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Exhibit 10(j)
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement, dated as of May 31, 1995, among WMX
Technologies, Inc., a Delaware corporation (the "Guarantor"), OHM Corporation,
an Ohio corporation ("OHM"), and OHM Remediation Services Corp., an Ohio
corporation ("Remediation") (and, together with OHM, collectively the
"Borrowers" and individually a "Borrower"),
RECITALS:
WHEREAS, the Borrowers are parties to that certain Revolving Credit
Agreement dated as of May 31, 1995 (as amended and supplemented from time to
time, the "Credit Agreement") among the Borrowers, Citicorp USA, Inc., as
Administrative Agent (the "Agent"), Bank of America Illinois, as Issuing and
Paying Agent and Co-Agent (the "Paying Agent") and the financial institutions
from time to time party thereto (collectively, with the Agent and the Paying
Agent, the "Lenders" and individually a "Lender"); and
WHEREAS, Rust International Inc. ("Rust"), a subsidiary of the
Guarantor, owns approximately 37% of the outstanding common stock of OHM; and
WHEREAS, the Lenders have required as a condition to the entry by the
Borrowers and the Lenders in and to the Credit Agreement that the Guarantor
execute and deliver that certain Guaranty dated as of May 31, 1995 (as amended
and supplemented from time to time, the "Guaranty") by the Guarantor in favor
of the Lenders pursuant to which the Guarantor has guaranteed the prompt and
complete repayment of the Obligations (as defined in the Guaranty) subject to
the limitations set forth in the Guaranty; and
WHEREAS, the Guarantor has agreed to execute and deliver guarantees
and OHM has issued certain warrants for the purchase of common stock of OHM
pursuant to the Guarantee Agreement dated May 31, 1995 by and between OHM and
the Guarantor entered into pursuant to the Reorganization Agreement; and
WHEREAS, the Borrowers desire to execute and deliver this
Reimbursement Agreement; and
WHEREAS, the obligations of the Borrowers under and pursuant to this
Reimbursement Agreement are secured under and pursuant to the Security
Documents; and
WHEREAS, the Lenders and the Guarantor each desire to execute and
deliver that certain Intercreditor Agreement dated as of May 31, 1995 (the
"Intercreditor Agreement") by and among the Agent, the Paying Agent and the
Guarantor in order to set forth certain agreements, rights and interests with
respect to and in connection with their respective interests with respect to
the Borrowers as well as their respective security interests in and liens on
certain collateral specified therein;
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NOW, THEREFORE, in consideration of the mutual promises contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
REIMBURSEMENT
SECTION 1.01 AGREEMENT TO REIMBURSE GUARANTOR. (a) Reimbursement. The
Borrowers absolutely and unconditionally agree, jointly and severally, to
reimburse the Guarantor immediately on demand for each payment made by the
Guarantor following a written demand under the Guaranty ("Guaranty Payments") by
either or both of the Agent or the Paying Agent by paying to the Guarantor as
provided herein an amount equal to the amount of such Guaranty Payment (a
"Reimbursement Payment"). Payment shall be made by the Borrowers upon receipt
of written demand for payment from the Guarantor setting forth the amount due
and owing but without any need of further documentation. A copy of such written
demand for payment shall be given to OHM addressed to "Independent Directors" in
the manner set forth in Section 5.08 hereof for notice to either Borrower. Any
defects or omissions regarding such copy of written demand for payment to
"Independent Directors" will not terminate or modify in any way the Borrowers'
obligations pursuant to this Agreement.
Each Reimbursement Payment to be made by the Borrowers hereunder shall
be made in lawful money of the United States of America by wire transfer of
immediately available funds to Mellon Bank, N.A. Pittsburgh, Pennsylvania,
A.B.A. Number 043000261, for credit to the account of the Guarantor, Account
Number: 1979409 (or to such other bank or account as the Guarantor may specify
in writing).
If the Borrowers fail to pay any amount payable by the Borrowers
hereunder when due (including, without limitation, accrued but unpaid
interest), such amount shall bear interest (computed on the basis of a 360 day
year and actual days elapsed) from the due date thereof until paid in full, at
a rate per annum equal to the lesser of (i) the sum of the Prime Rate from time
to time in effect plus 2% or (ii) the maximum non-usurious rate permitted by
applicable law, payable on demand.
(b) Obligations Absolute. The obligations of the Borrowers under
this Agreement shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever irrespective of:
(i) any lack of validity or enforceability of any of the
Obligations, the Credit Agreement, this Agreement, any of the Security
Documents or any of the Transaction Documents;
(ii) the absence of any attempt by, or on behalf of, the
Guarantor to collect or to take any other action to enforce, all or
any part of the obligations hereunder whether from or against either
Borrower, any other guarantor of the Obligations or any other person;
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(iii) the election of any remedy by, or on behalf of, the
Guarantor with respect to all or any part of the obligations of the
Borrowers hereunder;
(iv) the waiver, consent, extension, forbearance or
granting of any indulgence by, or on behalf of, the Lenders or the
Guarantor with respect to any provision of any of the Transaction
Documents;
(v) any lack of validity or enforceability of, or any
waiver or forbearance by or on behalf of the Guarantor, of the
Guarantor's subrogation rights under or in connection with the
Guaranty, the Intercreditor Agreement or the Transaction Documents;
(vi) any amendment or waiver of or any consent to
departure from all or any of the Transaction Documents, the
Intercreditor Agreement, this Agreement or Security Agreements;
(vii) the existence of any claim, set-off, defense or other
rights which either Borrower may have at any time against the Agent,
the Paying Agent, any Lender or the Guarantor (other than the defense
of payment to the Guarantor in accordance with the terms of this
Agreement), or any other person or entity, whether in connection with
this Agreement, the Security Documents, the Transaction Documents, the
Intercreditor Agreement or any unrelated transaction;
(viii) any statement or any other document presented under
the Guaranty proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in
any respect whatsoever;
(ix) the failure of the Guarantor to take any steps to
perfect and maintain its security interest in or to preserve its
rights to, any security or collateral for the obligations of the
Borrowers hereunder;
(x) the election by, or on behalf of, the Guarantor in
any proceeding instituted under Chapter 11 of Title 11 of the United
States Code (11 U.S.C. 101 et. seq.) (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(xi) the disallowance under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the Guarantor for payment
of all or any part of the obligations of the Borrowers hereunder or
any expenses in connection herewith;
(xii) the invalidity, unenforceability or avoidance of any
obligation of the Guarantor to make any payment to the Guaranteed
Parties under the Guaranty or the failure of or waiver by the
Guarantor to contest, object to or otherwise challenge any request by
any Lender for the Guarantor to make any payment under the Guaranty;
or
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(xiii) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of either
Borrower.
(c) Liability of the Guarantor. Each Borrower assumes all risks
of the acts or omissions of the Agent, the Paying Agent or any Lender with
respect to its use of the Guaranty. Neither the Guarantor nor any of its
officers or directors shall be liable or responsible for: (i) the use which
may be made of the Guaranty or for any acts or omissions of the Agent, the
Paying Agent or any Lender or any transferee in connection therewith; (ii) the
validity, sufficiency or genuineness of documents, or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) any other
circumstances whatsoever in making or failing to make payment under the
Guaranty.
The Borrowers acknowledge and agree that the Guarantor shall not in
any way be responsible and shall not bear any liability for any failure by or
on behalf of any Lender to extend credit or provide funds to either Borrower or
for any other action or inaction of any Lender under and pursuant to the Credit
Agreement or otherwise.
Except as otherwise expressly provided in this Agreement or any other
agreement between or among the parties hereto, the Guarantor shall have no
liability to the Borrowers (i) on account of making payment upon receipt of a
demand under the Guaranty or (ii) except for damages arising out of the gross
negligence or willful misconduct of the Guarantor, with respect to any other
matters pertaining hereto.
(d) Subrogation. In addition to, but not in limitation of, all of
the rights, interest and remedies of the Guarantor under this Agreement, the
Security Documents and the Intercreditor Agreement, each Borrower acknowledges
and agrees that the Guarantor shall upon and to the extent of any payment made
by the Guarantor pursuant to a claim made under the Guaranty be subrogated to,
and a beneficiary of, all of the rights and interests of the Lenders, the Agent
and the Paying Agent under and to the Credit Agreement, the Transaction
Documents and any collateral or security granted by either Borrower thereunder.
SECTION 1.02 PAYMENT OF INTEREST AND FEES. If any sum becomes payable
pursuant to this Agreement on a day which is not a Business Day, the date for
payment thereof shall be extended, without penalty, to the next succeeding
Business Day, and such extended time shall be included in the computation of
interest and fees.
SECTION 1.03 NO DEDUCTIONS. All sums payable by the Borrowers
hereunder, whether of Reimbursement Amount, interest, expenses or otherwise,
shall be paid in full, without any deduction or withholding whatsoever. In the
event that either Borrower is compelled by any present or future law, rule or
regulation to make any such deduction or withholding, such Borrower shall
nevertheless pay the Guarantor such amounts as will result in the receipt by the
Guarantor of the sum it would have received had no such deduction or withholding
been required to be made.
In furtherance of and in addition to the foregoing, each of the
Borrowers hereby waives any and all rights, whether now existing or from time
to time arising, to set off and apply any and
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all trade deposits or other accounts of the Guarantor of any kind whatsoever at
any time held by either Borrower and any other indebtedness at any time owing
by the Guarantor to or for the credit or the account of either Borrower against
any and all of the obligations of either Borrower now or hereafter owing under
this Agreement.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 2.01 REPRESENTATIONS AND WARRANTIES. The Borrowers represent
and warrant to the Guarantor that as of the date hereof:
(a) Existence, Power and Authority. Each Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Ohio, has all requisite power and
authority to execute and deliver this Agreement, the Security
Documents and the other Transaction Documents to which it is a party,
to perform its obligations thereunder, and to own and operate its
properties and to carry on its business as now conducted and as
presently proposed to be conducted.
(b) Binding Agreement, Etc. The execution and delivery
and compliance with all of the provisions of this Agreement, the
Security Documents and the other Transaction Documents to which it is
a party (i) are within the corporate powers of each Borrower, (ii) do
not violate any provisions of any law or any order of any court,
regulatory or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the articles of
incorporation or By-laws of either Borrower or result in the
imposition of any liens or encumbrances on any property of either
Borrower (except as contemplated by the Security Documents) and (iii)
have been duly authorized by proper corporate action on the part of
either Borrower (no action by the stockholders of either Borrower
being required by law, by the articles of incorporation or By-laws of
such Borrower or otherwise), executed and delivered by each Borrower.
This Agreement, the Security Documents and such other Transaction
Documents constitute the legal, valid and binding obligations,
contracts and agreements of each Borrower enforceable in accordance
with their terms.
(c) Authorizations and Approvals. No authorization or
approval or other action by, and no notice to or filing (except for
filing required under any applicable Uniform Commercial Code pursuant
to the Security Documents) with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by either Borrower of this Agreement, the Guaranty or any
other Transaction Document to which it is a party.
SECTION 2.02 LIENS; MERGERS, CONSOLIDATIONS AND SALES. Each of the
Borrowers covenants and agrees with the Guarantor that so long as any amounts
may be drawn under the
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Guaranty and thereafter, so long as any amounts remain outstanding or
obligations remain unfulfilled or unpaid under this Agreement, such Borrower
will not and will not permit any subsidiary to, directly or indirectly, unless
the Guarantor shall otherwise consent in writing:
(a) Liens, Etc. Create, incur, assume or suffer to exist
any Lien upon or with respect to any of its properties, now owned or
hereafter acquired, or assign or otherwise convey, any right to
receive income; provided, however, that the foregoing restrictions
shall not be applicable to the following:
(i) Liens granted to or held by the Guarantor pursuant to
the Security Documents;
(ii) Liens arising under the Bank Security Documents;
(iii) Customary Permitted Liens;
(iv) contracts with or for the Government, directly or
indirectly providing for advance, partial or progress payments on such
contracts or for any lien, paramount to all other liens, upon moneys
advanced or paid pursuant to such contracts, or upon any material or
supplies in connection with the performance of such contracts to
secure such payments to the Government; and liens or other evidences
of interest in favor of the Government, paramount to all other liens,
directly or indirectly, for the Government to secure indebtedness
incurred and owing to the Government in connection with any such
contracts;
(v) Liens listed on Schedule 5.02(a)(iii) to the Credit
Agreement as in effect on the date hereof (but not any increase in the
debt secured thereby or any enlargement of properties or assets
covered thereby);
(vi) Liens with respect to judgments which do not result
in a Default or Event of Default under or a breach of the Credit
Agreement;
(vii) Liens on the assets of Remediation securing
indebtedness under the Bank of Tokyo Agreement, to the extent such
indebtedness does not exceed $8,000,000 and provided that such Liens
attach only to those assets the acquisition of which was financed or
refinanced with the proceeds of such indebtedness;
(viii) Liens securing Permitted Other Indebtedness;
(ix) rights reserved to or vested in any municipality or
governmental, statutory or public authority by the terms of any
rights, power, franchise, grant, license or permit, or by any
provision of law, to terminate such right, power, franchise, grant,
license or permit or to purchase, condemn, expropriate or recapture or
to designate a purchaser of any of the property of either Borrower;
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(x) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or regulate any
property of either Borrower or to use such property in a manner which
does not materially impair the use of such property for the purpose
for which it is held by such Borrower;
(xi) rights of a common owner of any interest in real
estate, rights of way or easements held by either Borrower and such
common owner as tenants in common or through other common ownership;
(xii) zoning, planning, ordinances and municipal
regulations;
(xiii) servitudes, easement, restrictions, rights of way and
other similar rights in real or immovable property or any interest
therein, provided the same does not materially impair the use of such
property for the purposes for which it is held by either Borrower; and
(xiv) Liens on the assets of a Subsidiary at the time it
becomes a Subsidiary.
(b) Mergers, Consolidations and Sales. Be a party to any
merger or consolidation, nor sell, transfer, lease or otherwise
dispose of all or any substantial part of its property, assets or
business unless the surviving, continuing or resulting corporation (if
not a Borrower) or the corporation that purchases, leases or otherwise
acquires all or substantially all of the property, assets or business
of such Borrower (the "Surviving Company") is a solvent corporation
organized under the laws of the United States of America or any
jurisdiction thereof and expressly and unconditionally assumes the due
and punctual performance of all obligations of such Borrower hereunder
and under the Security Documents, by an instrument in writing
delivered to the Guarantor in form and substance reasonably
satisfactory to the Guarantor, which instrument shall have been
delivered to the Guarantor at the time of or prior to the consummation
of the transaction in question. No such transaction shall be
consummated unless the form and substance of such instrument shall
have been approved in writing by the Guarantor in advance of such
consummation. The Borrowers and the Surviving Company (if not a
Borrower) shall, prior to or simultaneously with such merger,
consolidation, sale, transfer, lease or other disposition, take all
such actions and execute and deliver all such agreements, documents
and instruments necessary to continue and maintain the perfection of
the liens and security interests under and pursuant to the Security
Documents for the benefit of the Guarantor and at least the same
rights with respect to the security interests in the Collateral which
the Guarantor had immediately prior to such transaction. Nothing in
this clause (b) shall constitute a release of or an agreement to
release any security interests created by any Security Document. All
liens and security interests under the Security Documents shall
survive all such transactions.
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SECTION 2.03 FREEZE EVENTS. If at any time the aggregate of all
amounts outstanding under the Credit Agreement are less than the Guarantied
Amount, each of the Borrowers covenants and agrees with the Guarantor that,
after the occurrence of a Freeze Event, such Borrower shall not deliver either a
letter of credit application or a Notice of Borrowing (as defined in the Credit
Agreement) to the Agent, the Paying Agent or any other Lender under the Credit
Agreement unless and until the Guarantor is notified of the amount of the
Obligations outstanding following such Freeze Event in accordance with Section 3
of the Guaranty. If at any time the aggregate of all amounts outstanding under
the Credit Agreement are less than the Guarantied Amount, each of the Borrowers
further covenants and agrees that, in the event that a Freeze Event shall occur
subsequent to the delivery by such Borrower of either a letter of credit
application or a Notice of Borrowing but prior to the issuance of such letter of
credit or the making of such Advance (as defined in the Credit Agreement), such
Borrower shall terminate such letter of credit application and not accept such
Advance.
SECTION 2.04. REPORTS AND OTHER INFORMATION. Each of the Borrowers
covenants and agrees with the Guarantor that, so long as any amounts may be
drawn under the Guaranty and thereafter, so long as any amounts remain
outstanding or obligations remain unfulfilled or unpaid under the Agreement,
the Borrowers will furnish to the Guarantor all financial statements, reports,
certificates and any other information required to be delivered to any Lender
under and pursuant to the Credit Agreement. In furtherance of the foregoing,
each of the Borrowers covenants and agrees with the Guarantor that the
Borrowers shall furnish to the Guarantor all correspondence and other
information of either Borrower relating to or resulting from any default or
event of default under the Credit Agreement.
ARTICLE III
EVENTS OF DEFAULT
SECTION 3.01 EVENTS OF DEFAULT. If the Borrowers shall fail to pay
when due any amounts payable under this Agreement (herein called an "Event of
Default"), then the Guarantor, may, at its option and in addition to any right,
power or remedy permitted by law or equity, without further notice to either
Borrower except as may be required by law or the Security Documents, pursue any
action available at law or in equity, including without limitation, any actions
or remedies under and pursuant to the Security Documents.
ARTICLE IV
DEFINITIONS
SECTION 4.01 CERTAIN DEFINED TERMS. Capitalized terms when used in
this Agreement shall have the same meanings as defined in the Credit Agreement
or the Guaranty, unless otherwise defined herein. In addition, as used in this
Agreement, the following terms shall have the respective meanings set forth
below (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"AGENT" shall have the meaning set forth in the Recitals hereto.
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"AGREEMENT" shall mean this Reimbursement Agreement as the same may be
amended, supplemented or otherwise modified.
"BANK OF TOKYO AGREEMENT" shall have the meaning ascribed thereto in
the Credit Agreement.
"BANK SECURITY DOCUMENTS" shall mean, collectively, the Security
Agreement (as defined in the Credit Agreement), the Pledge Agreement (as
defined in the Credit Agreement) and all other agreements, documents and
instruments executed and delivered in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time..
"BORROWER AND BORROWERS" shall have the meaning set forth in the
Recitals hereof.
"BUSINESS DAY" shall mean any day on which banks are not required or
authorized to close in New York, New York, Chicago, Illinois or Pittsburgh,
Pennsylvania.
"COLLATERAL" shall mean the Collateral (as defined in the Security
Agreement) and the Pledged Collateral (as defined in the Pledge Agreement).
"CONSOLIDATED" refers to the consolidation of the accounts of the
Borrowers and their Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation.
"CREDIT AGREEMENT" shall have the meaning set forth in the Recitals
hereof.
"CUSTOMARY PERMITTED LIENS" shall have the meaning ascribed thereto in
the Credit Agreement.
"EVENT OF DEFAULT" shall have such meaning as is ascribed to it in
Section 3.01.
"FREEZE EVENT" shall have the meaning ascribed thereto in the Guaranty.
"GOVERNMENT" means the government of any country or sovereign state,
or of any state, province, municipality or other political subdivision thereof,
or any department, agency, public corporation or other instrumentality of any
of the foregoing.
"GUARANTIED AMOUNT" shall have the meaning ascribed thereto in the
Guaranty.
"GUARANTY" shall have the meaning set forth in the Recitals hereof.
"GUARANTY PAYMENTS" shall have the meaning set forth in Section 1.01
hereof.
"GUARANTOR" shall have the meaning set forth in the Recitals hereof.
"INTERCREDITOR AGREEMENT" shall have the meaning set forth in the
Recitals hereof.
"LENDERS" shall have the meaning set forth in the Recitals hereof.
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"LIEN" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including, but
not limited to, easements, rights of way, zoning restrictions and the like),
lien (statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing and the filing
of any financing statement (other than a financing statement filed by a "true"
lessor pursuant to Section 9-408 of the Uniform Commercial Code) naming the
owner of the asset to which such Lien relates as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"OHM" shall have the meaning set forth in the Recitals hereof.
"OBLIGATIONS" shall have the meaning set forth in Section 1 of the
Guaranty.
"PAYING AGENT" shall have the meaning set forth in the Recitals hereto.
"PERMITTED OTHER INDEBTEDNESS" shall have the meaning ascribed thereto
in the Credit Agreement.
"PERSON" shall mean an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association,
joint venture or other entity or a government or any political subdivision or
agency thereof.
"PLEDGE AGREEMENT" shall mean that certain Pledge Agreement dated as
of May 31, 1995 from OHM to the Guarantor as the same may be amended or
supplemented from time to time in accordance with the terms and provisions
thereof.
"PRIME RATE" shall mean the rate of interest publicly announced from
time to time by Bank of America Illinois, Chicago, Illinois, as its Prime Rate
(or its equivalent) for United States Dollar loans. Any change in the Prime
Rate shall take effect on the day specified in the public announcement of such
change.
"REMEDIATION" shall have the meaning set forth in the Recitals hereof.
"REORGANIZATION AGREEMENT" shall mean that certain Agreement and Plan
of Reorganization dated December 5, 1994 by and among OHM Rust Remedial
Services, Inc., Enclean Environmental Services Group, Inc., Rust Environmental,
Inc. and Rust International, Inc., as the same may be amended, supplemented or
otherwise modified from time to time.
"SECURITY AGREEMENT" shall mean that certain Security Agreement dated
as of May 31, 1995 among the Borrowers and the Guarantor as the same may be
amended or supplemented from time to time in accordance with the terms and
provisions thereof.
"SECURITY DOCUMENTS" shall mean the Security Agreement and the Pledge
Agreement, together with any and all other agreements, documents and
instruments heretofore or hereafter
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securing the Borrowers' obligations under this Agreement, including, without
limitation, any UCC-1 financing statements filed pursuant to or in connection
therewith.
"SUBSIDIARY" shall mean any Person the financial statements of which
are Consolidated with those of either Borrower.
"TRANSACTION DOCUMENTS" shall mean the Guaranty, the Credit Agreement,
the Security Documents, this Agreement, the Bank Security Documents and any
other document, agreement or instrument executed and/or delivered in connection
therewith.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 INDEMNITY, COSTS, EXPENSES AND TAXES. The Borrowers
hereby jointly and severally agree to indemnify and hold harmless the Guarantor
and each of its affiliates and their respective directors, officers, employees
and agents from and against any and all losses, claims, damages, liabilities and
expenses (including, without limitation, reasonable fees and disbursements of
counsel) which may be incurred by or asserted against any such indemnified party
in connection with or arising out of any investigation, litigation or
proceeding, whether or not such indemnified party is a party thereto, related to
any transaction or proposed transaction contemplated by the Transaction
Documents or any use of the Guaranty or any payment thereunder. The Borrowers
also hereby jointly and severally agree to indemnify and hold the Guarantor
harmless from and against, and to pay on demand, any and all reasonable fees and
expenses, if any, in connection with the enforcement or defense of the rights of
the Guarantor in connection with this Agreement, the Security Documents or the
Guaranty, or the collection of any monies due under this Agreement, the
Guaranty, the Security Documents or such other documents which may be delivered
in connection with this Agreement, the Security Documents or the Guaranty. Any
and all amounts due and owing under this Section 5.01 shall be payable by the
Borrowers upon demand by the Guarantor. Payment of all such amounts shall be
made in accordance with Section 1.01 hereof.
SECTION 5.02 SURVIVAL OF THIS AGREEMENT. All covenants, agreements,
representations and warranties (such representations and warranties being true
and correct only as of the date hereof) made in this Agreement shall survive the
issuance by the Guarantor of the Guaranty and shall continue in full force and
effect so long as the Guaranty shall be unexpired or any sums due hereunder
shall be outstanding and unpaid, regardless of any investigation made by any
person. Whenever in this Agreement the Guarantor is referred to, such reference
shall be deemed to include the successors and assigns of the Guarantor and all
covenants, promises and agreements by or on behalf of the Borrowers which are
contained in this Agreement shall inure to the benefit of the successors and
assigns of the Guarantor. The rights and duties of the Borrowers, however, may
not be assigned or transferred, except as specifically provided in this
Agreement or with the prior written consent of the Guarantor, and all
obligations of the Borrowers hereunder shall continue in full force and effect
notwithstanding any assignment by either Borrower of any of its rights or
obligations under any of the Transaction Documents or the Credit Agreement or
any
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entering into, or consent by either Borrower to, any supplement or amendment to
any of the Transaction Documents or the Credit Agreement.
SECTION 5.03 MODIFICATION OF THIS AGREEMENT. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by the Guarantor and the
Borrowers. Any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on either
Borrower in any case shall entitle either Borrower to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 5.04 WAIVER OF RIGHTS BY THE GUARANTOR. No course of dealing
or failure or delay on the part of the Guarantor in exercising any right, power
or privilege hereunder or under the Guaranty or any other Transaction Document
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise or the exercise of any other
right or privilege. The rights of the Guarantor under the Guaranty and the
rights of the Guarantor under this Agreement are cumulative and not exclusive of
any rights or remedies which the Guarantor would otherwise have.
SECTION 5.05 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 5.06 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
SECTION 5.07 CONSENT TO JURISDICTION; COUNTERCLAIMS; FORUM NON
CONVENIENS.
(a) Exclusive Jurisdiction. Except as provided in subsection (b)
of this Section 5.07, the Borrowers and the Guarantor agree that all disputes
between them arising out of or related to the relationship established between
them in connection with this Agreement, whether arising in contract, tort,
equity or otherwise, shall be resolved only by state or federal courts located
in Chicago, Illinois, but the parties acknowledge that any appeals from those
courts may have to be heard by a court located outside of Chicago, Illinois.
(b) Other Jurisdictions. The Guarantor shall have the right to
proceed against the Borrowers or their real or personal property in a court in
any location to enable the Guarantor to obtain personal jurisdiction over the
Borrowers or to enforce a judgment or other court order entered in favor of the
Guarantor.
(c) Venue; Forum Non Conveniens. Each of the Borrowers and the
Guarantor waives any objection that it may have (including, without limitation,
any objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 5.07.
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SECTION 5.08 NOTICES. All notices and other communications required or
desired to be served, given or delivered hereunder shall be in writing or by a
telecommunications device capable of creating a printed record and recording the
date and time of transmission and shall be addressed to the party to be notified
as follows:
If to the Guarantor, to: WMX Technologies, Inc.
3003 Butterfield Road
Oak Brook, IL 60521
Attention: Chief Financial Officer
Telecopy: (708) 572-1340
If to the Borrowers or
either of them, to: OHM Corporation
16406 U.S. Route 224 East
P.O. Box 551
Findlay, OH 45839-0551|
Attention: General Counsel
Telecopy: (419) 424-4985
If to the Agent or the Lenders,
or any of them, to: Citicorp USA, Inc.
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, IL 60606
Attention: Emily Rosenstock,
Vice President
Telecopy: (312) 993-1050
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall
be deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mail, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) one
(1) day following delivery thereof to a reputable overnight courier service
with delivery charges prepaid; or (iv) upon confirmation of receipt thereof if
transmitted by a telecommunications device.
SECTION 5.09 DESCRIPTIVE HEADINGS, ETC. The descriptive headings of
the several Articles, Sections and Subsections of this Agreement are inserted
for convenience only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
SECTION 5.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but both or all of
which, when taken together, shall constitute but one instrument, and shall
become effective when a set of copies hereof which, when taken together, bear
the signatures of each of the parties hereto shall be delivered to each of the
Borrowers and the Guarantor.
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SECTION 5.11 FURTHER ASSURANCES. So long as this Agreement or the
Guaranty remains in effect or any amount is or may become due or owing to the
Guarantor hereunder, each Borrower shall execute and deliver to the Guarantor
all such documents and instruments and do all such other acts and things as may
be necessary or required by the Guarantor to enable the Guarantor to exercise
and enforce its rights under this Agreement and to realize thereon, and record
and file and re-record and refile all such documents and instruments, at such
time or times, in such manner and at such place or places, all as may be
necessary or required by the Guarantor to validate, preserve and protect the
position of the Guarantor under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective duly authorized officers as of
the date first above written.
OHM CORPORATION
By:______________________________
Name:______________________
Title:_____________________
OHM REMEDIATION SERVICES CORP.
By:______________________________
Name:______________________
Title:_____________________
WMX TECHNOLOGIES, INC.
By:______________________________
Name:______________________
Title:_____________________
By:______________________________
Name:______________________
Title:_____________________
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Each of the undersigned hereby acknowledges receipt of a copy of this
Agreement.
Acknowledged:
CITICORP USA, INC., as
Administrative Agent
By:____________________________
Name:____________________
Title:___________________
BANK OF AMERICA ILLINOIS, as
Issuing and Paying Agent
By:____________________________
Name:____________________
Title:___________________
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