information as set forth on such
list is inaccurate.
(h) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE PARTIES
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES IRREVOCABLY
(I) ACCEPTS FOR ITSELF, IN CONNECTION WITH ITS PROPERTIES,
37
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, (III)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH PARTY HERETO AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 7.1(a) HEREOF, (IV) AGREES THAT SERVICE OF PROCESS AS PROVIDED
IN CLAUSE (III) IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH
PERSON IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT, (V) AGREES THAT THE
PARTIES HERETO RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS
OF ANY OTHER JURISDICTION, AND (VI) AGREES THAT THE PROVISIONS OF THIS
SUBSECTION 7.1(h) RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
(i) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THE INTERCREDITOR RELATIONSHIP THAT IS
BEING ESTABLISHED. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims, and all other common
law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each
has already relied on the waiver in entering into this Agreement, and that
each will continue to rely on the waiver in their related future dealings.
Each party hereto further warrants and represents that each has reviewed
this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, REPLACEMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
(j) NO CLAIM MAY BE MADE BY ANY CREDITOR PARTY OR ANY OF THEIR
RESPECTIVE AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, OR
ATTORNEYS AGAINST ANY OTHER CREDITOR PARTY OR THEIR RESPECTIVE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, OR ATTORNEYS FOR ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR WRONGFUL CONDUCT
(WHETHER THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY
LAW) IN CONNECTION WITH,
38
ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED AND
RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH; AND EACH CREDITOR PARTY HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN
ITS FAVOR.
(k) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER OR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER
LAW.
(l) All undertakings and agreements contained in this Agreement are
solely for the benefit of the Creditor Parties and there are no other
Persons (other than the Loan Parties to the extent expressly provided
herein) who are intended to be benefited in any way by this Agreement.
Each Loan Party agrees that no Creditor Party shall have any liability to
any of the Loan Parties for performing its obligations and
responsibilities under this Agreement with respect to the other Creditor
Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
LOAN PARTIES:
COVANTA POWER INTERNATIONAL HOLDINGS, INC.
By: _____________________________________
Name: Ashish Sarkar
Title: Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Attn: Timothy J. Simpson
COVANTA ENERGY AMERICAS, INC.
By: _____________________________________
Name: Anthony Orlando
Title: Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Attn: Timothy J. Simpson
EACH OF THE ENTITIES NAMED ON SCHEDULE A
ANNEXED HERETO, AS REVOLVER BORROWERS,
TERM BORROWERS AND MANAGEMENT SERVICES AND
REIMBURSEMENT AGREEMENT OBLIGORS
By: _____________________________________
Name: Anthony Orlando
Authorized Officer
Notice Address for each Borrower and
Management Services Agreement Obligor:
c/o Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Attn: Timothy J. Simpson
Schedule A
1. Covanta Power Development, Inc.
2. Covanta Power Development of Bolivia, Inc.
3. Covanta Waste to Energy of Italy, Inc.
4. OPI Quezon, Inc.
MANAGEMENT SERVICES AND REIMBURSEMENT
AGREEMENT BENEFICIARIES:
COVANTA ENERGY CORPORATION
By: _____________________________________
Name: Anthony Orlando
Title: Authorized Officer
Notice Address:
c/o Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Attn: Timothy J. Simpson
EACH OF THE ENTITIES NAMED ON SCHEDULE B
ANNEXED HERETO, AS MANAGEMENT SERVICES AND
REIMBURSEMENT AGREEMENT BENEFICIARIES
By: _____________________________________
Name: Timothy J. Simpson
Authorized Officer
Notice Address for each Management
Services Agreement Beneficiary:
c/o Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Attn: Timothy J. Simpson
Schedule B
1. Covanta Energy Group, Inc.
2. Covanta Projects, Inc.
AGENTS AND LENDERS:
BANK OF AMERICA, N.A.,
as Collateral Agent and Term Loan Agent
By:
------------------------------------------------
Name: Henry Y. Yu
Title: Managing Director
Notice Address:
Bank of America, N.A., as Administrative Agent
555 So. Flower Street, 17th Floor
CA9-706-17-54
Los Angeles, California 90071
Attention: David Price, Vice President
Voice: (213) 345-1300
Fax: (415) 503-5011
email: david.price@bankofamerica.com
BANK OF AMERICA, N.A.,
as Term Loan Lender
By:
------------------------------------------------
Name: Henry Y. Yu
Title: Managing Director
Notice Address:
Bank of America, N.A.
555 California Street
San Francisco, CA 94104-1503
Phone: 415-622-4438
Fax:415-622-0234
Attention: Henry Yu
Email: henry.yu@bankofamerica.com
BANK OF AMERICA, N.A.,
as Cash Management Bank
By:
---------------------------
Name: Henry Y. Yu
Title: Managing Director
Notice Address:
DEUTSCHE BANK SECURITIES, INC.,
as Term Loan Documentation Agent
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Notice Address:
Attention:
Deutsche Bank Securities, Inc.
60 Wall Street
New York, NY 10005
DEUTSCHE BANK AG, NEW YORK BRANCH,
By: DB Services New Jersey, Inc.
as Revolver Agent
By:
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Name:
Title:
By:
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Name:
Title:
Notice Address:
Attention: Keith Braun
Deutsche Bank AG, New York Branch
60 Wall Street
New York, NY 10005
DEUTSCHE BANK AG, NEW YORK BRANCH,
By: DB Services New Jersey, Inc.
as a Revolver Lender
By:
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Name:
Title:
By:
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Name:
Title:
Notice Address:
Attention: Troy Ennico
Deutsche Bank AG, New York Branch
60 Wall Street
New York, NY 10005
BANC OF AMERICA SECURITIES LLC, as
Agent for BANK OF AMERICA, N.A., as a Term
Loan Lender
By: ___________________________________
Name:
Title:
BANK OF TOKYO MITSUBISHI (CANADA),
as a Term Loan Lender
By: ___________________________________
Name: Angelo Bisutti
Title: Senior Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Term Loan Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
BEAR STEARNS & CO. INC.,
as a Term Loan Lender
By: ___________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Term Loan Lender
By: ___________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as a Term Loan Lender
By: ___________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Term Loan Lender
By:
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Name: Keith Braun
Title: Director
By:
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Name: Patrick Dowling
Title: Vice President
HSBC BANK USA,
as a Term Loan Lender
By:
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Name:
Title:
IIB BANK LIMITED,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
JPMORGAN CHASE BANK
(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK),
as a Term Loan Lender
By:
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Name: Michael Lancia
Title: Vice President
KBC BANK NV, NEW YORK BRANCH,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
Notice Address:
Attention: Rose Pagan
KBC Bank NV, New York Branch
125 West 55th Street
New York, NY 10019
Telephone No.: (212) 541-0657
Fax No.: (212) 956-5581
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
Notice Address:
420 Fifth Avenue
New York, New York 10018
Attention: Structured Finance
Telephone: 212-703-5303
Telecopier: 212-703-5262
MERRILL LYNCH, PIERCE, FENNER &
SMITH, INCORPORATED,
as a Term Loan Lender
By:
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Name:
Title:
MINTO APARTMENTS LIMITED,
as a Term Loan Lender
By:
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Name: Peter Goring
Title: Senior Vice President
By:
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Name: Steve Creighton
Title: Senior Vice President
QUANTUM PARTNERS LDC
C/O SOROS FUND MANAGEMENT LLC,
as a Term Loan Lender
By:
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Name:
Title:
SPECIAL SITUATIONS INVESTING GROUP,
as a Term Loan Lender
By:
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Name:
Title:
SUNTRUST BANK,
as a Term Loan Lender
By:
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Name:
Title:
TD SECURITIES (USA) INC.,
as a Term Loan Lender
By:
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Name:
Title:
THE BANK OF NEW YORK,
as a Term Loan Lender
By:
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Name:
Title:
THE TORONTO-DOMINION BANK,
as a Term Loan Lender
By:
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Name:
Title:
THE TORONTO-DOMINION BANK,
as a Term Loan Lender(1)
By:
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Name:
Title:
- ----------
(1) With respect to the interest acquired from Sun Life Assurance Company of
Canada (formerly known as Clarica Life Insurance Company) and HSBC Bank Canada
on October 28, 2003 by assignment.
UBS LOAN FINANCE LLC,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRSTAR BANK, N.A.),
as a Term Loan Lender
By:
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Name: Alan R. Milster
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Term Loan Lender
By:
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Name: Joel Thomas
Title: Director
WESTLB AG (FORMERLY KNOWN AS WESTDEUTSCHE
LANDESBANK GIROZENTRALE), NEW YORK BRANCH,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
2005646 ONTARIO INC.,
as a Term Loan Lender
By:
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Name:
Title:
4212657 CANADA INC., SUCCESSOR TO DRESDNER
BANK CANADA,
as a Term Loan Lender
By:
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Name:
Title:
By:
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Name:
Title:
PREPETITION UNSECURED CLAIMS AGENT:
U.S. BANK NATIONAL ASSOCIATION, AS
PREPETITION UNSECURED CLAIMS AGENT
By:
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Name:
Title:
Notice Address:
DEBENTURE DISBURSING AGENT:
WELLS FARGO BANK, N.A., AS DEBENTURE
DISBURSING AGENT
By:
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Name:
Title:
Notice Address:
ALLOWED CLASS 6 DISBURSING AGENT:
U.S. BANK NATIONAL ASSOCIATION, AS ALLOWED
CLASS 6 DISBURSING AGENT
By:
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Name:
Title:
Notice Address:
Annex 1 to
Intercreditor Agreement
ASSUMPTION AGREEMENT, dated as of __________, 200_, made by
_________________ (the "ADDITIONAL CREDITOR PARTY").
W I T N E S S E T H :
WHEREAS, Covanta Power International Holdings, Inc. ("COMPANY") and
the Subsidiaries of Company listed on the signature pages thereof; Covanta
Energy Americas, Inc., certain Persons listed on the signature pages thereof as
Term Loan Lenders (together with any lenders that subsequently become party
thereto, the "TERM LOAN LENDERS"); certain financial institutions listed on the
signature pages thereof as Revolver Lenders (the "REVOLVER LENDERS"); Deutsche
Bank AG, New York Branch, as administrative agent for Revolver Lenders, Bank of
America, N.A., as administrative agent for Term Loan Lenders, as collateral
agent, and cash management bank, Deutsche Bank Securities, Inc., as
documentation agent for Term Loan Lenders, the companies listed on the signature
pages thereof as Management Services and Reimbursement Agreement Beneficiaries,
the companies listed on the signature pages thereof as Management Services and
Reimbursement Agreement Obligors, U.S Bank National Association, as agent for
the holders of the Prepetition Unsecured Claims Participation Interest, and
Wells Fargo Bank, N.A., as Debenture Disbursing Agent, and U.S. Bank National
Association, as Allowed Class 6 Disbursing Agent are parties to that certain
Intercreditor Agreement dated as of March 10, 2004 (as amended, supplemented or
otherwise modified from time to time (the "INTERCREDITOR AGREEMENT");
WHEREAS, the Loan Parties have executed the Collateral Documents
pursuant to which the Loan Parties party to each such document have granted to
the Collateral Agent, for the benefit of the Secured Parties, a security
interest in the Collateral to secure their respective obligations arising in
connection with the Credit Document;
WHEREAS, subsection 6.1(f) of the Intercreditor Agreement requires
the Additional Creditor Party to become a party to the Intercreditor Agreement;
and
WHEREAS, the Additional Creditor Party has agreed to execute and
deliver this Assumption Agreement in order to become a party to the
Intercreditor Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Intercreditor Agreement and used herein shall have the meanings given to
them in the Intercreditor Agreement.
2. Intercreditor Agreement. By executing and delivering this
Assumption Agreement, the Additional Creditor Party hereby becomes a party to
the Intercreditor Agreement as [Revolver Agent][Term Loan Agent][Term Loan
Documentation Agent][a Revolver Lender][a Term Loan Lender][Prepetition
Unsecured Claims Agent] and Secured Party thereunder with the same force and
effect as if originally named therein as [Revolver
A-1-1
Agent][Term Loan Agent][Term Loan Documentation Agent][a Revolver Lender][a Term
Loan Lender][Prepetition Unsecured Claims Agent] and a Secured Party and,
without limiting the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of [Revolver Agent][Term Loan Agent][Term Loan
Documentation Agent][a Revolver Lender][a Term Loan Lender][Prepetition
Unsecured Claims Agent] and a Secured Party thereunder and agrees to be bound by
the terms thereof.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL CREDITOR PARTY]
By:
-----------------------------
Name:
Title:
A-1-2
Annex 2 to
Intercreditor Agreement
ACKNOWLEDGMENT AND COUNTERPART
ACKNOWLEDGMENT AND COUNTERPART (this "COUNTERPART"), dated as of _______,
is entered into in connection with the Intercreditor Agreement dated as of March
10, 2004 (said Intercreditor Agreement, as it may heretofore have been and as it
may hereafter be further amended, restated, supplemented or otherwise modified
from time to time being the "INTERCREDITOR AGREEMENT"; capitalized terms used
herein not otherwise defined herein shall have the meanings ascribed therein),
by and among Covanta Power International Holdings, Inc. ("COMPANY") and the
Subsidiaries of Company listed on the signature pages thereof, as Borrowers;
Covanta Energy Americas, Inc.; certain Persons listed on the signature pages
thereof as Term Loan Lenders (together with any other lenders that subsequently
become party thereto, the "TERM LOAN LENDERS"); certain financial institutions
listed on the signature pages thereof as Revolver Lenders; Deutsche Bank AG, New
York Branch, as administrative agent for Revolver Lenders; Bank of America,
N.A., as administrative agent for Term Loan Lenders, as collateral agent, and
cash management bank; Deutsche Bank Securities, Inc., as documentation agent for
Term Loan Lenders; the companies listed on the signature pages thereof as
Management Services and Reimbursement Agreement Beneficiaries; the companies
listed on the signature pages thereof as Management Services and Reimbursement
Agreement Obligors; U.S. Bank National Association, as agent for the holders of
the Prepetition Unsecured Claims Participation Interest, and Wells Fargo Bank,
N.A., as Debenture Disbursing Agent, and U.S. Bank National Association, as
Allowed Class 6 Disbursing Agent. The undersigned, by executing and delivering
this Counterpart, hereby acknowledges and agrees (a) that upon acceptance of
this Counterpart by Administrative Agent it shall become party to the
Intercreditor Agreement as a "Term Loan Lender" in accordance with the terms
thereof and shall have the rights and obligations of a Term Loan Lender under
the Intercreditor Agreement, (b) that it shall be bound by all of the terms of
the Intercreditor Agreement as a Term Loan Lender, and (c) that this Counterpart
may be attached to the Intercreditor Agreement. The undersigned hereby further
agrees that the address and facsimile number of the undersigned for notice
purposes pursuant to Section 7.1(a) of the Intercreditor Agreement shall be
initially as set forth below.
[NAME OF TERM LOAN LENDER]
By:
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Name:
Title:
Notice Address:
A-2-1