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Exhibit 10(h)
Execution Copy
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "Agreement") is made and
executed as of this 31st day of May, 1995 by and among CITICORP USA, INC., as
administrative agent (the "Administrative Agent") for the "Banks" parties to
the "Revolving Credit Agreement" described below, BANK OF AMERICA ILLINOIS, as
issuing and paying agent (the "Issuing and Paying Agent") for such Banks and
WMX TECHNOLOGIES, INC. ("WMX"), with respect to certain financing arrangements
with OHM Corporation and its wholly-owned subsidiary OHM Remediation Services
Corp. (each, a "Borrower" and, collectively, the "Borrowers").
W I T N E S S E T H:
WHEREAS, the Borrowers are parties to that certain Revolving
Credit Agreement dated as of May 31, 1995 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement") with the
financial institutions from time to time party thereto (the "Banks"), the
Issuing and Paying Agent and the Administrative Agent (the Banks, the Issuing
and Paying Agent and the Administrative Agent being referred to collectively
as, the "Lender Parties");
WHEREAS, the Borrowers have granted to the Issuing and Paying
Agent, on behalf of the Lender Parties, in order to secure the "Obligations"
(as defined in the Credit Agreement), a security interest in substantially all
of their personal property;
WHEREAS, WMX has executed that certain Guaranty dated as of
the date hereof (as amended, restated, supplemented or otherwise modified from
time to time, the "WMX Guaranty") pursuant to which WMX has guaranteed the
prompt and complete repayment of the Borrowers' Obligations up to limits set
forth in the WMX Guaranty;
WHEREAS, upon payment by WMX of any of the obligations
pursuant to the WMX Guaranty, WMX shall be entitled, to the extent of such
payment, to seek reimbursement from the Borrowers under applicable principles
of subrogation and under that certain reimbursement agreement dated as of the
date hereof between WMX and the Borrower (the "Reimbursement Agreement");
WHEREAS, the Borrowers have granted to WMX, in order to secure
their respective reimbursement obligations with respect to
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payments by WMX under the WMX Guaranty, a security interest in substantially
all of their personal property; and
WHEREAS, the Administrative Agent and the Issuing and Paying
Agent, each on behalf of itself and the other Lender Parties, and WMX desire to
set forth certain agreements, rights and interests with respect to and in
connection with their respective interests with respect to the Borrowers and
their security interests and liens in and upon the "Collateral" (as defined
below).
NOW, THEREFORE, in consideration of the premises set forth
above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Administrative Agent, the
Issuing and Paying Agent and WMX hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Agent" shall means either the Administrative Agent or the
Issuing and Paying Agent.
"Business Day" means any day on which banks are not required
or authorized to close in New York, New York, Chicago, Illinois or Pittsburgh,
Pennsylvania.
"Claim" shall mean either the Lenders' Claim or the WMX Claim,
as the case may be.
"Collateral" shall mean all property and interests in property
now owned or hereafter acquired by the Borrowers in or upon which a security
interest, lien or mortgage has been or is hereafter granted to the Issuing and
Paying Agent or any of the other Lender Parties under any of the Lender
Documents, or WMX under any of the WMX Documents, or, in each case, under any
other documents, instruments or writings executed by either Borrower and
delivered to the Issuing and Paying Agent, any other Lender Party or WMX in
connection therewith.
"Enforcement" shall mean, collectively or individually, any
demand for payment or acceleration of the indebtedness of the Borrowers owing
to the Lender Parties or WMX, as the case may be, repossession of any of the
Collateral, exercise of any set- off rights, or commencement of judicial
enforcement of any of the rights and remedies under the Lender Documents, the
WMX Documents, any related agreements or applicable law.
"Enforcement Notice" shall mean a written notice delivered
pursuant to Section 2.01 hereof at a time when a Lender Default or a
Reimbursement Default has occurred and is continuing, announcing the intent of
the party delivering such notice to commence Enforcement, which notice shall
(i) if given
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by either Agent, state that a Lender Default has occurred and is outstanding,
or if given by WMX, state that a Reimbursement Default has occurred and is
outstanding, (ii) set forth the current balance of the Lenders' Claim or the
WMX Claim, as applicable, and (iii) request the current balance of the other
Claim.
"Enforcement Stay Period" shall mean, with respect to any
Enforcement Notice, a period of time beginning on the date of receipt of such
Enforcement Notice by the intended recipients thereof, and ending at the close
of business on the 10th Business Day thereafter, or on such earlier date as the
Agents and WMX may agree.
"Lender Default" shall mean an "Event of Default" (as defined
in the Credit Agreement).
"Lender Documents" shall mean the "Transactions Documents" (as
defined in the Credit Agreement).
"Lender Group" means each of (a) the Lender Parties and (b)
WMX.
"Lenders' Claim" shall mean all of the "Obligations" (as
defined in the Credit Agreement) of the Borrowers to the Lender Parties,
including, but not limited to, all outstanding credit extended by the Lender
Parties to or for the benefit of the Borrowers at any time in connection with
the Lender Documents, any interest thereon, any fees and expenses in connection
therewith, and any costs or expense of collection or enforcement, including
reasonable attorneys' and paralegals' fees and costs.
"Lenders' Pro Rata Share" shall mean, with respect to any
proceeds of Collateral, payments, or amounts received by exercise of any
set-off, a fraction calculated at the time such proceeds arise or such payments
or amounts are received, but prior to the application thereof to the Lenders'
Claim or the WMX Claim, the numerator of which is the amount of the Lenders'
Claim, and the denominator of which is the sum of the Lenders' Claim and the
WMX Claim.
"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.
"Reimbursement Default" shall mean any failure by the
Borrowers to reimburse WMX with respect to the WMX Claim under applicable
principles of subrogation or in accordance with the terms of the Reimbursement
Agreement.
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"Sale Notice" shall mean a written notice delivered a any time
following the expiration of an Enforcement Stay Period by either Agent to WMX
or by WMX to the Agents, as the case may be, stating the intent of the party
delivering such notice to conduct either a public or private sale of all or a
portion of the Collateral, which notice shall, in reasonably sufficient detail,
(i) specify the time and place of such sale, (ii) indicate whether such sale is
a public or private sale, and (iii) identify the Collateral which will be the
subject of such sale.
"WMX Claim" shall mean, at any time, the outstanding claim of
WMX against the Borrowers at such time, under applicable legal or equitable
principles of indemnity or subrogation or under the Reimbursement Agreement
between WMX and the Borrowers, following payment by WMX under the WMX Guaranty,
together with any costs or expenses of collection or enforcement, including
reasonable attorneys, and paralegals' fees and costs; provided, however, that
if for any purpose hereunder the amount of the WMX Claim is to be determined
prior to the time a payment is made under the WMX Guaranty, or at any time that
a partial draw has been made on the Guaranty and further amounts may be drawn
under the Guaranty, the amount of the WMX Claim shall be deemed to be equal to
the then applicable WMX Guaranty Cap.
"WMX Documents" shall mean the Reimbursement Agreement, that
certain Security Agreement between the Borrowers and WMX dated as of the date
hereof, and that certain Pledge Agreement between OHM and WMX dated as of the
date hereof.
"WMX Guaranty Cap" shall mean, at any time, the then
applicable "Guaranteed Amount" under and as defined in the WMX Guaranty, or, if
WMX's liability under the WMX Guaranty shall have been limited pursuant to
Section 3(c) of the WMX Guaranty, such lesser amount to which such liability
shall have been so limited.
"WMX' Pro Rata Share" shall mean, with respect to any proceeds
of Collateral, payments, or amounts received by exercise of any set-off, a
fraction, calculated at the time such proceeds arise or such payments or
amounts are received, but prior to the application thereof to the Lenders'
Claim or the WMX Claim, the numerator of which is the amount of the WMX Claim,
and the denominator of which is the sum of the Lenders' Claim and the WMX
Claim.
SECTION 2. Intercreditor Agreement.
2.01. Enforcement Notices; Enforcement Stay Period;
Enforcement. Before commencing Enforcement against either Borrower, the Agents
shall deliver an Enforcement Notice to WMX. Before commencing Enforcement
against either Borrower, WMX shall deliver an Enforcement Notice to the Agents
with a copy to the Borrowers. None of the Lender Parties shall commence
Enforcement
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with respect to any Lender Default referenced in an Enforcement Notice given by
the Agents during the Enforcement Stay Period with respect to such Enforcement
Notice, provided that during such Enforcement Stay Period, demand for payment
may be made, the maturity of any portion of the Lender's Claim may be
accelerated, and any commitment to extend credit pursuant to the Credit
Agreement may be terminated. WMX shall not commence Enforcement with respect
to any Reimbursement Default referenced in an Enforcement Notice given by WMX
during the Enforcement Stay Period with respect to such Enforcement Notice
provided that such Enforcement Stay Period, demand for payment may be made.
Notwithstanding the foregoing, the Lender Parties and WMX may each commence
Enforcement without giving a prior Enforcement Notice or prior to the
expiration of an Enforcement Stay Period if a petition is filed by or against
either Borrower for relief under title 11 of the United States Code, as amended
from time to time, or under any similar state statute. Each Lender Group may
join with the other Lender Group in such other Lender Group's Enforcement.
The Agents and WMX each agree to use good faith efforts to
cooperate with respect to any proposed or continuing Enforcement in order to
maximize the amount of proceeds obtained therefrom. The Agents and WMX agree
to exchange, upon request, information regarding the Collateral (including, but
not limited to, appraisals and third party offers to purchase, or inquiries as
to, the Collateral). Each Lender Group agrees to use its best efforts to
notify the other Lender Group, prior to incurring any material expense in
connection with Enforcement, or with any appraisal of or evaluation of the
Collateral.
2.02. Sale Notice. If either Lender Group intends to
conduct a public or private sale of any of the Collateral, then such Lender
Group shall provide a Sale Notice with respect to such Collateral being sold.
To be effective, such Sale Notice must be delivered in one of the manners set
forth in Section 3.01 hereof, with an actual or deemed receipt date (pursuant
to the provisions of Section 3.01) at least ten (10) days prior to such
proposed sale.
2.03. The Collateral; Distribution of Proceeds of
Collateral. The Agents and WMX each acknowledge and agree that the Borrowers
have, pursuant to the Lender Documents and the WMX Documents, granted liens and
security interests in all of the Collateral to both the Issuing and Paying
Agent (for the benefit of the Lenders) and WMX. To the extent that either
Agent or WMX receives at any time while a WMX Claim is outstanding, or at any
time after the obligations under the Credit Agreement have become due by their
terms at maturity or the Administrative Agent has accelerated the maturity of
the obligations under the Credit Agreement and terminated the Banks' agreement
to lend under the Credit Agreement, whether or not a payment has been made by
WMX under the WMX Guaranty, proceeds of any Collateral, or payments
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in respect of the WMX Claim or the Lenders' Claim (including any amounts
received by exercise of set-off), such proceeds or payments (net of the
reasonable costs of enforcement and collection) shall be held in trust (until
distributed or retained as set forth below) and shall be promptly paid (or
retained) as follows:
(a) The Lenders' Pro Rata Share of such net
proceeds or payments shall be paid to (or retained by) the Agents; and
(b) WMX' Pro Rata Share of such net proceeds or
payments shall be paid to (or retained by) WMX.
Amounts paid to or retained by the Agents pursuant to clause (a) above shall be
applied in accordance with the Lender Documents, and amounts paid to or
retained by WMX pursuant to clause (b) above shall be applied in accordance
with the WMX Documents; provided, that any amounts so paid to or retained by
WMX prior to WMX's having made payment under the WMX Guaranty shall be held by
WMX as cash collateral for the Borrowers' contingent obligations under the
Reimbursement Agreement. By its consent hereto, each of the Borrowers consents
to WMX' so holding or retaining any such proceeds as cash collateral, agrees
that such cash collateral need not be segregated, and agrees that WMX may apply
such cash collateral to the Borrowers' obligation to reimburse WMX for any
payment made by WMX under the WMX Guaranty.
Upon the Lenders' receipt of payment in full in cash
(including any amounts received by exercise of any set-off) of the Lenders'
Claim while the WMX Claim is still outstanding, all further proceeds of
Collateral shall be paid to or retained by WMX and applied toward satisfaction
of the WMX Claim, and upon payment in full in cash (including amounts received
by exercise of any set-off) of the WMX Claim while the Lenders, Claim is still
outstanding, all further proceeds of Collateral shall be paid to or retained by
the Agents in satisfaction of the Lenders' Claim. If both the Lenders' Claim
and the WMX Claim shall have been paid in full (in cash), all further proceeds
of Collateral shall be paid to the Borrowers or as otherwise required by law.
2.04. Invalidated Payments. To the extent that any
payments on the Lenders' Claim or the WMX Claim, or any application of any
proceeds of Collateral to the reduction of the Lenders' Claims or the WMX
Claim, are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other
Person under any bankruptcy law, state or federal law, common law, or equitable
cause, then, to the extent of such payment or proceeds application, the
Lenders' Claim or the WMX Claim, or part thereof, as the case may be, intended
to be satisfied shall be revived and continue in full force and effect as if
such payments or proceeds had not been received.
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2.05. Additional Collateral. To the extent that either
Agent, any other Lender Party or WMX is granted a lien upon or security
interest in any additional real or personal property to secure the repayment or
performance of the Lenders' Claim or the WMX Claim, such additional collateral
shall be deemed Collateral hereunder, subject to all of the terms and
provisions hereof.
2.06. Notice of Defaults. (a) The Agents and WMX each
agree to use their good faith efforts to give to the other copies of any notice
of the occurrence or existence of a Lender Default or a Reimbursement Default,
as applicable, sent simultaneously with the sending of such notice to the
Borrowers, but the failure to do so shall not affect the validity of any such
notice to the Borrowers or create a cause of action against the party failing
to give such notice or create any claim or right on behalf of any third party.
The sending of any such notice by or on behalf of a Lender Group shall not give
the other Lender Group any obligation or right to cure such Lender Default or
Reimbursement Default, as applicable.
(b) WMX agrees to give to each of the Agents notice of
any default or event of default (which continues beyond any applicable grace
period) under any indebtedness of WMX with a principal amount of $50,000,000 or
more, or under any of the documents executed in connection with any such
indebtedness, such notice to be given within ten (10) days after WMX has notice
of any such default or event of default, provided, however, that WMX shall have
no liability to the Lender Parties for failure to give such notice with respect
to indebtedness of WMX with a principal amount of less than 5% of the
stockholders' equity of WMX.
2.07. Agency for Perfection. The Agents hereby appoint
WMX, and WMX hereby appoints each of the Agents, as agent for purposes of
perfecting their respective security interests in Collateral. In the event any
party hereto obtains possession of any Collateral, any proceeds arising
therefrom shall be applied in accordance with Section 2.03 above. Without
limiting the generality of the foregoing, the Issuing and Paying Agent hereby
agrees that it shall hold the stock certificates evidencing the issued and
outstanding stock pledged pursuant to the "Pledge Agreement" (as defined in the
Credit Agreement) as bailee for WMX for purposes of perfecting WMX's lien with
respect to such stock as granted under the WMX Documents. Upon indefeasible
payment in full in cash of the Lenders' Claim, the Issuing and Paying Agent
hereby agrees to deliver the certificates evidencing such stock to WMX, unless
the Issuing and Paying Agent has received prior written notice from WMX that
the WMX Claim has been paid in full. By its consent hereto, each of the
Borrowers hereby authorizes the Issuing and Paying Agent to so deliver the
certificates evidencing such stock to WMX upon indefeasible payment in full in
cash of the Lenders' Claim and the Issuing and Paying Agent shall have no
liability to either Borrower with respect to such
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delivery. Notwithstanding the foregoing, neither Lender Group makes any
representation to the other Lender Group with respect to the perfection or
priority of its security interests in any of the Collateral, and neither Lender
Group shall be liable to the other for failure to properly perfect its security
interests in any of the Collateral.
SECTION 3. Miscellaneous.
3.01. Notices. All notices and other communications
required or desired to be served, given or delivered hereunder shall be in
writing or by a telecommunications device capable of creating a printed record
and recording the date and time of transmission, and shall be addressed to the
party to be notified as follows:
if to WMX, at:
WMX Technologies, Inc.
3003 Butter field Road
Oak Brook, Illinois 60521
Attention: Chief Financial Officer
Telecopy: (708) 572-1340
if to the Issuing and Paying Agent, at
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Service Industries
Telecopy: (312) 828-1974
if to the Agent, at
Citicorp USA, Inc.
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Emily Rosenstock
Vice President
Telecopy: (312) 993-1050
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall
be deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) one
day following delivery thereof to a reputable overnight courier service, with
delivery charges prepaid; or (iv) upon confirmation of receipt thereof if
transmitted by a telecommunications device.
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3.02. Contesting Liens or Security Interests. No Lender
Party shall contest the validity, perfection, priority or enforceability of any
lien or security interest granted by either Borrower to WMX, or petition any
court to equitably subordinate the WMX Claim, and WMX shall not contest the
validity, perfection, priority or enforceability of any lien or security
interest granted by either Borrower to any Lender Party or petition any court
to equitably subordinate the Lenders' Claim. All parties agree all future
security interests granted in any of the Collateral during the term of this
Intercreditor Agreement are subject to the terms of this Intercreditor
Agreement.
3.03. No Additional Rights for Borrower or Other Parties
Hereunder. This Agreement sets forth certain rights and obligations of the two
Lender Groups as between themselves, and is solely for their benefit. In no
event shall the Borrowers or any third party obtain any rights with respect to
any Lender Party or WMX as a result of this Agreement. Without limiting the
generality of the foregoing, if the Agents or WMX shall fail to comply with the
terms of this Agreement, the Borrowers agree that they shall not use such
failure as a defense to any Enforcement under the Lender Documents and/or the
WMX Documents nor assert such failure as a counterclaim or basis for set-off or
recoupment of any kind or nature.
3.04. Independent Credit Investigations. Neither Lender
Group, nor any of the directors, officers, agents or employees of any member of
either Lender Group, shall be responsible to the other Lender Group or to any
other Person for either Borrower's solvency, financial condition or ability to
repay the Lenders' Claim or the WMX Claim, or for statements of either
Borrower, oral or written, or for the validity, sufficiency or enforceability
of the Lenders' Claim or the WMX Claim, the Lenders' Documents, the WMX
Documents, or any liens or security interests granted by either Borrower to any
Lender Party or WMX in connection therewith. Each Lender Group has entered
into its respective financing agreements with the Borrowers based upon its own
independent investigation, and makes no warranty or representation to, nor does
it rely upon any warranty or representation of, the other Lender Group with
respect to matters identified or referred to in this Section 3.04.
3.05. Amendments to Financing Arrangements; Release of
Collateral. Each Lender Group, at any time and from time to time, may enter
into such agreement or agreements with either Borrower as such Lender Group may
deem proper, extending the time of payment of or renewing or otherwise
altering, in accordance with the terms of such documents, the terms of the
Lender Documents (in the case of the Lender Parties) or the WMX Documents (in
the case of WMX) or affecting the security underlying any or all of the
Lenders' Claim (in the case of the Lender Parties) or the WMX Claim (in the
case of WMX), and may
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exchange, sell, release, surrender or otherwise deal with any such security,
without in any way thereby impairing or affecting this Agreement. The Agents
and WMX shall each use its good faith efforts to notify the other of any
amendment of or modification to the Lender Documents or the WMX Documents, as
the case may be, but the failure to do so shall not create a cause of action
against the party failing to give such notice or create any claim or right on
behalf of any third party. The Agents and WMX shall, upon request of the
other, provide copies of all such modifications or amendments and copies of all
other documentation relevant to the Collateral hereunder.
3.06. Amendments. All modifications or amendments of this
Agreement must be in writing and duly executed by an authorized officer of each
party hereto to be binding and enforceable.
3.07. Term. This Agreement shall be effective upon the
execution hereof by the parties hereto, and shall continue in effect and may
not be revoked by any, of the parties hereto prior to the earliest of (a) the
indefeasible payment in full in cash of the Lenders' Claims and the termination
of the Lender Documents, (b) the indefeasible payment in full in cash of the
WMX Claim and the termination of the WMX Guaranty and the WMX Documents, and
(c) the termination of the WMX Guaranty in accordance with its terms without
the WMX Guaranty having been drawn on. The Agreement shall terminate upon the
earlier to occur of (a), (b) and (c) above, provided that the provisions of the
last paragraph of Section 2.03 shall survive such termination.
3.08. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of each of the parties hereto, but does not otherwise create, and shall not be
construed as creating, any rights enforceable by any Person other than the two
Lender Groups.
3.9. Governing Law. This Agreement shall be governed as
to validity, interpretation, enforcement and effect by the laws (including
Section 5-1401 of the General Obligations Law, but otherwise without regard to
conflicts of law principles) and decisions of the State of New York.
3.10. 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 shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
CITICORP USA, INC., as
Administrative Agent
By:______________________________
Title:
BANK OF AMERICA ILLINOIS, as
Issuing and Paying Agent
By:______________________________
Title:
WMX TECHNOLOGIES, INC.
By:______________________________
Title:
By:______________________________
Title:
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ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges and agrees to the foregoing terms
and provisions. By executing this Agreement, each of the undersigned agrees to
be bound by the provisions hereof as they relate to the relative rights of the
Lender Parties and WMX as between themselves, and in the event of any conflict
or inconsistency between the terms of this Agreement and the Lender Documents
or the WMX Documents (or any such other documents as the case may be), the
terms of this Agreement shall govern. Each of the undersigned further agrees,
as provided in Section 3.03 of this Agreement, that the terms of this Agreement
shall not give such undersigned any rights against any Lender Party or WMX, and
agrees that this Agreement may be amended or modified by the Lender Parties and
WMX without the consent of the undersigned.
OHM CORPORATION
By:______________________________
Title:
OHM REMEDIATION SERVICES CORP.
By:______________________________
Title:
Dated as of: May 31, 1995
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