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EXECUTION COPY
Exhibit 10(e)
$150,000,000
REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 31, 1995
AMONG
OHM CORPORATION
AND
OHM REMEDIATION SERVICES CORP.,
AS BORROWERS
AND
CITICORP USA, INC.,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA ILLINOIS,
AS ISSUING AND PAYING AGENT AND CO-AGENT
AND
THE FINANCIAL INSTITUTIONS SET FORTH ON
THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT . . . . . . . . . . . . . . . 20
SECTION 2.01. The Advances and Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.02. The Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.03. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.05. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.06. Joint and Several Liability; Repayment of Advances and Letters of Credit . . . . . . . . . . . . . . . . . . 25
SECTION 2.07. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.08. Additional Interest on Eurodollar Rate Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.10. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.11. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.13. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.14. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.15. Termination or Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE III
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.01. Conditions Precedent to the Effectiveness of This Agreement . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.02. Conditions Precedent to Each Extension of Credit Hereunder . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.01. Representations and Warranties of the Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE V
COVENANTS OF THE BORROWERS . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.01. Affirmative Covenants of the Borrowers Other Than Reporting Requirements . . . . . . . . . . . . . . . . . . 45
SECTION 5.02. Negative Covenants of the Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.03. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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SECTION PAGE
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ARTICLE VI
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VII
THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.02. Agents' Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.03. Citicorp USA, BAI and Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.06. Successor Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.01. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.02. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.03. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.05. Obligations Several . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.06. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.07. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 8.08. Binding Effect; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 8.09. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.10. MUTUAL WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.11. CONSENT TO JURISDICTION; SERVICE OF PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.12. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.13. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.14. Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.15. The Transaction Documents; Actions by the Banks; Release and Re-Grant of Collateral; Release of WMX
Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.16. Termination of Prior Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.17. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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SECTION PAGE
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Annexes
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ANNEX A -- FACILITY A RATE DETERMINATION TABLE
ANNEX B -- FACILITY B RATE DETERMINATION TABLE
Exhibits
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EXHIBIT A -- FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT B -- FORM OF NOTE
EXHIBIT C -- FORM OF NOTICE OF BORROWING
EXHIBIT D -- FORM OF SECURITY AGREEMENT AMENDMENT
EXHIBIT E -- FORM OF PLEDGE AGREEMENT AMENDMENT
EXHIBIT F -- FORM OF WMX GUARANTY
EXHIBIT G -- FORM OF WMX INTERCREDITOR AGREEMENT
EXHIBIT H -- FORM OF BORROWERS' OPINION OF COUNSEL
EXHIBIT I -- FORM OF OPINION OF SPECIAL COUNSEL TO THE AGENT
EXHIBIT J -- FORM OF REQUEST FOR RELEASE OF COLLATERAL
Schedules
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SCHEDULE 2.12 -- DOMESTIC AND EURODOLLAR LENDING OFFICES
SCHEDULE 2.14(d) -- EXISTING LETTERS OF CREDIT
SCHEDULE 4.01(k) -- DOMESTIC AND FOREIGN SUBSIDIARIES
SCHEDULE 5.02(a)(iv) -- EXISTING LIENS
SCHEDULE 5.02(i)(ii) -- EXISTING INVESTMENTS
SCHEDULE 5.02(j)(vii) -- EXISTING INDEBTEDNESS
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EXECUTION COPY
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of May 31, 1995 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time hereafter, the "Agreement") is among OHM Corporation, an Ohio
corporation ("OHM"), OHM Remediation Services Corp., an Ohio corporation
("Remediation" and, together with OHM, sometimes hereinafter referred to
collectively as the "Borrowers" and each individually as a "Borrower"), the
financial institutions listed on the signature pages hereto (together with any
other financial institutions from time to time parties hereto, the "Banks" and
each a "Bank"), Citicorp USA, Inc., a Delaware corporation, in its individual
capacity (in such capacity, "Citicorp USA") and as administrative agent (in
such capacity as administrative agent, the "Administrative Agent") for the
Banks, and Bank of America Illinois, in its individual capacity (in such
capacity, "BAI"), as issuing and paying agent and co-agent (in such capacity as
issuing and paying agent and co- agent, the "Issuing and Paying Agent"). In
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Commitment" means, with respect to any Bank at any time,
such Bank's Contractual Percentage multiplied by the Total A Commitment at such
time.
"Accounts Receivable Reserve" means the charge taken by the
Borrowers in the fiscal quarter ending December, 1994 in the amount of
$25,000,000, in connection with certain accounts receivable or other amounts
due from clients of the Borrowers, primarily related to certain litigation
between the Borrowers and CITGO Petroleum Corporation.
"Advance" means an advance by a Bank to either Borrower as
part of a Borrowing and refers to a Eurodollar Rate Advance or a Base Rate
Advance, each of which shall be a "Type" of Advance.
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"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, is controlled by or is under common control
with such Person or is a director or officer of such Person.
"Alternate Base Rate" means the fluctuating rate per annum as
shall be in effect from time to time which rate per annum shall at all times be
equal to the highest of (but in no event higher than the maximum rate permitted
by law):
(a) The rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) The sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i)
1/2 of 1% per annum, plus (ii) the rate per annum obtained by dividing
(A) the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average being determined weekly on each Monday (or, if any such
day is not a Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by Citibank on the
basis of such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank in respect of liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States, plus (iii) the average
during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the United
States; and
(c) The sum of (i) 1/2 of 1% per annum plus (ii) the
Federal Funds Rate.
"Applicable Base Rate Margin" means the Facility A Base Rate
Margin for Facility A Advances and the Facility B Base Rate Margin for Facility
B Advances.
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"Applicable Eurodollar Margin" means the Facility A Eurodollar
Margin for Facility A Advances and the Facility B Eurodollar Margin for Facility
B Advances.
"Applicable Issuance Fee Percentages" means the Facility A
Issuance Fee Percentages for Facility A Letters of Credit and the Facility B
Issuance Fee Percentages for Facility B Letters of Credit.
"Applicable Lending Office" means, with respect to each Bank,
(i) such Bank's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and (ii) such Bank's Domestic Lending Office in the case of a Base Rate
Advance or a participation in a Letter of Credit.
"Applicable Rate Determination Table" means, with respect to
Facility A, the Facility A Rate Determination Table and, with respect to
Facility B, the Facility B Rate Determination Table.
"Assignee" has the meaning specified in Section 8.08.
"Assignment" has the meaning specified in Section 8.08.
"Assignment and Acceptance" means an Assignment and Acceptance
in the form attached hereto as Exhibit A.
"Authorized Officer" means, with respect to either Borrower,
any of the Chairman of the Board, the President, any Executive Vice President,
any Vice President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer or any Assistant Controller of such Borrower, as has been duly
authorized to act on behalf of such Borrower hereunder.
"B Commitment" means, with respect to any Bank at any time,
such Bank's Contractual Percentage multiplied by the Total B Commitment at such
time.
"Bank of Tokyo Agreement" means that certain Master Loan and
Security Agreement dated as of May 11, 1993, between Remediation and BOT
Financial Corporation, as the same has been or may be amended from time to
time, providing for loans of up to $8,000,000 to finance the capital
expenditures in connection with Remediation's Baird and McGuire incineration
project in Holbrook, Massachusetts.
"Base Rate Advance" means an Advance which bears interest as
provided in Section 2.07(b).
"Base Rate Margin" has the meaning specified in Section
2.07(b).
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"Borrower" and "Borrowers" have the meanings specified in the
Preamble.
"Borrowing" means a borrowing consisting of Advances of the
same Type made on the same day by the Banks.
"Business Day" means any day on which banks are not required
or authorized to close in New York City or Chicago, Illinois and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in each interbank eurodollar market.
"Capital National" means Capital National Insurance Corp., a
Vermont corporation and a wholly-owned subsidiary of OHM.
"Citibank" means Citibank, N.A., a national banking
association.
"Collateral" means all property and interests in property now
owned or hereafter acquired by either or both of the Borrowers or any
Subsidiary in or upon which a security interest, lien or mortgage is granted to
the Issuing and Paying Agent by such Borrower or Subsidiary, as the case may
be, whether under this Agreement, the other Transaction Documents, or under any
other documents, instruments or writings executed and delivered by such
Borrower or Subsidiary, as the case may be, pursuant thereto or in connection
therewith.
"Commitment" means, as to each Bank, the amount in U.S.
dollars set forth opposite the name of such Bank on the signature pages hereof
(or, if applicable, on the signature pages of the Assignment and Acceptance
pursuant to which such Bank became a Bank hereunder or last made an Assignment
hereunder, in each case, pursuant to Section 8.08) with respect to amounts it
will make available to the Borrowers by way of Advances and participations in
Letters of Credit pursuant to the terms of this Agreement, as such amount may
be reduced from time to time pursuant to Section 2.15.
"Commitment Fee Agreement" means that certain letter agreement
dated April 19, 1995, executed by each of the Borrowers, the Administrative
Agent and the Issuing and Paying Agent, with respect to the payment of
commitment fees payable in connection with this 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; provided,
however, that for purposes of calculating all of the financial covenants for
all periods, each of the NSC Companies shall be de-consolidated from OHM and
its other Consolidated Subsidiaries and shall be accounted for on
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an equity basis, in each case, in accordance with generally accepted accounting
principles.
"Contractual Percentage" means, as to each Bank at any time,
such Bank's Commitment at such time divided by the Total Commitment at such
time.
"Credit Rating" means, at any time, with respect to WMX, the
credit rating on the long-term senior unsecured debt of WMX then most recently
publicly announced by either Moody's or Standard & Poor's.
"Customary Permitted Liens" shall mean:
(i) Liens (other than Environmental Liens) for taxes,
assessments or governmental charges or claims not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with the provisions of generally
accepted accounting principles;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with the provisions of
generally accepted accounting principles;
(iii) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of borrowed
money), statutory obligations and other similar obligations or arising
as a result of progress payments under government contracts, or Liens
arising under statute or by operation of law (through principles of
subrogation) to secure surety, indemnity, payment, performance or
other similar bonds in the ordinary course of business;
(iv) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering with the ordinary conduct of
the business of the applicable Borrower or its Subsidiaries; and
(v) extensions, renewals or replacements of any Lien referred
to in paragraphs (i) through (iv) above,
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provided that the principal amount of the obligation secured thereby
is not increased and further provided that any such extension, renewal
or replacement is limited to the property originally encumbered
thereby.
"Debentures" means those certain 8% Convertible Subordinated
Debentures due October 1, 2006 in the original principal amount of $57,500,000
issued by OHM (formerly known as Environmental Treatment and Technologies
Corp.) under that certain Indenture dated as of October 1, 1986 between OHM and
United States Trust Company of New York, as Trustee, as amended (the
"Indenture").
"Default" means any event or condition which with the giving
of notice or passage of time, or both, would constitute an Event of Default.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite its
name on Schedule 2.12 hereto, or such other office of such Bank as such Bank
may from time to time specify to the Borrowers, the Administrative Agent and
the Issuing and Paying Agent.
"EBITDA" means, for any period, on a Consolidated basis for
the Borrowers and their Subsidiaries, gross revenues minus direct subcontract
costs minus costs of services minus selling, general and administration
expenses plus depreciation expense and amortization expense for such period (in
each case to the extent such items were included in selling, general and
administration expenses and other costs of services), plus, in the case of any
period which includes the fiscal quarter ending December 31, 1994, the amount
of the Accounts Receivable Reserve.
"EBITDA to Interest Expense Ratio" means, as of the last day
of any fiscal quarter, the ratio of (i) EBITDA for the preceding four fiscal
quarter period ending as of such day to (ii) Interest Expense for such period.
"Effective Date" has the meaning specified in Section 3.01.
"EFSC" means Environmental Financial Services Corp., a
Delaware corporation and a wholly-owned subsidiary of OHM.
"Eligible Interest Rate Contract" has the meaning specified in
Section 2.16.
"Environmental Laws" means any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980,
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as amended, the Superfund Amendments and Authorization Act of 1986, the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act or
any other federal, state or local statute, regulation, ordinance, order, or
decree, or common law, whether in existence now or hereafter enacted, and as
such may be amended from time to time, relating to health, safety or the
environment.
"Environmental Lien" means a lien in favor of any governmental
entity for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such
governmental entity in response to a release of a hazardous or toxic waste,
substance or constituent, or other substance into the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and the
rulings issued thereunder.
"ERISA Affiliate" means any (i) corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the IRC) as either Borrower; (ii) partnership or other trade or
business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the IRC) with either Borrower; and (iii)
member of the same affiliated service group (within the meaning of Section
414(m) of the IRC) as either Borrower, any corporation described in clause (i)
above or any partnership, trade or business described in clause (ii) above.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office" opposite
its name on Schedule 2.12 hereto, or such other office of such Bank as such
Bank may from time to time specify to the Borrowers, the Administrative Agent
and the Issuing and Paying Agent.
"Eurodollar Margin" has the meaning specified in Section
2.07(a).
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate
per annum equal to the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks to prime banks in the interbank eurodollar market
at approximately 11:00 A.M. (New York City time) two Business Days before the
first day of such
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Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing and for a period
equal to such Interest Period. The Eurodollar Rate for the Interest Period for
each Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Issuing and Paying Agent on the basis of applicable rates
furnished to and received by the Issuing and Paying Agent from the Reference
Banks two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an Advance which bears
interest as provided in Section 2.07(a).
"Eurodollar Rate Reserve Percentage" of any Bank for the
Interest Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for such Bank with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Letters of Credit" has the meaning specified in
Section 2.14(d).
"Facility A Advances" means, on any date, all Advances, or
portions thereof, which are part of Facility A Outstandings on such date.
"Facility A Base Rate Margin" means the Base Rate Margin
determined in accordance with the Facility A Rate Determination Table.
"Facility A Eurodollar Margin" means the Eurodollar Margin
determined in accordance with the Facility A Rate Determination Table.
"Facility A Issuance Fee Percentages" means the Issuance Fee
Percentages determined in accordance with the Facility A Rate Determination
Table.
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"Facility A Letters of Credit" means, on any date, all Letters
of Credit, or any portion thereof, which are part of Facility A Outstandings on
such date.
"Facility A Outstandings" means, on any date, all Advances and
Letters of Credit on such date other than Advances and Letters of Credit, or
any portions thereof, which are Facility B Outstandings.
"Facility A Rate Determination Table" means the table set
forth as Annex A to this Agreement.
"Facility B Advances" means, on any date, all advances, or
portions thereof, which are part of Facility B Outstandings on such date.
"Facility B Base Rate Margin" means the Base Rate Margin
determined in accordance with the Facility B Rate Determination Table.
"Facility B Issuance Fee Percentages" means the Issuance Fee
Percentages determined in accordance with the Facility B Rate Determination
Table.
"Facility B Letters of Credit" means, on any date, all Letters
of Credit, or any portion thereof, which are part of Facility B Outstandings on
such date.
"Facility B Level 1 Period" means any period of time during
which the Margins and Issuance Fee Percentages for Facility B Outstandings are
calculated by reference to Level 1 on the Facility B Rate Determination Table.
"Facility B Level 2 Period" means any period of time during
which the Margins and Issuance Fee Percentages for Facility B Outstandings are
calculated by reference to Level 2 on the Facility B Rate Determination Table.
"Facility B Level 3 Period" means any period of time during
which the Margins and Issuance Fee Percentages for Facility B Outstandings are
calculated by reference to Level 3 on the Facility B Rate Determination Table.
"Facility B Level 4 Period" means any period of time during
which the Margins and Issuance Fee Percentages for Facility B Outstandings are
calculated by reference to Level 4 on the Facility B Rate Determination Table.
"Facility B Level 5 Period" means any period of time during
which the Margins and Issuance Fee Percentages for Facility B Outstandings are
calculated by reference to Level 5 on the Facility B Rate Determination Table.
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"Facility B Outstandings" means, on any date, the aggregate
amount of Advances and Letters of Credit outstanding on such date minus the
amount of the Total A Commitment on such date. The amount of Advances and
Letters of Credit consisting of Facility A Outstandings and Facility B
Outstandings, respectively, will be determined on a daily basis. In making
such daily allocation, all outstanding Advances, up to the amount of the Total
A Commitment, will be part of Facility A Outstandings. If the Total A
Commitment exceeds the amount of outstanding Advances on such date, the
aggregate undrawn face amount of Letters of Credit, up to the amount by which
the Total A Commitment exceeds the amount of outstanding Advances, will be
Facility A Outstandings on such date.
"Facility B Rate Determination Table" means the table set
forth as Annex B to this Agreement.
"Facing Fee" has the meaning specified in Section 2.04(c).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Issuing and Paying Agent from
three Federal funds brokers of recognized standing selected by it.
"Financial Letter of Credit" means each Letter of Credit
determined by the Issuing Bank to be of the type of letter of credit defined as
"financial guaranty-type standby letters of credit" in footnote 13 to Appendix
A to the Risk Based Capital Guidelines issued by the Comptroller of the
Currency.
"Funded Debt" means any Indebtedness of either Borrower,
created, issued, incurred, assumed or guaranteed (other than the undrawn face
amount of letters of credit), whether secured or unsecured, and regardless of
maturity date. Funded Debt includes, without limitation, the Notes.
"Freeze Event" means a "Freeze Event" under and as defined in
the WMX Guaranty.
"Freeze Notice" means a "Freeze Notice" under and as defined
in the WMX Guaranty.
"Funded Debt to EBITDA Ratio" means, as of the last day of any
fiscal quarter, the ratio of (i) the aggregate amount of Funded Debt of the
Borrowers and their Subsidiaries on a
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Consolidated basis as at such date to (ii) EBITDA for the preceding four fiscal
quarter period ending as of such date.
"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.
"Guaranties" means, for any Person, (i) all indebtedness or
other obligations of any other Person the payment or collection of which such
Person has guaranteed (except by reason of endorsement for collection in the
ordinary course of business) or in respect of which such Person is liable,
contingently or otherwise, including, without limitation, liable by way of
agreement to purchase, to provide funds for payment, to supply funds to or
otherwise to invest in such other Person, or otherwise to assure a creditor
against loss and (ii) all indebtedness or other obligations of any other Person
for borrowed money or for the deferred purchase price of property or services
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any mortgage, deed of trust, pledge,
lien, security interest or other charge or encumbrance upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness or obligations.
"Guaranty Release Date" has the meaning specified in Section
2.04(d).
"Indebtedness" means, for any Person, (i) all indebtedness or
other obligations of such Person for borrowed money, including the deferred
purchase price of property or services which would constitute indebtedness for
purposes of generally accepted accounting principles, (ii) all Guaranties of
such Person, (iii) Long Term Lease Obligations of such Person, (iv) withdrawal
liability incurred under ERISA by such Person to any Multiemployer Plan, (v)
all obligations of such Person in respect of any letter of credit issued for
the account of such Person and (vi) all liabilities in respect of unfunded
vested benefits under any Plan; provided, however, that "Indebtedness" shall
not include (a) non-recourse indebtedness as to which the obligor has no
personal liability and which is not secured by any Lien upon any of the
obligor's property or (b) credit card indebtedness incurred by or on behalf of
either Borrower in the ordinary course of business to purchase property or
services if and to the extent such indebtedness is paid in full not less often
than monthly, or (c) short-term obligations for the deferred payment of
insurance premiums.
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"Indenture" has the meaning specified in the definition of
"Debentures".
"Interest Expense" means, for any period, total interest
expense of the Borrowers and their Subsidiaries on a Consolidated basis,
whether paid or accrued (including the interest component of capital leases),
and all commissions, fees and discounts with respect to (i) letters of credit,
to the extent such expenses have not otherwise been accounted for as costs of
services and (ii) all other Funded Debt, but excluding interest expense not
payable in cash (including amortization of discount), all as determined in
conformity with generally accepted accounting principles.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date of
such Advance, or the date of the conversion of such Advance into a Eurodollar
Rate Advance, and ending on the last day of the period selected by the
Borrowers pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the applicable Borrower
pursuant to the provisions below. The duration of each such Interest Period
shall be 1, 2, 3 or 6 months, as the applicable Borrower may, upon notice
received by the Issuing and Paying Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first day of such Interest
Period with respect to such Eurodollar Rate Advance, select; provided, however,
that:
(i) the Borrowers may not select any Interest Period
which ends after the Stated Termination Date;
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Interest Rate Contracts" means interest rate cap agreements,
interest rate swap agreements, interest rate collar agreements, options on any
of the foregoing, or any other agreements or arrangements designed to provide
protection against fluctuations in interest rates.
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"Interest Rate and Fee Adjustment Date" means, with respect to
each fiscal quarter of the Borrowers ending after September 30, 1995, (a) the
first day of the month (occurring in such fiscal quarter) in which the
Borrowers shall be deemed to have delivered to the Administrative Agent and the
Issuing and Paying Agent, the certificate described in Section 5.03(e) setting
forth the calculation of the EBITDA to Interest Expense Ratio and the Funded
Debt to EBITDA Ratio for the Measurement Period ending on the last day of the
immediately preceding fiscal quarter, in the case of any reduction of the
applicable interest rates or fees hereunder, pursuant to Section 2.07 or
Section 2.04, respectively, based on the information contained in such
certificate, and (b) the first day of such fiscal quarter, in the case of any
increase in the applicable interest rates or fees hereunder, pursuant to
Section 2.07 or 2.04, respectively, based on the information contained in such
certificate. Notwithstanding anything contained herein to the contrary, if the
Borrowers shall deliver such certificate to the Administrative Agent and the
Issuing and Paying Agent later than the 25th day of any month, it shall be
deemed to have been delivered in the succeeding month. In all other cases, the
certificate shall be deemed delivered in the month of its actual delivery to
the Administrative Agent and the Issuing and Paying Agent.
"IRC" means the Internal Revenue Code of 1986, as amended from
time to time, the regulations and rules promulgated thereunder, as in effect
from time to time, and any successor statute and/or regulations and rules.
"IRS" means the Internal Revenue Service (or any successor).
"Issuance Fee" has the meaning specified in Section 2.04(b).
"Issuance Fee Percentage" has the meaning specified in Section
2.04(b).
"Issuing Bank" means, as the context may require, any Bank in
its capacity as the issuing bank with respect to any Letter of Credit
hereunder.
"Letters of Credit" has the meaning specified in Section
2.14(a), and shall include any and all Existing Letters of Credit.
"Level" means each of the pricing levels set forth in the Rate
Determination Tables.
"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
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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.
"Long Term Lease Obligations" means, at any time for any
Person, the total principal payments remaining at such time in respect of the
rental or hire of real or personal property of any kind by such Person (whether
or not designated therein as rental or additional rental) under capitalized
leases (the principal component of any payments under capitalized leases being
determined in accordance with generally accepted accounting principles).
"Majority Banks" means Banks having Commitments totaling at
least 51% of the Total Commitment.
"Margin Stock" has the meaning assigned to such term in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Margins" means the Eurodollar Margin and the Base Rate Margin.
"Measurement Period" means, with respect to any fiscal quarter
of the Borrowers, the four fiscal quarter period ending on the last day of the
immediately preceding fiscal quarter.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", as defined
in Section 4001(a)(3) of ERISA.
"Net Income" means, with respect to any fiscal period of the
Borrowers and their Subsidiaries, the Consolidated net income of the Borrowers
and their Subsidiaries after provision for income taxes for such fiscal period,
as determined in accordance with generally accepted accounting principles and
reported on the Consolidated financial statements of the Borrowers and their
Subsidiaries for such fiscal period, less any gain arising from (and plus any
loss arising from) extraordinary items or any other non-recurring transaction,
as determined in accordance with generally accepted accounting principles.
"Net Worth" means as at any date of determination, an amount
equal to (i) total assets of the Borrowers and their
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Subsidiaries (on a Consolidated basis) as at such date, minus (ii) total
liabilities of the Borrowers and their Subsidiaries (on a Consolidated basis)
as at such date; provided, however, that the Accounts Receivable Reserve shall
not be reflected in the calculation of Net Worth for the purposes of this
Agreement.
"Non-Financial Letter of Credit" means each Letter of Credit
which, in the determination of the Issuing Bank, is not a Financial Letter of
Credit.
"Non-Use Fee" has the meaning specified in Section 2.04(a).
"Note" means any of the Revolving Credit Notes of the
Borrowers payable to the order of each of the Banks, in substantially the form
of Exhibit B, in each case, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Notice of Borrowing" means a telephone, cable or telex notice
from either Borrower to the Issuing and Paying Agent, in each case confirmed
immediately by a letter in substantially the form of Exhibit C.
"NSC Companies" means NSC Corporation, National Surface
Cleaning, Inc. and National Service Cleaning Corp., and any other wholly-owned
direct or indirect Subsidiary of any of the foregoing.
"NSC Corporation" means NSC Corporation, a Delaware
corporation.
"Obligations" means and includes all loans, advances, debts,
liabilities, obligations, covenants and duties owing to either the
Administrative Agent, the Issuing and Paying Agent or any of the Banks or any
of their respective Affiliates from either or both of the Borrowers of any kind
or nature, present or future, arising under this Agreement, under the other
Transactions Documents, and under any other agreement, instrument or document
executed pursuant to or in connection with this Agreement, whether or not for
the payment of money, whether arising by reason of an extension of credit,
opening of a letter of credit, loan, guaranty, indemnification or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and the performance obligations of either Borrower under any Eligible Interest
Rate Contracts. The term includes, without limitation, the principal amount of
all Advances, all Letters of Credit, together with interest, charges, expenses,
fees, attorneys' and paralegals' fees and expenses, and any other sums
chargeable to either or both of the Borrowers under this Agreement and the
other Transaction Documents.
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"Other Taxes" has the meaning specified in Section 2.12(b).
"Participant" has the meaning specified in Section 8.08.
"Participation" has the meaning specified in Section 8.08.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Permitted Other Indebtedness" has the meaning specified in
Section 5.02(j)(ix).
"Person" means 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.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of either Borrower or any of its
ERISA Affiliates and covered by Title IV of ERISA.
"Pledge Agreement Amendment" has the meaning specified in
Section 3.01(a)(iv).
"Prior Credit Agreement" means that certain Revolving Credit
Agreement dated as of May 11, 1993, among the Borrowers, Citibank, as agent,
BAI, as administrative agent and certain other Persons identified therein, as
the same has been amended from time to time.
"Rate Determination Table" means each of the Facility A Rate
Determination Table and the Facility B Rate Determination Table.
"Reference Banks" means Citibank, BAI and The First National
Bank of Boston. The Borrowers may, with the consent of the Administrative
Agent and the Issuing and Paying Agent, substitute any Bank as a Reference Bank
for any of the above-named Banks.
"Reorganization Agreement" means that certain Agreement and
Plan of Reorganization dated December 5, 1994, as the same may have been and
may be amended from time to time among OHM, Rust Remedial Services Inc.,
Enclean Environmental Services Group, Inc., Rust Environmental, Inc. and Rust
International Inc.
"Reportable Event" has the meaning assigned to that term in
Title IV of ERISA.
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"Rust Transactions" means the transactions contemplated by the
Reorganization Agreement.
"Secured Period" means any period prior to the time when the
Issuing and Paying Agent and the Banks are required to release their security
interests pursuant to Section 8.15(b)(iii), or after the Issuing and Paying
Agent are entitled to a re-grant of security interests pursuant to the terms of
Section 8.15(b).
"Security Agreement Amendment" has the meaning specified in
Section 3.01(a)(iii).
"Standard & Poor's" means Standard & Poor's Corporation.
"Stated Termination Date" means May 30, 2000.
"Subsidiary" means any Person the financial statements of
which are Consolidated with those of either Borrower.
"Subordinated Indebtedness" means the Debentures and any other
Indebtedness of either Borrower that is subordinated, in a manner satisfactory
in form and substance to the Majority Banks (evidenced by their written
confirmation thereof), as to right and time of payment of principal thereof and
interest thereon to the Notes and all obligations of the Borrowers under this
Agreement, the Notes and the other Transaction Documents. The parties hereto
specifically agree that all obligations of the Borrowers hereunder and under
the Notes and the other Transaction Documents, whether for principal, interest,
fees or otherwise, shall be Senior Indebtedness as defined in the Indenture.
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the Stated Termination Date or the
earlier date of the termination in whole of the Commitments pursuant to Section
2.15 or Section 6.01.
"Termination Event" means (a) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations), (b) the withdrawal of either Borrower or any of its
ERISA Affiliates from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice
of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, (d) the institution of proceedings to
terminate a Plan by the PBGC, or (e) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
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"Total A Commitment" means, at any time, an amount equal to
the maximum liability of WMX at such time under the WMX Guaranty; provided,
however, that at any time that WMX is in default with respect to any
indebtedness of WMX with a principal amount that equals or exceeds $50,000,000,
the amount of the Total A Commitment shall be zero.
"Total B Commitment" means, at any time, an amount equal to
the Total Commitment at such time minus the Total A Commitment at such time.
"Total Commitment" means at any time, the aggregate sum of the
Banks' Commitments at such time.
"Total Unused Commitment" means the aggregate sum of the
Banks' Unused Commitments.
"Transaction Documents" means this Agreement, together with
all other instruments, documents and agreements executed and/or delivered in
connection therewith, including all notes, security agreements, letters of
credit, letter of credit reimbursement agreements, letter of credit
applications, guaranties, pledge agreements, including, without limitation, the
Notes, the Letters of Credit, the Security Agreement and the Pledge Agreement,
in each case, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Underbillings" means, at any time, the amount set forth on
the Borrowers' financial statements as "costs and estimated earnings on
contracts in process in excess of billings," less any such amounts attributable
to (a) Citgo Petroleum Corp. in connection with work done at Citgo's Lake
Charles, Louisiana refinery, (b) Occidental Chemical Corporation for work done
in North Tonawanda, New York, (c) the Baird & McGuire project and (d) any
contracts performed on a "time and materials," "cost plus," or "cost
reimbursable" basis, or on any other basis other than a fixed price or fixed
unit price basis.
"Underbillings Reserve" means, at any time, the excess of (i)
the amount of Underbillings at such time, over (ii) thirty five percent (35%)
of Net Worth at such time; provided, that during any Facility B Level 1 Period
or Facility B Level 2 Period, there will be no Underbillings Reserve. The
Underbillings Reserve shall be calculated at the end of each fiscal quarter,
and at such other times as the Borrowers may elect.
"Unsecured Period" means any period other than a Secured
Period.
"Unused A Commitment" means, as to each Bank at any time, (i)
such Bank's A Commitment at such time less (ii) the sum of (a) such Bank's
outstanding Facility A Advances at such time,
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plus (b) such Bank's participation in the undrawn face amount of Facility A
Letters of Credit at such time, plus (c) such Bank's participation interest in
any unpaid reimbursement obligations owing by either Borrower in respect of any
Facility A Letters of Credit; provided, however, that if the amount described
in the foregoing clause (ii) equals or exceeds the amount described in the
foregoing clause (i), then such Bank's Unused A Commitment shall be zero.
"Unused B Commitment" means, as to each Bank at any time, (i)
such Bank's B Commitment at such time less (ii) the sum of (a) such Bank's
outstanding Facility B Advances at such time, plus (b) such Bank's
participation in the undrawn face amount of Facility B Letters of Credit at
such time, plus (c) such Bank's participation interest in any unpaid
reimbursement obligations owing by either Borrower in respect of any Facility B
Letters of Credit; provided, however, that if the amount described in the
foregoing clause (ii) equals or exceeds the amount described in the foregoing
clause (i), then such Bank's Unused B Commitment shall be zero.
"Unused Commitments" means, as to each Bank at any time, such
Bank's Unused A Commitment at such time plus the Bank's Unused B Commitment at
such time.
"WMX" means WMX Technologies, Inc., a Delaware corporation.
"WMX Group" means WMX, Rust and their respective Affiliates.
"WMX Guaranty" means that certain Guaranty dated as of the
Effective Date, executed by WMX in favor of the Administrative Agent, the
Issuing and Paying Agent and the Banks.
"WMX Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of the date hereof among WMX, the Administrative Agent and
the Issuing and Paying Agent, acknowledged by the Borrowers.
"WMX Reimbursement Agreement" means the reimbursement
agreement to be entered into between WMX and the Borrower providing for the
reimbursement of WMX by the Borrowers upon payment being made by WMX under the
WMX Guaranty.
SECTION 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied, and all financial data
submitted pursuant to this Agreement shall be prepared in accordance with such
principles.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) Each
Bank severally agrees, on the terms and subject to the conditions hereinafter
set forth, to make Advances to the Borrowers from time to time on any Business
Day during the period on and from the Effective Date to but not including the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Bank's Commitment minus such Bank's Contractual Percentage of the
Underbillings Reserve at such time. Each Borrowing shall be in an aggregate
amount of not less than $500,000 and in increments of $100,000 in excess of
such amount and shall consist of Advances of the same Type, having the same
Interest Period and made on the same day by the Banks ratably according to
their respective Contractual Percentages at the date of Borrowing. Within the
limits of the Total Commitment (minus any applicable Underbillings Reserve),
the Borrowers may borrow, prepay pursuant to Section 2.05 or repay pursuant to
Section 2.06 and reborrow under this Section 2.01.
(b) Each Bank severally agrees on the terms and subject
to the conditions hereinafter set forth, to acquire participations in the
Letters of Credit issued by an Issuing Bank as provided in Sections 2.14(a) and
2.14(d), in an aggregate undrawn face amount not to exceed at any time
outstanding such Bank's Commitment minus such Bank's Contractual Percentage of
the Underbillings Reserve at such time. Within the limits of the Total
Commitment (minus any applicable Underbillings Reserve), the Borrowers may
request the issuance of Letters of Credit on a revolving basis.
(c) Notwithstanding the foregoing, the sum of (i) a
Bank's outstanding Advances pursuant to Section 2.01(a) plus (ii) such Bank's
outstanding participation in Letters of Credit pursuant to Section 2.01(b) plus
(iii) the aggregate amount of such Bank's ratable share of any unpaid
reimbursement obligations in respect of any Letters of Credit, shall not exceed
at any time such Bank's Commitment minus such Bank's Contractual Percentage of
any applicable Underbillings Reserve. Furthermore, in no event shall the sum
of (1) the aggregate amount of the outstanding Advances, plus (2) the aggregate
undrawn face amount of all of the Letters of Credit, plus (3) the aggregate
amount of any unpaid reimbursement obligations in respect of any Letters of
Credit exceed the Total Commitment at any time minus the Underbillings Reserve
at such time.
SECTION 2.02. The Notes. The Advances made by each Bank
shall be evidenced by the Note received by the Administrative Agent for the
account of such Bank. The Borrowers shall execute and deliver additional
promissory notes to separately evidence Eurodollar Rate Advances made or to be
made
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pursuant hereto upon the request of the Administrative Agent or any Bank.
SECTION 2.03. Making the Advances. (a) The Borrower
requesting a Borrowing shall give the Issuing and Paying Agent a Notice of
Borrowing not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Borrowing, in the case of Eurodollar Rate
Advances, or on the day of the proposed Borrowing, in the case of Base Rate
Advances. Each Notice of Borrowing shall specify therein the requested (i)
date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii)
aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Advances, Interest Period for such Borrowing. In the
case of a proposed Borrowing comprised of Eurodollar Rate Advances, the Issuing
and Paying Agent shall promptly notify each Bank of the applicable interest
rate under Section 2.07. The Issuing and Paying Agent shall, on the date of
receipt of the Notice of Borrowing, give telephone notice to each Bank of each
proposed Borrowing. Each Bank shall, before 1:00 P.M. (New York City time) on
the date of each Borrowing, make available for the account of its Applicable
Lending Office to the Issuing and Paying Agent at 231 South LaSalle Street,
Chicago, Illinois in same day funds, such Bank's Contractual Percentage of such
Borrowing. After the Issuing and Paying Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Issuing
and Paying Agent will make such funds available to the Borrower requesting the
Borrowing at the Issuing and Paying Agent's aforesaid address or at such other
location or in such other manner as the Issuing and Paying Agent and such
Borrower may from time to time agree. The Issuing and Paying Agent shall keep
all Notices of Borrowing on file and available for inspection by the
Administrative Agent and the Banks.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) if any Bank shall, at least one Business Day before
the date of any requested Borrowing, notify the Issuing and Paying
Agent that the introduction of or any change in or in the judicial,
administrative or other governmental interpretation of any law or
regulation makes it unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Bank or
its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate
Advances hereunder, (A) the right of the Borrowers to select
Eurodollar Rate Advances for such Borrowing or any subsequent
Borrowing shall be suspended until such Bank shall notify the Issuing
and Paying Agent that the circumstances causing such suspension no
longer exist or such Bank shall cease to be party hereto, and each
Advance comprising such Borrowing shall be a Base Rate
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Advance, and (B) the Borrowers shall, within five Business Days of its
receipt of notice thereof from the Issuing and Paying Agent, at their
option, either (1) prepay in full all Eurodollar Rate Advances of all
Banks then outstanding, together with interest accrued thereon, or (2)
convert all Eurodollar Rate Advances of all Banks then outstanding
into Base Rate Advances (subject, in each case, to the payment of any
amounts required pursuant to subsection (c) below);
(ii) if none of the Reference Banks furnish timely
information to the Issuing and Paying Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances for any Borrowing, the
right of the Borrowers to select Eurodollar Rate Advances for such
Borrowing or any subsequent Borrowing shall be suspended until the
Issuing and Paying Agent shall notify the Borrowers and the Banks that
the circumstances causing such suspension no longer exist, and each
Advance comprising such Borrowing shall be a Base Rate Advance; and
(iii) if the Majority Banks shall at least one Business Day
before the date of any requested Borrowing, notify the Issuing and
Paying Agent that the Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect the cost to such
Majority Banks of making or funding their respective Eurodollar Rate
Advances for such Borrowing, the right of the Borrowers to select
Eurodollar Rate Advances for such Borrowing or any subsequent
Borrowing shall be suspended until the Issuing and Paying Agent shall
notify the Borrowers and the Banks that the circumstances causing such
suspension no longer exist, and each Advance comprising such Borrowing
shall be a Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrowers. Each Borrower shall jointly and severally indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result
of any payment of principal of any Eurodollar Rate Advance to or for the
account of such Bank other than on the last day of the Interest Period
therefor, or any failure to fulfill on or before the date specified in any
Notice of Borrowing for a Borrowing which is to be comprised of Eurodollar Rate
Advances, the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss, if any, of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain such Advance
or the Advance to be made by such Bank as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
(d) Unless the Issuing and Paying Agent shall have
received notice from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Issuing and Paying
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Agent such Bank's portion of such Borrowing (which notice shall not of itself
relieve such Bank of any of its obligations hereunder), the Issuing and Paying
Agent may assume that such Bank has made such portion available to the Issuing
and Paying Agent on the date of such Borrowing in accordance with subsection
(a) of this Section 2.03 and the Issuing and Paying Agent may, in reliance upon
such assumption, make available to the Borrower requesting the Borrowing on
such date a corresponding amount. If and to the extent such Bank shall not
have so made such portion available to the Issuing and Paying Agent, such Bank
and the Borrowers severally agree to repay to the Issuing and Paying Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day on and from the date such amount is made available to the
requesting Borrower until the date such amount is repaid to the Issuing and
Paying Agent, at (i) with respect to the Borrowers, the interest rate
applicable at the time to Advances comprising such Borrowing or (ii) with
respect to such Bank, the Federal Funds Rate. If such Bank (rather than the
Borrowers) shall repay to the Issuing and Paying Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Advance as part of
such Borrowing for purposes of this Agreement. If the Borrowers (rather than
such Bank) shall repay to the Issuing and Paying Agent such corresponding
amount, such Borrowing shall not be deemed to include such repaid amount.
(e) The failure of any Bank to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Bank shall be responsible for the failure of any other Bank
to make the Advance to be made by such other Bank on the date of any Borrowing.
SECTION 2.04. Fees. (a) Non-Use Fee. The Borrowers jointly
and severally agree to pay to the Issuing and Paying Agent, for the ratable
account of each Bank based on their respective Contractual Percentages, a fee
(the "Non-Use Fee") on the average daily Total Unused Commitment from the
Effective Date to and including the Termination Date, as follows: (1) on the
average daily Total Unused A Commitment, at the rate described in the Facility
A Rate Determination Table for the applicable Level set forth on such Table,
such rate to change when and as the Credit Rating of WMX changes, and (ii) on
the average daily Total Unused B Commitment, at the rate described in the
Facility B Rate Determination Table for the applicable Level set forth on such
Table for the then applicable Measurement Period. The Non-Use Fee shall be
payable in arrears on the first day of each January, April, July and October,
commencing on the first such day occurring on or after the Effective Date, and
on the Termination Date.
(b) Issuance Fee. The Borrowers jointly and severally agree
to pay to the Issuing and Paying Agent for the account of each Bank a Letter of
Credit issuance fee (the "Issuance Fee") on
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such Bank's participation in the average daily outstanding undrawn face amount
of all Letters of Credit issued or outstanding hereunder, payable in arrears
for the immediately preceding quarter on the first day of each January, April,
July and October hereafter, and on the Termination Date, at the respective
rates (the "Issuance Fee Percentages") described (i) for Facility A Letter of
Credit, on the Facility A Rate Determination Table for the applicable Level set
forth on such Table, such rate to change when and as the Credit Rating of WMX
changes, and (ii) for Facility B Letters of Credit, on the Facility B Rate
Determination Table for the applicable Level set forth on such Table for the
then applicable Measurement Period. Effective as of each Interest Rate and Fee
Adjustment Date, the Facility B Issuance Fee Percentage shall be increased or
decreased, if and as applicable, to the rate described on the Facility B Rate
Determination Table for the applicable Level set forth on such Table for the
then applicable Measurement Period; provided, however, that no decrease in the
Facility B Issuance Fee Percentage shall in any event apply to any quarter
ending on or prior to the actual date of delivery to the Administrative Agent
and the Issuing and Paying Agent of the applicable certificate containing the
calculations justifying such decrease. Notwithstanding the foregoing, (i) no
decreases in the respective Issuance Fee Percentages shall in any event become
effective on any Interest Rate and Fee Adjustment Date or other date on which a
Default or an Event of Default shall have occurred and be continuing, and (ii)
upon the occurrence of a Default or an Event of Default, until the next
subsequent date, in the case of Facility A Letters of Credit, or the next
subsequent Interest Rate and Fee Adjustment Date, in the case of Facility B
Letters of Credit, on which there shall not exist any Default or Event of
Default, (x) if, at the time of such Default or Event of Default, the
respective Issuance Fee Percentages are determined by reference to Level 5 on
the Applicable Rate Determination Table, the Issuance Fee Percentages shall
continue to be determined by reference to such Level, and (y) if, at the time
of such Default or Event of Default, the Issuance Fee Percentages are
determined by reference to any Level other than Level 5, the Issuance Fee
Percentages shall be automatically increased as of the date of such Default or
Event of Default, if and to the extent necessary, to the respective rates
described at Level 4 on the Applicable Rate Determination Table. From and
including the Effective Date until the first date thereafter, in the case of
Facility A Letters of Credit, or the first Interest Rate and Fee Adjustment
Date thereafter, in the case of the Facility B Letters of Credit, on which a
change is called for by application of the Applicable Rate Determination Table,
the Facility A Issuance Fee Percentage shall be determined in accordance with
Level 2 on the Facility A Rate Determination Table and the Facility B Issuance
Fee Percentage shall be determined in accordance with Level 4 on the Facility B
Rate Determination Table.
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(c) Facing Fee. The Borrowers jointly and severally
agree to pay to each Issuing Bank, solely for its own account, a fee (the
"Facing Fee") on the average daily undrawn face amount of each Letter of Credit
issued by such Issuing Bank which is outstanding at any time during the period
from the Effective Date to and including the Termination Date, at a rate of
0.125% per annum, payable in arrears on the first day of January, April, July
and October, commencing on the first such day occurring on or after the
Effective Date, and on the Termination Date.
(d) Commitment Fee. If the WMX Guaranty is released pursuant
to the provisions of Section 8.15(c), then on such date (the "Guaranty Release
Date"), the Borrowers jointly and severally agree to pay to the Issuing and
Paying Agent, for the ratable account of each Bank based on the Banks'
Contractual Percentages, a fee equal to the amount, if any, by which (1) the
amount of the commitment fee which would have been payable to such Bank under
the Commitment Fee Agreement had its Commitment on the Effective Date been in
the amount of its Commitment on the Guaranty Release Date (after giving effect
to any reduction of the Commitments on such date pursuant to Section 2.15) and
had such Commitment been treated as entirely a B Commitment, exceeds (2) the
amount of the Commitment Fee which was paid to such Bank on the Effective date
under the Commitment Fee Agreement.
(e) Fees Non-Refundable. All fees paid by the Borrowers
pursuant to this Section 2.04 shall be deemed fully earned by performance when
paid and shall be non-refundable.
SECTION 2.05. Prepayments. The Borrowers may, upon notice to
the Issuing and Paying Agent not later than 11:00 A.M. (New York City time) on
the day of such prepayment, prepay, without penalty, the outstanding amount of
Base Rate Advances comprising the same Borrowing in whole at any time or from
time to time ratably in part; provided, however, that each partial prepayment
shall be in an aggregate principal amount of not less than $100,000 and in
increments of $100,000 in excess of such amount. Notwithstanding the
foregoing, any mandatory prepayments of Advances required to be made by the
Borrowers hereunder may be made in any amount and such prepayments shall be
applied first to the outstanding Base Rate Advances and second to any
outstanding Eurodollar Rate Advances in such order as the Issuing and Paying
Agent, in its sole discretion, may determine. Any such prepayment of any
Eurodollar Rate Advance shall be accompanied by a payment of all accrued and
unpaid interest on the amount so prepaid and any losses, costs or expenses of
the type described in Section 2.03(c) as a result of such prepayment.
SECTION 2.06. Joint and Several Liability; Repayment of
Advances and Letters of Credit. (a) Each Borrower shall be jointly and
severally obligated to repay the unpaid principal amount of each Advance made
by each Bank in accordance with the Notes to the order of such Bank, and to
reimburse each Bank with
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respect to its ratable portion of each drawing on a Letter of Credit, in each
case, regardless of whether such Borrower requested the Borrowing or the Letter
of Credit or received any funds in respect thereof.
(b) Notwithstanding anything contained in this Agreement or
any of the other Transaction Documents to the contrary, upon the occurrence of
the Termination Date for whatever reason whatsoever, all Obligations
(including, without limitation, all unpaid principal of, accrued interest on,
and prepayment penalties, if any, with respect to the Advances and the
reimbursement obligations in respect of the Letters of Credit, all accrued and
unpaid fees and any and all other amounts) shall become immediately due and
payable. Additionally on such date, the Borrower shall be required to deliver
to each Issuing Bank for cancellation any Letters of Credit issued by such
Issuing Bank outstanding at such time or provide to the Issuing and Paying
Agent, for the benefit of the Banks, cash collateral in the aggregate amount of
the undrawn face amount of any such outstanding Letters of Credit.
Notwithstanding the foregoing, until all Obligations are paid and performed in
full and all outstanding Letters of Credit are canceled, the Administrative
Agent, the Issuing and Paying Agent and the Banks shall retain all of their
rights hereunder and under the other Transaction Documents (including, without
limitation, the security interest in, and all rights and remedies in respect
of, all then existing and after-arising or acquired Collateral for the
Obligations).
SECTION 2.07. Interest. The Borrowers shall pay interest on
the unpaid principal amount of each Advance owing to each Bank from the date of
such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(a) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during
the Interest Period for such Advance to the sum of the Eurodollar Rate
for such Interest Period plus a per annum amount (the " Eurodollar
Margin") equal to the rate described on the Applicable Rate
Determination Table for the applicable Level set forth on such Table,
payable on the last day of such Interest Period (and if such Interest
Period is 6 months, then also on the last day of the third month of
such Interest Period) and as otherwise set forth herein. The Facility
A Eurodollar Margin for any Eurodollar Rate Advances shall be
determined by reference to the Facility A Rate Determination Table on
the first day of the Interest Period for such Advances. The Facility
B Eurodollar Margin shall be adjusted, if applicable, on each Interest
Rate and Fee Adjustment Date and the Facility B Eurodollar Margin for
any Eurodollar Rate Advances for any Interest Period shall be
determined by reference to the Facility B Rate Determination Table as
of the Interest Rate
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and Fee Adjustment Date occurring on or immediately prior to the first
day of such Interest Period; provided, however, that (i) no decrease
in the Facility B Eurodollar Margin shall in any event apply to any
Interest Period ending on or prior to the actual date of delivery to
the Administrative Agent and the Issuing and Paying Agent of the
applicable certificate containing the calculations justifying such
decrease or to any part of an Interest Period with respect to which
interest became due and payable pursuant to the terms hereof prior to
such date of delivery; and (ii) no decrease in the Facility B
Eurodollar Margin shall in any event become effective on any Interest
Rate and Fee Adjustment Date on which a Default or an Event of Default
shall have occurred and be continuing. The Applicable Eurodollar
Margin in effect for Advances on the first day of an Interest Period
pursuant to the preceding provisions shall be the effective Eurodollar
Margin for such Advances throughout such Interest Period; provided,
however, that upon the occurrence of a Default or an Event of Default,
until the next subsequent date, in the case of Facility A Advances, or
the next subsequent Interest Rate and Fee Adjustment Date, in the case
of Facility B Advances, on which there shall not exist any Default or
Event of Default, (x) if, at the time of such Default or Event of
Default, as the case may be, either Applicable Eurodollar Margin is
determined by reference to Level 5 on the Applicable Rate
Determination Table, such Eurodollar Margin shall continue to be
determined by reference to such Level, and (y) if, at the time of such
Default or Event of Default, as the case may, either Applicable
Eurodollar Margin is determined by reference to any Level other than
Level 5, such Eurodollar Margin shall be automatically increased as
of the date of such Default or Event of Default, if and to the extent
necessary, to the rate described at Level 4 on the Applicable Rate
Determination Table. From and including the Closing Date until the
first date thereafter, in the case of Facility A Advances, or the
first Interest Rate and Fee Adjustment Date thereafter, in the case of
Facility B Advances, on which a change is called for by application of
the Applicable Rate Determination Table, the Facility A Eurodollar
Margin shall be determined in accordance with Level 2 on the Facility
A Rate Determination Table and the Facility B Eurodollar Margin shall
be determined in accordance with Level 4 on the Facility B Rate
Determination Table.
(b) Base Rate Advances. If such Advance is a Base Rate
Advance, a rate per annum equal at all times to the Alternate Base
Rate in effect from time to time plus a per annum amount (the "Base
Rate Margin") equal to the rate described on the Applicable Rate
Determination Table for the applicable Level set forth on such Table,
payable in arrears on the first Business Day of each calendar quarter
following
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a quarter during which such Advance was outstanding and as otherwise
set forth herein. The Facility A Base Rate Margin for any Base Rate
Advances shall change when and as the Credit Rating of WMX changes.
The Facility B Base Rate Margin shall be adjusted, if applicable, on
each Interest Date and Fee Adjustment Date; provided, however, that no
decrease in the Facility B Base Rate Margin shall in any event apply
to any quarter ending on or prior to the actual date of delivery to
the Administrative Agent and the Issuing and Paying Agent of the
applicable certificate containing the calculations justifying such
decrease. Notwithstanding the foregoing, (i) no decrease in either
Applicable Base Rate Margin shall in any event become effective on any
date on which a Default or an Event of Default shall have occurred and
be continuing, and (ii) upon the occurrence of a Default or an Event
of Default, until the next subsequent date, in the case of Facility A
Advances, or the next subsequent an Interest Rate and Fee Adjustment
Date, in the case of Facility B Advances, on which there shall not
exist any Default or Event of Default, (x) if, at the time of such
Default or Event of Default, as the case may be, either Applicable
Base Rate Margin is determined by reference to Level 5 on the
Applicable Rate Determination Table, such Base Rate Margin shall
continue to be determined by reference such Level, and (y) if, at the
time of such Default or Event of Default, as the case may, either
Applicable Base Rate Margin is determined by reference to any Level
other than Level 5, such Base Rate Margin shall be automatically
increased as of the date of such Default or Event of Default, if and
to the extent necessary, to the rate described at Level 4 on the
Applicable Rate Determination Table. From and including the Closing
Date until the first date thereafter, in the case of Facility A
Advances, or the first Interest Rate and Fee Adjustment Date
thereafter, in the case of Facility B Advances, on which a change is
called for by application of the Applicable Rate Determination Table,
the Facility A Base Rate Margin shall be determined in accordance with
Level 2 on the Facility A Rate Determination Table and the Facility B
Base Rate Margin shall be determined in accordance with Level 4 on the
Facility B Rate Determination Table.
(c) Default Rate. Without limiting anything contained in
Sections 2.07(a) or 2.07(b) to the contrary, following the occurrence
and during the continuance of an Event of Default, the outstanding
principal balance of the Advances shall bear interest, payable on
demand, at a rate per annum equal at all times to 2% per annum above
the higher of (a) the Alternate Base Rate in effect from time to time
or (b) the interest rate applicable to each such Advance at the date
of such default (after giving effect, upon the occurrence of such
default, to any increase in the Applicable Eurodollar Margin or
Applicable Base Rate Margin, as the
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case may be, if and to the extent required by the provisos to the
preceding Sections 2.07(a) and 2.07(b)).
(d) Limitation on Interest Rates. In no event shall any
interest rate provided for hereunder or under the Notes exceed the
maximum rate permissible for corporate borrowers under applicable law
(the "Maximum Rate"). If, for any period, any interest rate, absent
such limitation, would have exceeded the Maximum Rate, then the
interest rate for that period shall be the Maximum Rate, and, if in
future periods, that interest rate would otherwise be less than the
Maximum Rate, then, to the extent permitted by applicable law, that
interest rate shall remain at the Maximum Rate until such time as the
amount of interest paid hereunder equals the amount of interest which
would have been paid if the same had not been limited by the Maximum
Rate. In the event that, upon payment in full of the Obligations
under this Agreement, the total amount of interest paid or accrued
under the terms of this Agreement is less than the total amount of
interest which would, but for this Section 2.07(d), have been paid or
accrued if the interest rates otherwise set forth in this Agreement
and the Notes had at all times been in effect, then the Borrowers
shall, to the extent permitted by applicable law, pay the Banks an
amount equal to the difference between (a) the lesser of (i) the
amount of interest which would have been charged if the Maximum Rate
had, at all times, been in effect or (ii) the amount of interest which
would have accrued had the interest rates otherwise set forth in this
Agreement, at all times, been in effect and (b) the amount of interest
actually paid or accrued under this Agreement. In the event that a
court determines that any Bank has received interest and other charges
hereunder in excess of the Maximum Rate, such excess shall be deemed
received on account of, and shall automatically be applied to reduce,
the Obligations other than interest, in the inverse order of maturity,
and if there are no Obligations outstanding, such Bank shall refund to
the Borrowers such excess. In determining whether any interest rate
provided for hereunder or under the Notes exceeds the Maximum Rate,
all sums paid or agreed to be paid to the Administrative Agent, the
Issuing and Paying Agent, any Issuing Bank, or any Bank for the use,
forbearance or detention of the Commitments or the Obligations shall,
to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such Commitments or
Obligations (including the period of any renewal or extension thereof)
so that the interest on the Obligations shall not exceed the Maximum
Rate.
SECTION 2.08 Additional Interest on Eurodollar Rate
Advances. The Borrowers shall pay to the Issuing and Paying Agent for the
account of each Bank additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such
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Bank, from the date of such Advance until such principal amount is paid in
full, at a rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage, if any, of such
Bank for such Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be determined by such
Bank and notified to the Borrowers through the Issuing and Paying Agent.
SECTION 2.09. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Issuing and Paying Agent timely
information for the purpose of determining each Eurodollar Rate, as applicable.
If any one or more of the Reference Banks shall not furnish such timely
information to the Issuing and Paying Agent for the purpose of determining any
such interest rate, the Issuing and Paying Agent shall (subject to the
requirements of Section 2.03 (b)(ii)) determine such interest rate on the basis
of timely information furnished by the remaining Reference Bank.
(b) The Issuing and Paying Agent shall give prompt notice
to the Borrowers and the Banks of the applicable interest rate determined by the
Issuing and Paying Agent for purposes of Section 2.07(a) or (b), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.07(a).
(c) The Borrower may, on any Business Day, upon notice
given to the Issuing and Paying Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed conversion
and subject to the provisions of Section 2.03(b), convert all Advances of one
Type comprising the same Borrowing into Advances of another Type; provided;
however, that, other than as required pursuant to Section 2.03(b)(i), any
conversion of any Eurodollar Rate Advances into Base Rate Advances shall be
made on, and only on, the last day of an Interest Period for such Eurodollar
Rate Advances. Each such notice of a conversion shall, within the restrictions
specified above, specify (i) the date of such conversion, (ii) the Advances to
be converted, and (iii) if such conversion is into Eurodollar Rate Advances,
the duration of the Interest Period for each such Advance.
(d) If the Borrowers shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Issuing and Paying Agent will forthwith so notify the Borrowers and the
Banks and such Advances will automatically, on the last day of the then
existing Interest Period therefor, convert into Base Rate Advances.
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(e) On the date on which the aggregate unpaid principal
amount of Advances comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $500,000, such Advances shall, if they
are Eurodollar Rate Advances, automatically convert into Base Rate Advances,
and on and after such date the right of the Borrower to convert such Advances
into Advances of a Type other than Base Rate Advances shall terminate; provided
however, that if and so long as each such Advance shall be of the same Type and
have the same Interest Period as Advances comprising another Borrowing or other
Borrowings, and the aggregate unpaid principal amount of all such Advances
shall equal or exceed $500,000, the Borrower shall have the right to continue
all such Advances as, or to convert all such Advances into, Eurodollar Rate
Advances having such Interest Period.
SECTION 2.10. Increased Costs. (a) If, due to either (i)
the introduction of, or any change (other than any change by way of imposition
or increase of reserve requirements included, in the case of Eurodollar Rate
Advances, in the Eurodollar Rate Reserve Percentage) in, or in the judicial,
administrative or other governmental interpretation of, any law or regulation
or (ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost (other than taxes described in clauses (i)
through (iv) of Section 2.12(a)) to any Bank of agreeing to make or making,
funding or maintaining Eurodollar Rate Advances or Letter of Credit
participations, then the Borrowers shall from time to time, upon demand by such
Bank (with a copy of such demand to the Issuing and Paying Agent), pay to the
Issuing and Paying Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for such actual increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrowers
and the Issuing and Paying Agent by such Bank, shall be prima facie evidence of
such amount for all purposes, absent manifest error.
(b) If either (i) the introduction of, or any change in, or
in the judicial, administrative or other governmental interpretation of, any
law or regulation or (ii) compliance with any guideline or request from any
central bank or other govern- mental authority (whether or not having the force
of law) affects or would affect the amount of capital required to be maintained
by any Bank or any corporation controlling any Bank and such Bank determines
that the amount of such capital is increased by or based upon the existence of
such Bank's Commitment hereunder and other similar commitments, then, upon
demand by such Bank (with a copy of such demand to the Issuing and Paying
Agent), the Borrowers shall pay to the Issuing and Paying Agent for the account
of such Bank from time to time as specified by such Bank additional amounts
sufficient to compensate such Bank in the light of such circumstances, to the
extent that such Bank reasonably determines such increase in capital to be
allocable to the
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existence of such Bank's Commitment hereunder. A certificate as to such
amounts, submitted to the Borrowers and the Issuing and Paying Agent by such
Bank, shall be prima facie evidence of such amounts for all purposes, absent
manifest error.
SECTION 2.11. Payments and Computations. (a) The Borrowers
shall make each payment hereunder not later than 11:00 A.M. (New York City
time) on the day when due in U.S. dollars to the Issuing and Paying Agent at
its address referred to in Section 2.03(a) in same day funds. The Issuing and
Paying Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest, facility fees or other amounts
to the Banks for the account of their respective Applicable Lending Offices, in
each case to be applied in accordance with the terms of this Agreement. The
payment of an amount by either Borrower to the Issuing and Paying Agent for the
account of any Bank shall satisfy the obligation of the Borrowers to pay such
amount to such Bank, and the Borrowers shall not be responsible for the Issuing
and Paying Agent's failure to cause a timely distribution of such amounts to
such Bank.
(b) Each Borrower hereby authorizes each Bank, if and to the
extent payment owed to such Bank is not made to the Issuing and Paying Agent
when due hereunder, to charge from time to time against any or all of such
Borrower's accounts with such Bank any amount so due.
(c) All computations of interest and per annum fees hereunder
shall be made by the Issuing and Paying Agent, including computations of
additional interest pursuant to Section 2.08, shall be made by a Bank, on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or facility fees are payable. Each determination by
the Issuing and Paying Agent (or, in the case of Section 2.08, by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or such fee, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of any Eurodollar Rate Advance to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Issuing and Paying Agent shall have received
notice from the Borrowers prior to the date on which any payment is due to the
Bank hereunder that the Borrowers will not make such payment in full, the
Issuing and Paying Agent may assume that the Borrowers have made such payment
in full to the
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Issuing and Paying Agent on such date and the Issuing and Paying Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrowers shall not have so made such payment in full to the Issuing
and Paying Agent, each Bank shall repay to the Issuing and Paying Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Issuing and Paying Agent, at
the Federal Funds Rate.
(f) All payments of principal and interest in respect of
outstanding Advances, all payments of fees and all other payments in respect of
any other Obligations, shall be allocated among such of the Banks and Issuing
Banks as are entitled thereto, in proportion to their respective ratable shares
of the Advances or otherwise as provided herein, and shall be applied by the
Administrative Agent in respect of the Obligations in the following order:
(i) FIRST, to the repayment of and interest on any
distribution made by the Issuing and Paying Agent to any Bank pursuant
to Section 2.11(e) for which the Issuing and Paying Agent has not then
been repaid by such Bank;
(ii) SECOND, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Administrative
Agent or the Issuing and Paying Agent;
(iii) THIRD, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Banks and each
Issuing Bank;
(iv) FOURTH, to pay interest due in respect of Advances and
outstanding reimbursement obligations in respect of Letters of Credit;
(v) FIFTH, to pay outstanding reimbursement obligations in
respect of Letters of Credit;
(vi) SIXTH, to the ratable payment or prepayment of principal
outstanding on Advances in such order as the Administrative Agent may
determine in its sole discretion;
(vii) SEVENTH, to pay the Borrowers' performance obligations
under Eligible Interest Rate Contracts; and
(viii) EIGHTH, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 2.11(f) and the related
provisions of this Agreement are set forth solely to
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determine the rights and priorities of the Administrative Agent, the Issuing
and Paying Agent, the Banks and each Issuing Bank. The order of priority set
forth in clauses (iii) through (viii) of this Section 2.11(f) may at any time
and from time to time be changed by the Majority Banks without necessity of
notice to or consent of or approval by either of the Borrowers or any other
Person. The order of priority set forth in clause (i) of this Section 2.11(f)
may be changed only with the prior written consent of the Issuing and Paying
Agent. The order of priority set forth in clause (ii) of this Section 2.11(f)
may be changed only with the prior written consent of the Administrative Agent
or the Issuing and Paying Agent, as applicable.
SECTION 2.12. Taxes. (a) Any and all payments by the
Borrowers hereunder shall be made, in accordance with Section 2.11, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding:
(i) in the case of each Bank, the Administrative Agent or
the Issuing and Paying Agent, taxes imposed on its income, franchise
taxes and similar taxes imposed on it, by the jurisdiction under the
laws of which such Bank, the Administrative Agent or the Issuing and
Paying Agent (as the case may be) is organized or any political
subdivision thereof,
(ii) in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof,
(iii) in the case of each Bank, withholding taxes payable
with respect to payments to such Bank at its original Applicable
Lending Office specified in Schedule 2.12 hereto under laws (including,
without limitation, any treaty, ruling, determination or regulation) in
effect on May 31, 1995, but not any increase in withholding tax
resulting from any subsequent change in such laws, and
(iv) in the case of any assignment by a Bank of an interest
herein to an assignee pursuant to Section 8.08, or any change of an
Applicable Lending Office in one jurisdiction to an Applicable Lending
Office in another jurisdiction, any excess of the withholding tax
applicable to such assignee, or Applicable Lending Office, over the
withholding tax (other than any withholding tax which was excluded from
the definition of Taxes under clause (iii) or this clause (iv) of this
Section 2.12(a)) which was applicable to the former Bank, or former
Applicable Lending Office, as the case may be, in each case as
determined under laws (including without limitation, any treaty,
ruling, determination or
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regulation) in effect on the date of such assignment or change, but
not including any increase in withholding tax resulting from any
subsequent change in such laws;
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrowers shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Bank, the Administrative Agent or the Issuing
and Paying Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Bank, Administrative
Agent or Issuing and Paying Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrowers shall make such deductions and (iii) the Borrowers shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) The Borrowers will jointly and severally indemnify
each Bank, the Administrative Agent and the Issuing and Paying Agent for the
full amount of all Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.12) paid by such Bank, the Administrative Agent or the Issuing and
Paying Agent, as the case may be, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted. The
Borrowers shall make any such payment to such Bank, the Administrative Agent or
the Issuing and Paying Agent, as the case may be, within 30 days from the date
such Bank, the Administrative Agent or the Issuing and Paying Agent, as the
case may be, makes written demand therefor. If any Bank receives a refund in
respect of any Taxes or Other Taxes for which such Bank has received payment
from the Borrowers hereunder, such Bank shall, within 30 days of such receipt,
deliver a notice thereof to the Borrowers. The Borrowers may, within 30 days
of receipt of such notice, deliver to such Bank a written request for the
amount of such refund in respect of Taxes or Other Taxes, together with a
reaffirmation of this Section 2.12 executed by the Borrowers to repay such
refund to such Bank (plus any penalties, interest or other charges) in the
event that such Bank is required to repay such refund. After receipt of such
request, such Bank shall deposit with the Administrative Agent for delivery to
the Borrowers the amount of such refund.
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(d) Within 30 days after the date of any payment of Taxes
or Other Taxes withheld by the Borrowers in respect of any payment to any Bank,
the Borrower will furnish to the Administrative Agent and the Issuing and
Paying Agent, at their respective addresses referred to in Section 8.03, the
original or a certified copy of a receipt evidencing payment thereof.
(e) Prior to the date of the initial Borrowing in the
case of each Bank, and from time to time thereafter if requested by the
Borrowers, the Administrative Agent or the Issuing and Paying Agent (and, in
any event, annually or as often as may otherwise be required by law or
regulation), each Bank organized under the laws of a jurisdiction outside the
United States shall provide the Administrative Agent, the Issuing and Paying
Agent and the Borrowers with the forms prescribed by the IRS certifying as to
such Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank
hereunder or other documents satisfactory to the Borrowers, the Issuing and
Paying Agent and the Administrative Agent indicating that all payments to be
made to such Bank hereunder are subject to such tax at a rate reduced by an
applicable tax treaty. Unless the Borrowers, the Issuing and Paying Agent and
the Administrative Agent have received forms or other documents satisfactory to
them indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrowers or the Issuing and Paying Agent shall withhold taxes
from such payments at the applicable statutory rate in the case of payments to
or for any Bank organized under the laws of a jurisdiction outside the United
States.
(f) Without prejudice to the survival of any other
agreement hereunder, the agreements and obligations contained in this Section
2.12 shall survive the payment in full of principal and interest hereunder and
the termination of this Agreement.
SECTION 2.13. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Obligations owing to it
(other than pursuant to Section 2.08, 2.10 or 2.12) in excess of its ratable
share (in accordance with the outstanding Advances and Letter of Credit
reimbursement obligations of the respective Banks) of payments obtained by all
the Banks on account of Advances or reimbursement obligations then due and
payable or other amounts then due and payable hereunder, such Bank shall
forthwith purchase from the other Banks such participation in the Advances or
other Obligations owing to them hereunder as shall be necessary to cause such
purchasing Bank to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the
purchase price to the
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extent of such recovery together with an amount equal to such Bank's ratable
share (according to the proportion of (i) the amount of such Bank's required
repayment to (ii) the total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the purchasing Bank in respect
of the total amount so recovered. Each Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section 2.13 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.14. Letters of Credit. (a) Subject to the
satisfaction of the conditions provided by Article III hereof, each Issuing
Bank agrees to issue its irrevocable clean, standby and documentary Letters of
Credit (collectively, the "Letters of Credit") for the account of the Borrowers
or either of them as account parties from time to time, with prior notice to
the Issuing and Paying Agent, on any Business Day during the period on and from
the Effective Date to but not including the Termination Date in an aggregate
undrawn face amount not to exceed at any time the amounts set forth in Sections
2.01(b) and 2.01(c) (and no Issuing Bank shall issue a Letter of Credit unless
it shall have received confirmation from the Issuing and Paying Agent that the
aggregate undrawn face amount of all Letters of Credit, after giving effect to
such issuance, would not exceed such amounts). Each Letter of Credit shall be
issued by the Issuing Bank with respect to such Letter of Credit on behalf of
the Banks ratably according to their respective Contractual Percentages, shall
be in such Issuing Bank's standard form and issued pursuant to a Borrower's
letter of credit application in such Issuing Bank's standard form (or, in
either case, such other form as the Administrative Agent and the Issuing and
Paying Agent may approve). The expiration date of any Letter of Credit shall
not extend beyond the Stated Termination Date.
(b) Immediately upon any drawing under a Letter of Credit,
the Borrowers shall jointly and severally reimburse the Issuing Bank with
respect to such Letter of Credit and the Banks participating in such Letter of
Credit for the amount of such drawing in accordance with this Agreement and the
letter of credit application relating thereto. If at the date of such drawing
the Borrowers would be able to request a Borrowing hereunder in an amount equal
to the amount of such drawing, then the Borrowers shall be deemed, without
further act, to have requested such a Borrowing in such amount, to be made by
the Banks in accordance with their Contractual Percentages (after giving effect
to the payment of such reimbursement obligation) on the date of such drawing
and to be applied by the Issuing and Paying Agent to such reimbursement
obligation. If any such reimbursement obligation is not paid when due, such
reimbursement obligation shall bear interest, from the date when due until paid
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in full, payable on demand, at a rate per annum equal at all times to 2% per
annum above the Alternate Base Rate in effect from time to time.
(c) Each Letter of Credit shall be issued by an Issuing Bank,
and the Banks shall participate therein according to their respective
Contractual Percentages.
(d) The parties hereto acknowledge that, prior to the
Effective Date, BAI has issued Letters of Credit under the Prior Credit
Agreement for the account of one or more of the Borrowers, as more fully
described in Schedule 2.14(d) hereto (collectively, the "Existing Letters of
Credit"). Each such Existing Letter of Credit shall, for all purposes of this
Agreement, be treated as, and be deemed to be, a Letter of Credit issued
hereunder and shall be subject to the terms and restrictions contained herein.
On the Effective Date, each of the Banks shall be required to, and shall,
purchase a ratable participation interest in any such Existing Letter of Credit
in accordance with their Contractual Percentages, and BAI, as the Issuing Bank,
and the Issuing and Paying Agent shall make appropriate adjustments to their
records to reflect such participation.
(e) Notwithstanding anything in Section 2.01(b) or this
Section 2.14 to the contrary, if any Bank shall, at least one Business Day
before the date of issuance of any Letter of Credit, notify the Issuing and
Paying Agent that it is unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Bank or its
Applicable Lending Office to perform its obligation hereunder to acquire a
participation in such Letter of Credit or to fund or maintain any such
participation hereunder, then such Bank shall not participate in such Letter of
Credit and the other Banks shall participate in such Letter of Credit ratably
according to their respective Contractual Percentages (calculated without
including the Commitment of the Bank giving such notice); provided, however,
that if such recalculation would result in any Bank's outstanding Advances,
Letter of Credit participations and aggregate ratable share of any unpaid
reimbursement obligations in respect of Letters of Credit exceeding, in the
aggregate, such Bank's Commitment minus such Bank's Contractual Percentage of
any applicable Underbillings Reserve, or (ii) the sum of (1) the aggregate
amount of all outstanding Advances, plus (2) the aggregate undrawn face amounts
of all of the Letters of Credit, plus (3) the aggregate amount of all unpaid
Letter of Credit reimbursement obligations exceeding the Total Commitment minus
the sum of the Commitment of the Bank giving such notice and any applicable
Underbillings Reserve, then such Letter of Credit shall not be issued.
SECTION 2.15. Termination or Reduction of the Commitments.
The Borrowers shall have the right, upon at least two Business Days' notice to
the Administrative Agent and the
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Issuing and Paying Agent, to terminate in whole or reduce ratably in part the
Unused Commitments of the Banks; provided, however, that each partial reduction
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
SECTION 2.16. Interest Rate Contracts. At any time a Bank
may, but shall have no obligation to, enter into Interest Rate Contracts with
respect to the Advances, provided, however, that the notional amount for all
such Interest Rate Contracts in effect at any time shall not exceed $40,000,000
in the aggregate. The Borrower and the Bank entering into an Interest Rate
Contract shall give written notice to the Administrative Agent, at least three
(3) Business Days prior to entering into any Interest Rate Contract, specifying
the term thereof, the notional amount thereof and requesting that such contract
shall be secured by the Collateral. The Administrative Agent shall, within two
(2) Business Days of such notice, notify the applicable Bank and Borrower
whether, after giving effect to the proposed Interest Rate Contract, such
notional amounts are within the limit set forth above, and if the aggregate
notional amount is within such limit at such time, then the Interest Rate
Contract shall be secured by the Collateral and shall be deemed an "Eligible
Interest Rate Contract" (whether or not the aggregate notional amount for all
Interest Rate Contracts subsequently exceeds such limit).
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness of
This Agreement. This Agreement shall become effective and be deemed effective
on the first Business Day that all of the following conditions precedent shall
have been satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received on or
before the Effective Date all of the following, each dated such day, in form
and substance satisfactory to the Administrative Agent (and, where indicated,
each of the Banks):
(i) 15 original counterparts of this Agreement,
fully-executed, together with all Exhibits and Schedules
hereto, completed to the satisfaction of the Administrative
Agent and the Banks.
(ii) A Note of each of the Borrowers drawn to the
order of each Bank.
(iii) 15 original counterparts of a Security Agreement
(the "Security Agreement Amendment"), fully
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executed, in substantially the form attached hereto as Exhibit
D.
(iv) 15 original counterparts of a Pledge Agreement
(the " Pledge Agreement Amendment"), fully executed,
substantially in the form attached hereto as Exhibit E.
(v) 15 original counterparts of the WMX Guaranty in
the form attached hereto as Exhibit F.
(vi) 15 original counterparts of the WMX Intercreditor
Agreement in the form attached hereto as Exhibit G.
(vii) Certified copies of the resolutions of the
respective Board of Directors of each Borrower evidencing
approval, as applicable, of this Agreement, the Notes and all
of the other instruments, documents and agreements to be
executed and/or delivered in connection with the foregoing, in
each case, to the extent such Borrower is a party thereto, and
all of the other matters contemplated hereby and thereby, and
of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to the
foregoing.
(viii) A favorable opinion of Randall M. Walters,
Esq., counsel for each of the Borrowers, in the form attached
hereto as Exhibit H.
(ix) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying (a) the names and true
signatures of the officers of such Person authorized to sign
this Agreement and the other Transaction Documents and the
other documents or certificates to be delivered pursuant to
this Agreement or such other Transaction Documents and (b)
copies attached thereto of the by-laws of such Person, or, to
the extent applicable, that such by-laws of such Person have
not been amended, supplemented or otherwise modified since May
11, 1993.
(x) Articles/Certificates of Incorporation for each
Borrower, certified by the Secretary of State of the State of
Ohio in which such Person is incorporated.
(xi) Good Standing Certificates for each Borrower
from the Secretaries of State of each state in which the
nature of such Person's business requires that it qualify to
do business.
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(xii) Requests for Information (form UCC-11) and
such other search reports (including, without limitation, tax
lien and judgment searches) regarding each Borrower from such
jurisdictions as the Administrative Agent deems appropriate.
(xiii) Evidence that all insurance required to be
maintained by each Borrower pursuant to Section 5.01(a) is in
effect.
(xiv) Certificates of insurance (or other evidence
of insurance satisfactory to the Administrative Agent) and
lender's loss payable endorsements in respect of any such
insurance policy covering the "Equipment" or "Inventory" (as
such terms are defined in the Security Agreement) of each
Borrower.
(xv) A favorable opinion of Sidley & Austin, special
local counsel to the Administrative Agent, in the form
attached hereto as Exhibit I.
(xvi) A certificate from the Treasurer of OHM
certifying (a) that the conditions precedent set forth in
Section 3.01(b), (f) and (g) have been fulfilled and (b) that
all representations and warranties of and the Borrowers
contained herein and in all of the other Transaction Documents
are true and correct, in each case, as of the Effective Date.
(xvii) Such other agreements, documents and
instruments as shall be reasonably requested by the
Administrative Agent or the Issuing and Paying Agent.
(b) The Rust Transactions shall have been consummated in
compliance with all applicable laws.
(c) All commitment and other fees required to be paid to
the Administrative Agent, the Issuing and Paying Agent or any of the Banks by
the Borrowers hereunder or in connection herewith on or prior to the Effective
Date shall have been paid.
(d) All of the representations and warranties of each of the
Borrowers contained in this Agreement and in any other Transaction Document
shall be true and complete in all material respects on and as of the Effective
Date as though made on and as of such date, except to the extent such
representation or warranty expressly speaks only as of a different date.
(e) No Default or Event of Default shall have occurred and be
continuing or would result from the execution of this Agreement or any of the
other Transaction Documents and the consummation of the transactions and the
extensions of credit
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contemplated by this Agreement and the other Transaction Documents.
(f) There shall not have occurred since December 31, 1994 any
event which, in the reasonable judgment of the Majority Banks, has had a
material adverse effect on the financial condition, operations or businesses of
the Borrowers taken as a whole.
(g) The Prior Credit Agreement shall have been terminated.
The acceptance by either Borrower of the proceeds of any
extensions of credit hereunder shall constitute a representation and warranty
by each of the Borrowers as of the Effective Date that all of the conditions
contained in this Section 3.01 have been satisfied.
SECTION 3.02. Conditions Precedent to Each Extension of
Credit Hereunder. The obligation of each Bank to make an Advance on the
occasion of each Borrowing (including the initial Borrowing hereunder) and the
obligation of each Issuing Bank to issue, and each Bank to participate in, each
Letter of Credit shall be subject to the conditions precedent that on the date
of such Borrowing or issuance:
(a) The following statements shall be true, and, if
requested by the Administrative Agent, the Administrative Agent shall have
received for the account of such Bank or Issuing Bank a certificate or
certificates signed by a duly authorized officer of each Borrower dated the
date of such Borrowing or issuance, stating that:
(i) the representations and warranties contained
in Section 4.01 are correct on and as of the date of such
Borrowing or issuance as though made on and as of such date,
and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or issuance, which
constitutes a Default or an Event of Default, which event has
not been waived by the Majority Banks.
In the absence of a request for such a certificate, the delivery by a
Borrower of a Notice of Borrowing or of a Letter of Credit application
shall constitute each Borrower's representation that each such
statement is and, on the date of such Advance or issuance, shall be
true and correct.
(b) There shall not have occurred since December 31,
1994, in the reasonable judgment of the Majority Banks, a material adverse
change in the financial condition, operations or
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businesses of the Borrowers and their Subsidiaries taken as a whole.
(c) The Administrative Agent shall have received such
other documents or instruments as any Bank or the Issuing Bank through the
Administrative Agent may reasonably request.
(D) Such Borrowing or issuance shall not violate any law,
rule, regulation, writ, order or judgment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrowers. Each Borrower represents and warrants as follows:
(a) Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Agreement and is duly qualified as a foreign
corporation wherever the failure to so qualify would have a material adverse
effect on such Borrower.
(b) The execution, delivery and performance by each
Borrower of this Agreement and the other Transaction Documents to which it is a
party are within such Borrower's corporate powers, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approvals and do not contravene (i) such Borrower's certificate of incorporation
or by-laws, (ii) any law or (iii) any contractual restriction binding on such
Borrower.
(c) This Agreement and the other Transaction Documents to
which each Borrower is a party are, and the Letter of Credit applications when
delivered by each Borrower hereunder will be, legal, valid and binding
obligations of such Borrower enforceable against it in accordance with their
respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency and similar laws affecting the rights of creditors
generally and by general principles of equity.
(d) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by either Borrower of
this Agreement or the Transaction Documents to which it is a party.
(e) Except as disclosed in OHM's Form 10-K filed with the
Securities and Exchange Commission for the year ended December 31, 1994, there
is no pending or, to its knowledge, threatened action or proceeding before any
court, governmental agency or arbitrator, in which there is a reasonable
probability of a determination adverse to either Borrower, any Subsidiary, or
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any Affiliate of either Borrower which may, in any such case, materially
adversely affect the financial condition or operations of the Borrowers taken
as a whole.
(f) The Consolidated balance sheets of OHM and its
Subsidiaries as at December 31, 1994 and March 31, 1995, and the related
statements of income and cash flow for the fiscal year and the three (3)
months, respectively, then ended (copies of which have been furnished to each
Bank) fairly present the Consolidated financial condition of such Persons as at
such dates and the results of the Consolidated operations of such Persons for
the year and the three (3) months, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently applied,
and since December 31, 1994 there has been no material adverse change in the
financial condition, operations, or businesses of the Borrowers taken as a
whole.
(g) As of the Effective Date, neither Borrower maintains
any Plan. No Termination Event has occurred nor is reasonably expected to
occur with respect to any Plan; each Schedule B (Actuarial Information) to an
annual report (Form 5500 Series) hereafter delivered to the Banks with respect
to any Plan will be complete and accurate and fairly present the funding status
of such Plan; and neither Borrower has incurred nor reasonably expects to incur
(either as a result of its own actions or the actions of any ERISA Affiliate)
any withdrawal liability in excess of $100,000 under ERISA to any Multiemployer
Plan, which liability is not reserved for on the books of such Borrower.
(h) Neither Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance or Letter of Credit will be
used to purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock in either case for any
purpose inconsistent with said Regulation U.
(i) No proceeds of any Advance or Letter of Credit will
be used to acquire any security in any transaction which is subject to Section
13 or 14 of the Exchange Act, which transaction shall not have received the
prior approval of the board of directors of each Person which is an issuer of
securities to be acquired in such transaction.
(j) The proceeds of the Advances hereunder will be used
for general corporate purposes.
(k) Attached hereto as Schedule 4.01(k) is a true and
complete list of all domestic Subsidiaries and of all foreign Subsidiaries,
including in each case the jurisdiction
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of incorporation of such Subsidiaries and the ownership of the capital stock
thereof.
(l) As of the Effective Date, (i) such Borrower is in
compliance in all material respects with all Environmental Laws and health and
safety statutes and regulations, (ii) there are no material governmental
investigations of the environmental matters of such Borrower, (iii) there are
no contingent liabilities which could reasonably be expected to have a material
adverse effect on the financial condition or operations of such Borrower taken
as a whole, and (iv) the transactions set forth herein and contemplated hereby
shall not subject the Administrative Agent, the Issuing and Paying Agent, the
Banks, any Issuing Bank or any of their respective Affiliates or properties to
any Environmental Law (including without limitation, any clean- up
responsibility law or restrictive transfer law or regulation).
(m) The Rust Transactions have been consummated in
accordance with all applicable laws.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants of the Borrowers Other
Than Reporting Requirements. So long as any Note or any payment due hereunder
shall remain unpaid or any Bank shall have any Commitment hereunder, each
Borrower will, unless the Majority Banks shall otherwise consent in writing,
and shall cause each Subsidiary to:
(a) Maintenance of Insurance. Maintain with financially
sound and reputable insurers, insurance with respect to its properties and
business against such liabilities, casualties, risks and contingencies and in
such types and amounts as is customary in the case of Persons engaged in the
same or similar businesses and similarly situated.
(b) Maintenance of Properties, Etc. Except as otherwise
permitted pursuant to Section 5.02(c), maintain and preserve all of its
properties, necessary in the proper conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(c) Keeping of Records and Books of Account. Keep
adequate records and books of account, in which complete entries will be made
in accordance with generally accepted accounting principles consistently
applied, reflecting all financial transactions of such Person.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain its corporate existence, rights and privileges in the jurisdiction
of its incorporation, and qualify
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and remain qualified as a foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse effect on such Person;
provided, however, that nothing herein contained shall prevent any merger or
consolidation permitted under this Agreement.
(e) Law. Comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges and liens imposed upon it or upon its
property, except to the extent contested in good faith and by appropriate
proceedings and to the extent adequate reserves are maintained with respect
thereto in accordance with generally accepted accounting principles.
(f) Visitation Rights. At any reasonable time and from
time to time on reasonable notice, permit any of the Banks or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, such Borrower,
and to discuss the affairs, finances and accounts of such Person with any of
their respective officers or directors.
(g) Subsidiary Guaranties. Cause each existing or future
Subsidiary (other than any Subsidiary which is a Borrower) to execute and
deliver, upon request of the Administrative Agent, to the Issuing and Paying
Agent an unconditional secured guaranty of the Obligations, and, upon request
of the Administrative Agent during a Secured Period, pledge the stock of any
such Subsidiary to the Issuing and Paying Agent, for the benefit of the Banks.
SECTION 5.02. Negative Covenants of the Borrowers. So long
as any Note or any payment due hereunder shall remain unpaid or any Bank shall
have any Commitment hereunder, neither of the Borrowers nor any Subsidiary
will, unless the Majority Banks 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 Issuing and
Paying Agent securing payment and performance of the
Obligations;
(ii) Customary Permitted Liens;
(iii) 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
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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;
(iv) Liens listed on Schedule 5.02(a)(iv) hereto
(but not any increase in the debt secured thereby or any
enlargement of properties or assets covered thereby);
(v) Liens with respect to judgments which do not
result in an Default or Event of Default under or a breach of
this Agreement;
(vi) 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;
(vii) Liens securing Permitted Other Indebtedness;
provided that such Liens attach only to those assets which are
acquired with the proceeds of any purchase money Indebtedness
constituting Permitted Other Indebtedness or the assets which
are the subject of any Long-Term Lease Obligation constituting
part of Permitted Other Indebtedness;
(viii) rights reserved to or vested in any
municipality or governmental, statutory or public authority by
the terms of any right, 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 any Borrower;
(ix) rights reserved to or vested in any
municipality or governmental, statutory or public authority to
control or regulate any property of any Borrower or to use
such property in a manner which does not materially impair the
use of such property for the purposes for which it is held by
such Borrower;
(x) rights of a common owner of any interest in real
estate, rights of way or easements held by any Borrower and
such common owner as tenants in common or through other common
ownership;
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(xi) zoning, planning, ordinances and municipal
regulations;
(xii) servitudes, easements, 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 any Borrower;
(xiii) Liens on the assets of a Subsidiary at the
time it becomes a Subsidiary; and
(xiv) Liens securing obligations owed to WMX under
the WMX Reimbursement Agreement or arising in favor of WMX
under principles of subrogation as a result of payments made
by WMX under the WMX Guaranty.
(b) Mergers, Etc. Except as otherwise permitted pursuant
to Section 5.02(c) and this Section 5.02(b), merge or consolidate with, or
sell, assign, lease, dispose of or otherwise transfer (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to, any Person, except that
(i) any Subsidiary may merge into or consolidate with or so transfer its assets
to any wholly owned Subsidiary and (ii) any Person (other than a Subsidiary)
may merge into or so transfer its assets to OHM or a wholly owned Subsidiary
thereof; provided, however, that (1) both immediately before and after giving
effect thereto, no Default or Event of Default shall be outstanding or result
therefrom, (2) in the case of any such merger or consolidation to which OHM is
a party, OHM is the surviving corporation, (3) the resulting Person of any such
merger or consolidation is OHM or a wholly owned Subsidiary and (4) neither
Borrower may merge or consolidate with, or transfer its assets to, the other
Borrower.
(c) Sales, Etc. of Assets. Sell, assign, lease or
otherwise dispose of a substantial part of its assets, other than:
(i) in connection with a transaction permitted by Section
5.02(b);
(ii) the sale or other disposition of obsolete, unnecessary
or redundant equipment;
(iii) the sale or other disposition of equipment to be
replaced with other equipment acquired with the proceeds of such sale
or other disposition, provided that the acquisition of the replacement
equipment is otherwise permitted pursuant to the terms of this
Agreement;
(iv) the sale of assets (other than those described in the
immediately preceding clauses (ii) and (iii)) in the
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ordinary course of such Persons's business in an aggregate amount not
to exceed 5% of Net Worth during any Secured Period or 10% of Net
Worth during any Unsecured Period (based on the higher of the book or
market value of such assets at the time of such sale) in any fiscal
year of such Person; and
(v) the sale by OHM of shares of the common stock of NSC
Corporation currently owned by OHM; provided, however, that prior to
the date of any such proposed sale, an Authorized Officer of OHM shall
have delivered a certificate to the Administrative Agent and the
Issuing and Paying Agent certifying that the board of directors of OHM
has approved such sale and had determined that the sale price was at
or above the fair market value of the stock being sold;
(vi) the sale or other transfer of assets to any Person other
than an Affiliate of either Borrower, which sale or transfer is
promptly followed by the lease by either Borrower, as lessee, of the
same assets.
(d) Operating Leases. Enter into any operating lease as
lessee if (after giving effect to such lease) the aggregate amount of the lease
payments under all operating leases which are required to be made by the
Borrowers during any consecutive 12 month period would exceed $15,000,000;
provided, that the limitation with respect to operating leases under this
Section shall apply only (i) if the WMX Guaranty is no longer in effect, if the
Borrowers' financial performance has failed, as of the end of any fiscal
quarter, to satisfy the conditions for Level 4 set forth on the Facility B Rate
Determination Table, or (ii) if the WMX Guaranty is in effect, if (A) the
Borrowers' financial performance has failed, as of the end of any fiscal
quarter, to satisfy the conditions for Level 4 set forth on the Facility B Rate
Determination Table, and (B) the aggregate outstanding Advances plus the
aggregate undrawn face amount of outstanding Letters of Credit plus any unpaid
reimbursement obligations in respect of Letters of Credit, computed as an
average daily amount, exceeds the Total A Commitment for either (1) the thirty
day period prior to the occurrence of such failure or (2) any thirty day period
so long as such failure continues.
(e) Nature of Business. Materially change the nature of
its business as conducted at the Effective Date.
(f) Restricted Payments. (i) Declare or pay any
dividends (other than stock dividends payable in common stock of OHM),
purchase, redeem, retire or otherwise acquire for value any of its capital
stock, return any capital to its stockholders as such or make any distribution
to its stockholders as such, in each case with respect to its capital stock or
that of the other Borrower or (ii) make any payment or prepayment of principal
of, premium, if any, or interest on, or any redemption, purchase,
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retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Indebtedness of either Borrower (all such payments, collectively,
"Restricted Payments"), except that so long as no Default or Event of Default
exists or would result therefrom (A) Remediation may make Restricted Payments
to OHM, (B) either Borrower may make regularly scheduled payments of principal,
interest or sinking fund payments on Subordinated Indebtedness, and (C) the
Borrowers may make Restricted Payments in an aggregate amount not to exceed
$5,000,000 in order to make non-current sinking fund payments on the Debentures
or to purchase or redeem the Debentures, provided that any such sinking fund
payments are applied in the order of maturity. In addition, (1) during any
Facility B Level 3 Period, the Borrowers may make Restricted Payments so long
as, after giving effect thereto, the aggregate Restricted Payments made since
the Effective Date shall not exceed $10,000,000, (2) during any Facility B
Level 2 Period, the Borrowers may make Restricted Payments so long as, after
giving effect thereto, the aggregate Restricted Payments made since the
Effective Date shall not exceed $25,000,000, and (c) during any Facility B
Level 1 Period, the Borrowers may make Restricted Payments so long as no
Default or Event of Default is outstanding (or would result therefrom) and the
making of such Restricted Payment would not cause the Borrowers' performance to
fall below Level 1 for Facility B.
(g) Accounting Treatment. Make any significant change in
accounting treatment or reporting practices except either (i) as required by
changes in generally accepted accounting principles or (ii) as permitted in
accordance with generally accepted accounting principles and, in each such
case, concurred in by such Person's independent public accountants, or change
its Consolidated fiscal year end.
(h) Affiliate Transactions. Enter into any loan,
purchase, sale or other transaction, whether or not in the ordinary course of
business, with any Affiliate of such Person other than on terms and conditions
at least as favorable to such Person as would be obtainable at the time in a
comparable arm's-length transaction with a Person other than such Affiliate;
provided, however, that all Indebtedness of either Borrower arising from any
such transaction (other than Indebtedness of OHM to Remediation pursuant to
clause (iii) below) shall constitute Subordinated Indebtedness; and provided,
further, that:
(i) Either of the Borrowers may enter into any purchase, sale
or other transaction (other than a loan transaction) with the other
Borrower on terms which are other than arm's-length, in each case, to
the extent such purchase, sale or other transaction is otherwise
permitted pursuant to the terms of this Agreement and the other
Transaction Documents;
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(ii) (A) Either Borrower may make Investments in wholly-owned
Subsidiaries as permitted by Section 5.02(i)(v), (B) OHM may make
advances to or borrow from Capital National in connection with OHM's
self-insurance program, (C) as permitted by Section 5.02(i)(iv) and
5.02(j)(vi), and (D) OHM may have Indebtedness owing to EFSC as
permitted by Section 5.02(j)(v);
(iii) Remediation may make loans to OHM;
(iv) the Borrower may enter into and perform their
obligations under the WMX Reimbursement Agreement and any related
security agreement; and
(v) OHM may (a) issue to WMX, pursuant to the terms of the
Reorganization Agreement, warrants to purchase common stock of OHM,
(B) issue common stock to WMX upon the exercise of any such warrants;
and (C) otherwise perform its obligations under such warrants.
(i) Investments. Make any investment in any Person,
whether by way of loan, advance, capital contribution, acquisition of stock or
other security or otherwise ("Investments"); provided, however, that the
foregoing restrictions shall not be applicable to the following:
(i) Loans or advances to either Borrower
constituting Subordinated Indebtedness, which loans and
advances are evidenced by appropriate entries in the books and
records of such Person;
(ii) Investments existing as of the Effective Date
and listed on Schedule 5.02(i)(ii) hereto (but not any
subsequent enlargement thereof);
(iii) advances by OHM to Capital National in
connection with OHM's self-insurance program;
(iv) Investments in wholly-owned Subsidiaries of
either Borrower, each which Investment shall be specifically
related to an environmental remediation project undertaken or
to be undertaken by the applicable wholly-owned Subsidiary;
provided, however, that during any Secured Period, the
aggregate amount of such Investments by both Borrowers at any
time outstanding shall not exceed 10% of Net Worth at such
time;
(v) Investments in wholly-owned Subsidiaries in
nominal amounts (individually and in the aggregate) to cover
normal operating expenses of such Subsidiaries in the ordinary
course of business;
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(vi) Investments in (A) direct obligations and
repurchase agreements of the United States or any agency
or instrumentality thereof whose obligations constitute
full faith and credit obligations of the United States or
have a rating of "A-1" or better by Standard and Poor's
Corporation or "P-1" or better by Moody's Investors
Service Inc., in each case having a maturity of three
months or less, (B) commercial paper, in an aggregate
amount not exceeding $2,000,000 per issuer, issued by
corporations organized in the United States and having a
rating of "A-1" or better by Standard & Poor's
Corporation or "P-1" or better by Moody's Investors
Service Inc., in each case having a maturity of three
months or less, (C) certificates of deposit or bankers
acceptances having a maturity of three months or less
issued by members of the Federal Reserve System organized
in the United States and having deposits in excess of
$100,000,000 and ratings equivalent to those described in
the preceding clause (B), in an aggregate amount not
exceeding $2,000,000 per issuer, and (D) Eurodollar time
deposits in domestic or foreign commercial banks with
assets in excess of $10,000,000,000 having a maturity of
three months or less and ratings equivalent to those
described in the preceding clause (B), in an aggregate
amount not to exceed $2,000,000 per issuer;
(vii) any transaction permitted by Section 5.02
(b);
(viii) any Investment in any joint venture with
any other Person entered into specifically for the
purpose of performing and completing a specific
environmental remediation project or projects, which
Investments shall be made to fund (a) capital
expenditures made by such joint venture in connection
with any such project or (b) the ordinary course working
capital requirements of such joint venture relating to
such project or projects; and
(ix) Investments in nominal amounts of the
capital stock of competitors of the Borrower and of other
Persons involved in the environmental service industry
for purposes of acquiring the quarterly and annual
reports, shareholder reports and other information
distributed by such competitors and such other Persons,
respectively, to their shareholders, provided that, if
requested by the Administrative Agent, such stock is
pledged to the Issuing and Paying Agent for the benefit
of the Banks.
(j) Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness other than:
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(i) the Indebtedness under this Agreement, the Notes,
the Letters of Credit and the other Transaction Documents;
(ii) Subordinated Indebtedness other than that
represented by the Debentures;
(iii) Indebtedness evidenced by the Debentures, in the
amount outstanding as of the Effective Date (as the same may be
amortized from time to time);
(iv) Indebtedness outstanding under (and in accordance
with) the Bank of Tokyo Agreement for financing capital
expenditures at the Baird and McGuire incineration project in
Holbrook, Massachusetts, in an amount not exceeding $8,000,000,
in the aggregate, at any time outstanding;
(v) Indebtedness of OHM to EFSC in an aggregate amount
not to exceed $91,000,000 at any time outstanding;
(vi) Indebtedness of OHM to Capital National created by
loans or advances from Capital National to OHM in connection with
OHM's fronted self-insurance program;
(vii) other Indebtedness existing as of the Effective
Date and listed on Schedule 5.02(j)(vii) hereto (but not any
subsequent increases thereof);
(viii) at any time other than during a Facility B Level
5 Period, unsecured Indebtedness;
(ix) any other purchase money Indebtedness (or
refinancings thereof secured by the same assets) and Long Term
Lease Obligations provided, that purchase money Indebtedness (and
refinancings thereof) and Long-Term Lease Obligations permitted
under this clause are limited to such purchase money Indebtedness
(and refinancings thereof) and Long-Term Lease Obligations which,
at the time of incurrence of any such purchase money Indebtedness
(or the refinancings thereof) or Long-Term Lease Obligations (and
after giving effect to such incurrence), would not in the
aggregate exceed (a) $30,000,000 during any Facility B Level 5
Period, Facility B Level 4 Period or Facility B Level 3 Period,
(b) twenty-five percent (25%) of Net Worth during any Facility B
Level 2 Period, or (c) thirty percent (30%) of Net Worth during
any Facility B Level 1 Period (purchase money Indebtedness and
Long Term Lease Obligations described in this clause (ix) being
"Permitted Other Indebtedness"); and
(x) any Indebtedness owed to WMX under the WMX
Reimbursement Agreement as a result of payments made by WMX under
the WMX Guaranty or any subrogation rights of WMX
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arising as a result of payments made by WMX under the WMX
Guaranty.
(k) Issuance of Additional Equity. Issue any additional
stock or other equity securities; provided, however, that OHM shall be
permitted to issue additional stock (including, without limitation, the
issuance of additional stock in connection with any conversion of the
Debentures into common shares of OHM or pursuant to OHM's stock option
plans) so long as (i) no such stock or equity shall have preferential
(other than class voting rights of preferred stockholders under certain
circumstances) or weighted voting rights or be convertible into
Indebtedness, (ii) no mandatory redemption thereof shall be scheduled to
occur prior to the maturity of the Debentures, (iii) the issuance thereof
would not violate the terms of the Debentures or cause a Default or Event
of Default under Section 6.01(m), and (iv) if such stock is preferred
stock (x) the stated dividend rate thereof shall not exceed the stated
interest rate of the Debentures and (y) no sinking fund payment shall be
required to be made in respect thereof in any amount greater than the
amount of, or on any date prior to the date upon which, the stinking fund
payments in respect of the Debentures are required to be made.
(l) Capital Expenditures. Make, or permit any of
their Consolidated Subsidiaries to make, any capital expenditures (whether
payable in cash or other property or accrued as a liability), whether by
purchase, capital lease or otherwise, if, following such incurrence, total
Capital Expenditures for the then current fiscal quarter and the three
immediately preceding fiscal quarters would exceed (i) $30,000,000 during
a Facility B Level 5 Period, (ii) $35,000,000 during a Facility B Level 4
Period, (iii) $40,000,000 during a Facility B Level 3 Period or (iv)
$50,000,000 during a Facility B Level 2 Period. This Section will not
limit the incurrence of Capital Expenditures during any Facility B Level 1
Period.
(m) Minimum Net Worth. Permit Net Worth as at the end
of any fiscal quarter of the Borrowers to be less than the sum of (1) Net
Worth as of March 31, 1995, minus (2) $______ (which amount constitutes
twenty-five percent (25%) of the net cash proceeds received by OHM from
the issuance of common stock of OHM completed on March 28, 1995), plus (3)
$______ (which amount constitutes fifty percent (50%) of the increase in
Net Worth arising from the Rust Transactions, plus (4) fifty percent (50%)
of the net income of the Borrowers and their Consolidated Subsidiaries for
each fiscal quarter following March 31, 1995 (it being agreed that if net
income is negative for any fiscal quarter, it shall be deemed to be zero
for the purposes of this clause (4)), minus (5) the amount of any
reductions to Net Worth as a result of purchase accounting adjustments
made within one year of the closing of the Rust Transactions in connection
with the Rust Transactions, minus (6) the amount of any other
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reductions to Net Worth, but not to exceed $3,000,000, as a result of
accounting adjustments (other than purchase accounting adjustments) made
within one year of the closing of the Rust Transactions in connection with
the Rust Transactions.
(n) EBITDA to Interest Expense Ratio. Permit the EBITDA
to Interest Expense Ratio to be less than the following amounts on the
last day of each fiscal quarter of the Borrowers in each of the following
fiscal years:
Minimum EBITDA to
Fiscal Year Interest Expense Ratio
----------- ----------------------
1995 3.00 to 1.0
1996 3.00 to 1.0
1997 3.25 to 1.0
1998 3.25 to 1.0
1999 3.25 to 1.0
2000 3.25 to 1.0
(o) Maximum Funded Debt to EBITDA Ratio. Permit the
Funded Debt to EBITDA Ratio to exceed the following amounts as of the last
day of any of the following fiscal quarters of the Borrowers:
Maximum Funded Debt
Fiscal Quarter Ending to EBITDA Ratio
--------------------- -------------------
June 30, 1995 4.75 to 1.0
September 30, 1995 and 4.50 to 1.0
on the last day of
each fiscal quarter
ending thereafter
SECTION 5.03. Reporting Requirements. So long as any
Note or any payment due hereunder shall remain unpaid or any Bank shall
have any Commitment hereunder, the Borrowers will furnish to the
Administrative Agent, the Issuing and Paying Agent and each Bank, unless
the Majority Banks shall otherwise consent in writing:
(a) during any Facility B Level 5 Period, as soon as
available and in any event within 30 days after the end of each calendar
month (or 45 days with respect to the months of January, February, March,
June, September and December), Consolidated and consolidating balance
sheets of the Borrowers as of the end of such month, and a Consolidated
statement of cash flow and Consolidated and consolidating statements of
income for the Borrowers (and a Consolidated statement of cash flow for
Remediation) for such month and for the period commencing at the end of
the previous fiscal year and ending with the end of such month;
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(b) (i) as soon as available and in any event within
45 days after the end of each of the first three quarters of each fiscal
year of OHM, Consolidated and consolidating balance sheets of the
Borrowers as of the end of such quarter and a Consolidated statement of
cash flow and Consolidated and consolidating statements of income of the
Borrowers (and a Consolidated statement of cash flow for Remediation) for
the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, and (ii) as soon as available such other
financial statements as may be prepared from time to time for any
unconsolidated subsidiary of either Borrower, each certified by the chief
financial officer, the chief accounting officer or the treasurer of such
unconsolidated subsidiary;
(c) as soon as available and in any event within 90
days after the end of each fiscal year of OHM, (i) a copy of the annual
report for such year of OHM, containing financial statements for such year
certified in an unqualified manner by Ernst & Young (or any successor to
such firm) or any other independent public accountants acceptable to the
Majority Banks and (ii) consolidating balance sheets of the Borrowers as
of the end of such year and consolidating statements of income of the
Borrowers (and a Consolidated statement of cash flow for Remediation) for
such year, each certified by the chief financial officer, the chief
accounting officer or the treasurer of OHM and, if applicable,
Remediation;
(d) together with each delivery pursuant to
paragraph (b) or (c) of this Section 5.03, a certificate of the chief
financial officer, the chief accounting officer or the treasurer of OHM,
in form reasonably acceptable to the Administrative Agent, with respect to
the Borrowers' compliance with the provisions of Sections 5.01 and 5.02;
(e) within 45 days after the end of each fiscal
quarter of OHM, a certificate of the chief financial officer, the chief
accounting officer or the treasurer of OHM, in form reasonably acceptable
to the Administrative Agent, setting forth the EBITDA to Interest Expense
Ratio and the Funded Debt to EBITDA Ratio, together with the calculations
thereof, for the preceding four fiscal quarter period then ending, and if
a Facility B Level 3 Period, Facility B Level 4 Period or Facility B Level
5 Period is then in effect, such certificate shall also set forth the
amount of the Underbillings Reserve as of the end of such fiscal quarter
together with the calculation thereof;
(f) promptly after the sending, filing or issuance
thereof, copies of all reports or other material which either Borrower
sends pursuant to any requirement of the Securities Act of 1933 or the
Exchange Act to any of its security holders, copies of all reports and
registration statements which such Person files with the Securities and
Exchange Commission or any national securities exchange and copies of all
press releases
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issued by either Borrower; and within 30 days after receipt thereof by
either Borrower, copies of any report or other material which any of the
NSC Companies sends pursuant to any requirement of the Securities Act of
1933 or the Exchange Act to any of its security holders;
(g) as soon as possible and in any event (i) within
fifteen days after either Borrower or any of its Affiliates knows or has
reason to know that any Termination Event described in clause (a) of the
definition of Termination Event with respect to any Plan has occurred and
(ii) within fifteen days after either Borrower or any of its Affiliates
knows or has reason to know that any other Termination Event with respect
to any Plan has occurred, a detailed statement of the chief financial
officer of such Borrower describing such Termination Event and the action,
if any, which such Borrower or such Affiliate proposes to take with
respect thereto;
(h) promptly and in any event within five Business
Days after receipt thereof by either Borrower or any of its Affiliates
from the PBGC, copies of each notice received by such Borrower or any such
Affiliate of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(i) from time to time upon request of the
Administrative Agent, copies of each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) with respect to each Plan;
(j) promptly and in any event within ten Business
Days after receipt thereof by either Borrower or any of its Affiliates
from a Multiemployer Plan sponsor, a copy of each notice received by such
Borrower or such Affiliate concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA in any individual
instance or in the aggregate in excess of $1,000,000;
(k) within two Business Days after the occurrence of
any event which constitutes a Default or Event of Default, notice of such
occurrence together with a detailed statement of the chief financial
officer or the chief accounting officer of OHM of the action being taken
by the Borrowers to cure the effect of such event;
(l) as soon as available and in any event not later
than February 28 of each fiscal year, a business plan for such fiscal year
of the Borrowers, such business plan to include a statement in reasonable
detail of the assumptions and goals underlying such business plan and such
business plan to address such matters concerning the business, operations
and finances of the Borrowers as any Bank through the Administrative Agent
may reasonably request;
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(m) promptly and in any event within five Business
Days after receipt thereof by either Borrower or either of the Borrowers'
respective Subsidiaries, a copy of each notice, citation or other
communication from the United States Environmental Protection Agency, any
state environmental protection agency, any court or any other governmental
Person, and of each consent agreement, consent decree, judgment or other
document with any such Person, in each case asserting an actual or
potential violation, fine, penalty, enforcement action or liability of or
against such Borrower, any such Subsidiary or any of the NSC Companies
under any Environmental Law, the effect or adverse determination of which
may have a materially adverse effect on the properties, condition
(financial or otherwise), operations or business of the Borrowers taken as
a whole;
(n) as soon as available and in any event within 45
days after the end of each calendar quarter, a report with respect to
projects having a value in excess of $1,000,000 being performed by
Remediation (including any of the projects acquired as part of the Rust
Transactions) at the end of such quarter (other than "time and materials"
or "cost plus" projects), such report to include information in reasonable
detail with respect to such matters and to be otherwise in form and
substance satisfactory to the Banks;
(o) not less often than quarterly, a summary
accounts receivable aging in form and detail reasonably satisfactory to
the Administrative Agent, with respect to the accounts of the Borrowers;
(p) promptly, and in any event within two Business
Days, after either Borrower learns of the same, notice of any default by
WMX with respect to any indebtedness of WMX with a principal amount of
$50,000,000 or more, or of any change in the Credit Rating of WMX;
(q) immediately upon receipt thereof, a copy of any
Freeze Notice sent by WMX under the WMX Guaranty; and
(r) such other information respecting the condition
(financial or otherwise) or operations of either Borrower or any of their
Subsidiaries as any Bank through the Administrative Agent may from time to
time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events (the "Events of Default") shall occur:
(a) Either Borrower shall fail to pay (i) any
installment of principal of any Note when due; or (ii) any reimbursement
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obligation with respect to a drawing under any Letter of Credit when due;
or (iii) any interest on any Note, or any fees or other Obligations
hereunder, in each case when due or within one Business Day thereafter;
provided, however, that if the Borrowers, in good faith, shall dispute the
amount of interest or fees that are owing and shall give notice of such
dispute to the Issuing and Paying Agent prior to the time when such
payment became due, no Event of Default shall be deemed to exist if such
disputed amount of interest or fees is not paid for such period as the
Borrowers shall be diligently working with the Issuing and Paying Agent to
resolve such dispute, which period shall in no event exceed five Business
Days after the date on which such interest or fees were originally due or,
if shorter, one Business Day after such dispute is resolved; and provided,
further, that nothing in the preceding proviso shall permit or be deemed
to permit a deferral of the payment of any non- disputed portion of any
interest or fees which are due hereunder; or
(b) Any representation or warranty made or deemed
made by either of the Borrowers under this Agreement, the Notes, any
Letter of Credit application, any other Transaction Document or in any
certificate furnished pursuant hereto or thereto shall prove to have been
incorrect in any material respect when made or deemed made; or
(c) Either Borrower shall fail to perform or observe
any of the covenants set forth in Sections 5.02(b), 5.02(e) - (g),
inclusive, 5.02(i) (excluding 5.02(i)(vi)), 5.02(j) or 5.02(k); or
(d) Either of the Borrowers shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement
on its part to be performed or observed and any such failure shall remain
unremedied for (20) twenty Business Days after written notice thereof
shall have been given to such Borrower by the Administrative Agent; or
(e) Either of the Borrowers shall fail to pay any
Indebtedness (including accrued and unpaid interest, if any) of such
Borrower, or any interest or premium thereon, with respect to which the
aggregate outstanding principal balance equals or exceeds five percent
(5%) of Net Worth, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or any other
default under any agreement or instrument relating to any such
Indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to cause the
acceleration of the maturity of, or to permit the holder or holders
thereof to accelerate the maturity of, Indebtedness of
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either of the Borrowers in an aggregate outstanding principal amount which
equals or exceeds five percent (5%) of Net Worth; or
(f) Either of the Borrowers shall fail to perform or
observe any other term, covenant or agreement contained in any of the
Transaction Documents (other than this Agreement) on its part to be
performed or observed, or an event of default under any such Transaction
Document shall occur, and any such failure or event of default shall
remain unremedied or uncured, as the case may be, for ten (10) days after
written notice thereof shall have been given to such Borrower by the
Administrative Agent; or
(g) Either of the Borrowers shall admit in writing
its inability to pay its debts generally as they become due, or shall make
an assignment for the benefit of creditors; or either of the Borrowers
shall apply for or consent to the appointment of any receiver, custodian,
interim trustee, trustee, or similar officer for it or for all or any
substantial part of its property; or any such receiver, custodian, interim
trustee, trustee or similar officer shall be appointed without the
application or consent of either of the Borrowers and such appointment
shall continue undischarged for a period of 60 days; or either of the
Borrowers shall institute (by petition, application, answer, consent or
otherwise) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding
relating to it under the laws of any jurisdiction; or any such proceeding
shall be instituted (by petition, application or otherwise) against either
of the Borrowers and either an order for relief is granted in such
proceeding or such proceeding shall remain undismissed for a period of 60
days; or either of the Borrowers shall take any corporate action to
authorize any of the actions set forth above in this subsection (g); or
any judgment, writ, warrant of attachment or execution or similar process
shall be issued or levied against a substantial part of the property of
either of the Borrowers and such judgment, writ, or similar process shall
not be released, vacated or fully bonded within 60 days after its issue or
levy; or an order for relief under Title 11 of the United States Code
shall be entered against either of the Borrowers;
(h) Any Termination Event with respect to a Plan
shall have occurred and within 30 days thereafter (i) such Termination
Event (if correctable) shall not have been corrected and (ii) the then
present value of such Plan's vested benefits exceeds the then current
value of assets accumulated in such Plan by more than two and one-half
percent (2.50%) of Net Worth (or in the case of a Termination Event
described in clause (b) of the definition of Termination Event, the
withdrawing employers' proportionate share of such excess shall in the
aggregate exceed such amount); or any Borrower or any of its ERISA
Affiliates as an employer under a Multiemployer Plan shall have made a
complete or partial withdrawal from such Multiemployer Plan and the plan
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sponsor of such Multiemployer Plan shall have notified such withdrawing
employer that such employer has incurred a withdrawal liability in an
annual amount exceeding two and one-half percent (2.50%) of Net Worth; or
(i) This Agreement, the Notes, the Security
Agreement, the Pledge Agreement, the WMX Guaranty or any of the other
Transaction Documents shall be terminated (other than pursuant to their
respective terms), revoked, or declared void or invalid; or
(j) Any judgment or judgments is or are entered
against either of the Borrowers in an aggregate amount in excess of (i)
$20,000,000 (whether or not covered by insurance), the execution of which
has not been stayed by appeal or otherwise within 30 days after the date
of entry thereof, or which is paid by either Borrower or on which
enforcement proceedings have been commenced or (ii) two and one-half
percent (2.50%) of Net Worth which is not covered by insurance and is not
stayed by appeal or otherwise within 30 days after the date of entry
thereof, or which is paid by either Borrower or on which enforcement
proceedings have been commenced; or
(k) The loss, destruction, condemnation, seizure,
appropriation or taking of any material and substantial portion (taken as
a whole) of the property of the Borrowers; or
(l) During any Secured Period, this Agreement and/or
the other Transaction Documents shall cease to create valid and perfected
security interests (which, prior to the commencement of the first
Unsecured Period, shall be first priority) in any material and substantial
portion of the Collateral covered thereby, except in accordance with the
terms thereof;
(m) Any "person" (within the meaning of Section
13(d) of the Exchange Act) other than the WMX Group shall directly or
indirectly acquire beneficial ownership (within the meaning of Rule 13d-3
and Rule 13d-5 of the Securities and Exchange Commission under the
Exchange Act) of 40% or more (on a fully diluted basis) of the aggregate
voting stock and other voting securities (including all other securities
convertible into voting stock or other voting securities) of OHM entitled
to vote for the election of director; or
(n) The occurrence of any Freeze Event or the
sending by WMX of a Freeze Notice;
then, (i) upon the occurrence of an Event of Default of the type described
in the immediately preceding clause (g), the obligation of each Bank to
make Advances and participate in Letters of Credit and the obligation of
any Issuing Bank to issue Letters of Credit shall, in each case,
automatically and immediately terminate and all amounts owing by the
Borrowers hereunder, under the Notes, and under all of the other
Transaction Documents,
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including all accrued interest and fees and all contingent liabilities
under the Letters of Credit (which liabilities may be satisfied by the
Borrowers delivering to, and continuing to maintain with, the Issuing and
Paying Agent cash collateral in the aggregate amount of all Letters of
Credit outstanding at such time), shall become immediately due and
payable, without demand, presentment, notice or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or
accelerate and of acceleration) all of which are hereby waived by the
Borrowers, and (ii) upon the occurrence of any other Event of Default, the
Administrative Agent shall at the request of the Majority Banks, or may
with the consent of the Majority Banks, (1) declare the obligations of
each Bank to make Advances and participate in Letters of Credit and the
obligation of any Issuing Bank to issue Letters of Credit, to be
terminated, whereupon the same shall forthwith terminate, (2) declare all
amounts owing by the Borrowers hereunder, under the Notes, and under all
of the other Transaction Documents, including all accrued interest and
fees and all contingent liabilities under the Letters of Credit to be
forthwith due and payable, whereupon such amounts shall immediately become
due and payable without demand, presentment, notice or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or
accelerate and of acceleration) all of which are hereby waived by the
Borrowers, and (3) require the Borrowers to deposit with the Issuing and
Paying Agent cash collateral in an amount equal to the aggregate undrawn
face amount of all Letters of Credit outstanding at such time.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Bank
hereby appoints and authorizes each of the Administrative Agent and the
Issuing and Paying Agent (collectively, for purposes of this Article VII,
the "Agents") to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to such Agent by the
terms hereof together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes)
the Agents shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Banks and such instructions shall be binding
upon all Banks and all holders of Notes; provided, however, that neither
Agent shall be required to take any action which exposes such Agent to
personal liability or which is contrary to this Agreement or applicable
law.
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SECTION 7.02. Agents' Reliance, Etc. Neither Agent nor
any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by them in good faith
under or in connection with this Agreement, except for their own gross
negligence or willful misconduct. Without limitation of the generality of
the foregoing, each Agent: (i) may treat the payee of any Note as the
holder thereof until such Agent receives written notice of the assignment
or transfer thereof signed by such payee and in form satisfactory to such
Agent; (ii) may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any
Bank; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement on the part of either Borrower or to inspect the property
(including the books and records) of either Borrower; (v) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
instrument or document furnished pursuant hereto, or any Collateral
covered hereby; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citicorp USA, BAI and Affiliates. With
respect to its Commitment, the Advances made by it, the Letters of Credit
in which it participates and the Notes issued to it, each of Citicorp USA
and BAI shall have the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not an Agent; and
the term "Bank" or "Banks" shall, unless otherwise expressly indicated,
include Citicorp USA in its individual capacity and BAI in its individual
capacity. Citicorp USA and BAI and their affiliates may accept deposits
from, lend money to, act as a trustee under indentures of, and generally
engage in any kind of business with, either Borrower, and any person or
entity who may do business with or own securities of either Borrower, all
as if Citicorp USA or BAI were not an Agent and without any duty to
account therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank
acknowledges that it has, independently and without reliance upon either
Agent or any other Bank and based on the financial statements referred to
in Section 4.01(f) and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon either Agent or any other Bank and
based on
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such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. The Banks agree to
indemnify each Agent (to the extent not reimbursed by the Borrowers)
ratably according to the respective amounts of such Banks' Commitments,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against such Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by such Agent under this
Agreement, provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse each Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees)
incurred by such Agent in connection with the enforcement of, or legal
advice in respect of rights and responsibilities under, this Agreement to
the extent that such Agent is not reimbursed for such expenses by the
Borrowers.
SECTION 7.06. Successor Agents. Each of the Agents may
resign at any time by giving ten (10) Business Day's prior written notice
thereof to the Banks and the Borrowers and may be removed at any time with
or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent or Issuing and Paying Agent, as the case may be;
provided, however, that upon the resignation or removal of the
Administrative Agent, the Issuing and Paying Agent shall immediately be
and become (and hereby accepts appointment as) the Administrative Agent
hereunder unless and until a successor Administrative Agent is appointed
as provided in this Section 7.06. Subject to such provision, if no
successor Administrative Agent or Issuing and Paying Agent, as the case
may be, shall have been so appointed by the Majority Banks, and shall have
accepted such appointment, within seven days after the retiring Agent's
giving of notice of resignation or the Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Administrative Agent or Issuing and Paying Agent, as
the case may be, which shall be a commercial bank organized under the laws
of the United States of America or any state thereof and having a combined
capital and surplus of at least $100,000,000. Except for the automatic
appointment of the Issuing and Paying Agent as Administrative Agent upon
resignation or removal of the Administrative Agent, each appointment of a
successor Agent hereunder shall require the consent of the Borrowers,
which consent shall not be unreasonably withheld. Upon the acceptance of
any appointment as an Agent hereunder by a successor Agent,
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such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal
hereunder, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was such
Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. No Waiver; Cumulative Remedies. No failure
or delay on the part of the Administrative Agent, the Issuing and Paying
Agent, any Bank, any Issuing Bank or any holder of any Note in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.02. Amendments, Etc. No amendment,
modification or waiver of any provision of this Agreement or of the Notes,
nor consent to any departure by either Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Majority Banks (or by the Agent on behalf of the Majority Banks), and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) waive any of the conditions specified
in Article III, (b) increase the Commitments of the Banks or subject the
Banks or any Issuing Bank to any additional obligations, (c) reduce the
principal of, or interest on, the Notes or any fees hereunder, (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes
or any fees hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any action
hereunder, (f) release any guarantor of the Obligations, other than the
release of WMX from the WMX Guaranty as provided for, and in accordance
with the terms of, Section 8.15, (g) release all or a substantial portion
of the Collateral, other than as required for any Unsecured Period pursuant
to the terms of Section 8.15; provided further that no amendment, waiver or
consent subjecting either the Agent or the Issuing and Paying Agent to any
additional obligations or otherwise affecting the Agent or the Issuing and
Paying Agent shall be effective, unless in writing and signed by the Agent
or the Issuing and Paying Agent, as applicable, in addition to the
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Banks required by the above provisions of this Section; and provided
further, that no amendment of the provisions of Sections 5.02(h)(iv) or
(v) may be made without the consent of WMX.
SECTION 8.03. Notices, Etc. All notices, requests,
demands, directions and other communications provided for hereunder shall
be in writing (including telex or facsimile communication) and mailed or
telexed or delivered or sent by courier service or facsimile transmission
to the applicable party at the addresses indicated below:
If to the Borrowers or either of them:
OHM Corporation
16406 U.S. Route 224 East
P.O. Box 551
Findlay, Ohio 45839-0551
Attention: Vice President, Treasurer
and Assistant Secretary
Telecopier: (419) 424-4985
If to the Administrative Agent:
Citicorp USA, Inc.
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Emily Rosenstock, Vice President
Telecopier: (312) 993-1050
If to the Issuing and Paying Agent:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Agency Management Services - Illinois
Telecopier: (312) 974-9101
If to any Bank:
at the address of its Domestic Lending Office
or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery
with the terms of this Section. If any notice is sent with respect to a
Default or Event of Default at any time while the WMX Guaranty is
outstanding, a copy of such notice shall be sent to WMX at the following
address: WMX Technologies, Inc., 3003 Butterfield Road, Oak Brook,
Illinois 60521, Attention: Chief Financial Officer, Telecopier: (708)
572-1340, provided, that any failure or delay in delivering such copy
shall not affect the effectiveness of such notice. All such
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notices, requests, demands, directions and other communications shall,
when mailed or telexed or sent by courier service, be effective when
deposited in the mails or telexed, answerback received, or delivered to
the courier service, respectively, addressed as aforesaid, except that
notices or requests or directions to either the Administrative Agent or
the Issuing and Paying Agent pursuant to any of the provisions of Articles
II, III, IV or V shall not be effective until received by the
Administrative Agent or the Issuing and Paying Agent, as applicable.
SECTION 8.04. Costs and Expenses. The Borrowers jointly
and severally agree to pay on demand all reasonable out-of-pocket costs and
expenses of the Administrative Agent and each Issuing Bank in connection
with the preparation, printing, execution and delivery of this Agreement,
the Notes, the Letters of Credit and the other instruments and documents
to be delivered hereunder, and all amendments, waivers, modifications and
extensions hereof or thereof, including, without limitation, customary
issuance fees of each Issuing Bank in connection with the issuance of
Letters of Credit and the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent and each Issuing Bank with respect to
the foregoing, and of local counsel, if any, who may be retained by said
counsel with respect thereto, and all reasonable costs and expenses, if
any, of the Administrative Agent, the Issuing and Paying Agent, each
Issuing Bank or any Bank in connection with the enforcement of this
Agreement, the Notes, the Letters of Credit and the other instruments and
documents to be delivered hereunder.
SECTION 8.05. Obligations Several. The obligation of
each Bank hereunder is several, and none of the Administrative Agent, the
Issuing and Paying Agent, any Bank or any Issuing Bank shall be
responsible for the obligation and Commitment of any other Bank hereunder,
nor will the failure of any Bank to perform any of its obligations
hereunder relieve the other Banks from the performance of their respective
obligations hereunder. Nothing contained in this Agreement and no action
taken by the Banks pursuant hereto shall be deemed to constitute the Banks
a partnership, association, joint venture or other entity.
SECTION 8.06. Right of Setoff. Upon the occurrence and
during the continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or
for the credit or the account of either Borrower against any and all of
the obligations of such Borrower now or hereafter owing under this
Agreement, the Notes and the Letters of Credit (including, without
limitation, unmatured reimbursement obligations under Letters of Credit).
The rights of each Bank under this Section are in addition to
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other rights and remedies (including, without limitation, other rights of
setoff) which such Bank may have.
SECTION 8.07. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 8.08. Binding Effect; Assignment. (a) This
Agreement shall be binding upon and inure to the benefit of each Borrower,
the Administrative Agent, the Issuing and Paying Agent, each Issuing Bank
and each Bank and their respective successors and assigns, except that no
Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of all of the Banks.
(b) Each Bank shall have the right to sell or assign all
or any part of its Commitment, Advances, Notes, Letter of Credit
participations, and other rights and obligations under this Agreement and
related documents (such transfer, an "Assignment") to any commercial
lender, other financial institution or other entity (an "Assignee");
provided, however, that (i) any Assignment to an entity other than an
Affiliate of the Assigning Bank, a commercial lender or financial
institution shall require the consent of the Administrative Agent and OHM,
such consent not to be unreasonably withheld and (ii) any assignment to an
entity other than an Affiliate of the Assigning Bank shall require the
consent of all Issuing Banks, such consent not to be unreasonably
withheld; and provided, further, that (1) each such assignment shall be of
a constant, and not a varying, percentage of all rights and obligations
under this Agreement; (2) the amount of the Commitment of the assigning
Bank being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than the lesser of (i) $5,000,000 and (ii) 100%
of the assigning Bank's remaining Commitment; (3) the parties to each such
assignment shall execute and deliver to the Administrative Agent and the
Issuing and Paying Agent for acceptance and recording, an Assignment and
Acceptance; and (4) the parties to each such assignment shall pay to the
Issuing and Paying Agent a processing fee of $3000. Upon such Assignment
becoming effective, the assigning Bank shall be relieved from the portion
of the Commitment, obligations to indemnify the Agent and other
obligations hereunder to the extent assumed and undertaken by the
Assignee, and to such extent the Assignee shall have the rights and
obligations of a "Bank" hereunder. Upon such execution, delivery and
acceptance, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
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have the rights and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such assignment and
Acceptance, relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrowers or the performance or observance by the
Borrowers of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Administrative Agent, the Issuing and Paying Agent, such
assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and authorizes the Administrative Agent and the
Issuing and Paying Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the
Administrative Agent and the Issuing and Paying Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required
to be performed by it as a Bank.
(d) The Issuing and Paying Agent shall maintain at its
address referred to in Section 8.03 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the Commitment of
each Bank from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error,
and the Borrowers, the Administrative Agent and the Issuing and Paying
Agent and the Banks may treat each Person whose name is recorded in the
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Register as a Bank hereunder, as their respective interests may appear,
for purposes of this Agreement. The Register shall be available for
inspection by the Borrowers or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee together with any Notes
subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit A hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrowers. Within five Business Days after
its receipt of such notice, the Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent in exchange for the
surrendered Notes, a Note to the order of such assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained a Commitment hereunder, a new Note
to the order of the assigning Bank in an amount equal to the Commitment
retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit B
hereto.
(f) Each Bank shall also have the right to grant or sell
a participation (a "Participation") in all or any part of its Commitment,
Advances, Notes and Letter of Credit participations to an Affiliate of
such Bank, any commercial lender or other financial institution, or, with
the consent of the Administrative Agent and OHM, not to be unreasonably
withheld, any other entity (a "Participant"); provided however, that (i)
no Participant shall have any direct rights hereunder, (ii) the Borrowers,
the Administrative Agent and the Issuing and Paying Agent, each Issuing
Bank, and the Banks other than the selling Bank shall deal solely with the
selling Bank and shall not be obligated to extend any rights or make any
payments to, or seek any consent of, the Participant, (iii) no
Participation shall relieve the selling Bank from its Commitment to make
Advances hereunder and to participate in Letters of Credit, or from any of
its other obligations hereunder, and such Bank shall remain solely
responsible for the performance thereof, and (iv) no Participant, other
than an affiliate of the selling Bank, shall or shall be entitled to
require such selling Bank to take or omit to take any action hereunder,
except that such Bank may agree with such Participant that such Bank will
not, without such Participant's consent, take any action which would, in
the case of any principal, interest or fee in which the Participant has an
ownership or beneficial interest, (A) extend the final maturity of any
Advances or extend the Stated Termination Date, (B) reduce the interest
rate on the Advances or the rate of fees paid on the
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Commitment or the Letters of Credit, (C) forgive any principal of, or
interest on, the Advances or any fees, (D) increase the amount of the
Total Commitment, or (E) release all or substantially all of the
Collateral.
(g) Notwithstanding any other provision contained in
this Agreement or any of the other Transaction Documents to the contrary,
any Bank may, without notice or consent of any kind, at any time assign or
grant a security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Advances owing to it) and
the other Transaction Documents (including, without limitation, the Notes)
in favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System.
(h) Any Bank and the Administrative Agent may, in
connection with any such Assignment or Participation, disclose to the
Assignee or Participant or to any prospective Assignee or Participant any
nonpublic information relating to the Borrowers furnished by or on behalf
of any of them to such Bank or the Administrative Agent, provided that
such Assignee or Participant, or prospective Assignee or Participant,
agrees to maintain the confidentiality thereof.
SECTION 8.09. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 8.10. MUTUAL WAIVER OF JURY TRIAL. BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE
MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER
THAN ARBITRATION RULES), EACH OF THE PARTIES DESIRES THAT ITS DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, EACH OF THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM IN RESPECT
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. EACH OF
THE BORROWERS, THE ADMINISTRATIVE AGENT, THE ISSUING AND PAYING AGENT AND
EACH BANK HEREBY EACH AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 8.11. CONSENT TO JURISDICTION; SERVICE OF
PROCESS. (a) SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE,
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EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT, THE ISSUING AND PAYING
AGENT AND EACH OF THE BANKS HEREBY AGREE TO THE EXCLUSIVE JURISDICTION OF
THE FEDERAL COURTS OF THE NORTHERN DISTRICT OF ILLINOIS AND THE SOUTHERN
DISTRICT OF THE STATE OF NEW YORK OR, IF THE FEDERAL COURT LACKS
JURISDICTION, TO THE STATE COURTS LOCATED WITHIN COOK COUNTY ILLINOIS AND
NEW YORK COUNTY, NEW YORK AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM
NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREE
THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE
AGENT, THE ISSUING AND PAYING AGENT, THE BANKS AND THE BORROWERS OR THE
CONDUCT OF ANY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT, ANY OF THE
OTHER TRANSACTION DOCUMENTS OR OTHERWISE SHALL BE HEARD ONLY IN THE COURTS
DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING THE ADMINISTRATIVE AGENT,
THE ISSUING AND PAYING AND THE BANKS SHALL HAVE THE RIGHT TO BRING ANY
ACTION OR PROCEEDING AGAINST EITHER OF THE BORROWERS OR ITS PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTION AS THE ADMINISTRATIVE AGENT, THE
ISSUING AND PAYING AGENT AND/OR BANK DEEMS NECESSARY OR APPROPRIATE IN
ORDER TO REALIZE ON THE SECURITY FOR THE OBLIGATIONS AND LIABILITIES OWING
TO THEM BY THE BORROWERS HEREUNDER AND UNDER THE OTHER TRANSACTION
DOCUMENTS.
(b) EACH OF THE BORROWERS HEREBY WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED
TO SUCH BORROWER AT ITS ADDRESS SET FORTH IN SECTION 8.03 AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED THREE (3) DAYS AFTER THE SAME SHALL
HAVE BEEN SO DEPOSITED IN THE U.S. MAIL.
(C) NOTHING IN THIS SECTION 8.11 SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT, THE ISSUING AND PAYING AGENT OR THE BANKS TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF THE ADMINISTRATIVE AGENT, THE ISSUING AND PAYING AGENT AND/OR THE
BANKS TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OF THE BORROWERS OR
ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 8.12. Remedies. The Administrative Agent's, the
Issuing and Paying Agent's and each Bank's rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and
remedies which such Persons may have under any other agreement, including
without limitation, the other Transaction Documents, by operation of law
or otherwise.
SECTION 8.13. Severability of Provisions. Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
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SECTION 8.14. Indemnities.
(a) The Borrowers hereby jointly and severally agree
to indemnify and hold harmless the Banks, the Administrative Agent, the
Issuing and Paying Agent and each Issuing Bank and each of their
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 this Agreement or any use of any Letter of Credit or the proceeds of
any Advance.
(b) To the full extent permitted by applicable law,
the Borrowers hereby jointly and severally agree to defend, indemnify and
hold harmless the Banks, the Administrative Agent, the Issuing and Paying
Agent and each Issuing Bank and each of their affiliates and their
respective directors, officers, employees and agents from and against any
and all loss, cost, expense or liability incurred in connection with any
and all claims or proceedings (whether brought by private party or
governmental agencies) for bodily injury, property damage, abatement or
remediation, environmental damage or impairment or any other injury or
damage resulting from or relating to any hazardous or toxic substance or
contaminated material located upon or migrating into, from or through the
property of either Borrower (whether or not the release of such materials
was caused by any of such Persons, a tenant or subtenant or a prior owner
or tenant on any such property and whether or not the alleged liability is
attributable to the handling, storage, generation, remediation,
transportation or disposal of such substance or the mere presence of the
substance on any such property), which any such indemnified party may
incur due to the making of loans to either Borrower, the exercise of any
of its rights under this Agreement, or otherwise. For purposes of this
indemnity, hazardous or toxic substances or contaminated material includes
but is not limited to oil and petroleum products and those substances
within the scope of all federal, state and local environmental laws,
regulations and ordinances, including, without limitation, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act and the Superfund Amendment and
Reauthorization Act of 1986. This indemnity will survive foreclosure of
any mortgage or conveyance in lieu of foreclosure and the repayment of the
Notes and the discharge and release of any mortgage and any other loan
documents.
SECTION 8.15. The Transaction Documents; Actions by the
Banks; Release and Re-Grant of Collateral; Release of WMX Guaranty. (a)
Each Bank and each Issuing Bank hereby consents
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and agrees to the terms of the Transaction Documents and authorizes and
directs the Administrative Agent and Issuing and Paying Agent to execute
the Transaction Documents. Each Bank and each Issuing Bank hereby agrees,
and each holder of any Note by the acceptance thereof will be deemed to
agree, that any action taken by the Majority Banks, the Issuing and Paying
Agent or the Administrative Agent (as appropriate), in accordance with the
provisions of this Agreement or the Transaction Documents, and the exercise
by the Majority Banks, the Issuing and Paying Agent or the Administrative
Agent (as appropriate), of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Banks, Issuing Banks and the holders
of any Note.
(b) Prior to the indefeasible payment in full of the
Obligations, the release of any Collateral may occur only as follows:
(i) the Issuing and Paying Agent, on behalf of the
Banks, shall release the Lien on any Collateral to the extent
sold, assigned, transferred or otherwise disposed of in
accordance with Section 5.02(c);
(ii) the Majority Banks may direct the Issuing and
Paying Agent to release the Lien on any Collateral; provided,
that in no event may all or a substantial portion of the
Collateral be released under this clause (ii) without the prior
written consent of all Banks; and
(iii) upon the Borrowers' written request in the form
attached hereto as Exhibit J, delivered to the Administrative
Agent and the Issuing and Paying Agent at any time after the
delivery to the Banks of the required financial statements and
compliance documentation pursuant to Section 5.03 for any fiscal
quarter ending on or after December 31, 1995, the Issuing and
Paying Agent shall release all of the Collateral if (A) the
Borrowers' performance as of the end of the fiscal quarter most
recently ended satisfies the conditions for Level 2 set forth on
the Facility B Rate Determination Table and (B) prior to or
simultaneously with such release, WMX shall have released all
liens and security interests in its favor with respect to any
property of either Borrower.
At any time following the release of Collateral pursuant to clause (iii)
above, the Borrowers will, upon the direction of the Majority Banks, be
required to execute any necessary collateral documents and re-grant all
such Collateral to the Issuing and Paying Agent for the benefit of the
Banks, (A) if the WMX Guaranty has been released pursuant to subsection
(c) below, and the Borrowers' financial performance has failed, as of the
end of any fiscal quarter, to satisfy the conditions for Level 4 set forth
on the Facility B Rate Determination Table, or (B) if the
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WMX Guaranty is still in effect, if (i) the Borrowers' financial
performance has failed, as of the end of any fiscal quarter, to satisfy
the conditions for Level 4 set forth on the Facility B Rate Determination
Table, and (ii) the aggregate outstanding Advances plus the aggregate
undrawn face amount of outstanding Letters of Credit, plus the aggregate
unpaid reimbursement obligations with respect to the Letters of Credit,
computed as an average daily amount, exceeds the amount of the Total A
Commitment for either (A) the thirty day period prior to the occurrence of
such failure or (B) any thirty day period so long as such failure
continues.
(c) Upon the written request of the Borrowers prior to
the one hundred twentieth (120th) calendar day following the Effective
Date, which request certifies the Borrowers' intent to use a guaranty by
WMX in support of other Indebtedness of the Borrowers, the Administrative
Agent and the Issuing and Paying Agent shall release and terminate the WMX
Guaranty in whole or in part, as requested by the Borrowers.
SECTION 8.16. Termination of Prior Credit Agreement.
On the Effective Date, the Prior Credit Agreement shall terminate and,
together with the "Notes" issued thereunder (the "Prior Notes"), shall
cease to be of any further force or effect (other than rights of
indemnification set forth therein, which shall survive such termination).
Each Bank shall use its reasonable efforts to return the Prior Notes
issued to it to the Borrowers for cancellation on or before the Effective
Date; provided, that in the event that any Bank fails to return its Prior
Note on or before the Effective Date, the Effective Date shall
nevertheless occur, and each such Bank agrees to indemnify and hold the
Borrowers harmless from and against any and all liability, loss, damage,
and expense, including reasonable legal fees and expenses, in connection
with, or arising out of, the issuance of such Bank's Note or the failure
to return such Prior Note.
SECTION 8.17. Headings. The Article and Section
headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any
other purpose.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWERS:
OHM CORPORATION
Attest: By_________________________________
Title:
__________________________
Secretary
OHM REMEDIATION SERVICES CORP.
By_________________________________
Title:
Commitment: BANKS
$25,000,000 CITICORP USA, INC., Individually
and as Administrative Agent
By_________________________________
Vice President
BANK OF AMERICA ILLINOIS,
as Issuing and Paying Agent
By_________________________________
Vice President
$25,000,000 BANK OF AMERICA ILLINOIS
By_________________________________
Title:
$25,000,000 NBD BANK, N.A.
By_________________________________
Title:
$20,000,000 THE FIRST NATIONAL BANK OF BOSTON
By_________________________________
Title:
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$15,000,000 NATIONAL CITY BANK
By_________________________________
Title:
$15,000,000 COMERICA BANK
By_________________________________
Title:
$12,500,000 BHF BANK
By_________________________________
Title:
$12,500,000 BANK ONE, LIMA, N.A.
By_________________________________
Title:
$150,000,000 TOTAL COMMITMENT
___________
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ANNEX A
to
REVOLVING CREDIT AGREEMENT
Facility A Rate Determination Table
Attached.
83
ANNEX B
to
REVOLVING CREDIT AGREEMENT
Facility B Rate Determination Table
Attached.